Preventive detention reserved for exceptional circumstances, not for mundane law and order problems: Supreme Court

A two-judge Bench comprising Justices Surya Kant and Dipankar Datta also berated the Telangana police for having police officers within its ranks who are oblivious to the fundamental rights guaranteed to citizens by the Indian Constitution.   

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ON Monday, the Supreme Court bemoaned the invocation of preventive detention laws at the drop of a hat.

Berating the Telangana police, a two-judge Bench comprising Justices Surya Kant and Dipankar Datta also expressed concern that in the seventh decade of freedom, some police officers seem oblivious of the fundamental rights guaranteed to citizens under the Constitution of India.

"While the nation celebrates Azadi ka Amrit Mahotsav to commemorate 75 years of independence from foreign rule, some police officers of the said state who are enjoined with the duty to prevent crimes and are equally responsible to protect the rights of citizens, seem to be oblivious to the fundamental rights guaranteed by the Constitution," the Bench remarked.

Stating that such police officers are curbing the liberty and freedom of the people, the Bench observed, "The sooner the trend is put to an end, the better."

The Bench passed these strictures while quashing the detention of a man under the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986.

The Bench was acting on a petition filed by the wife of the detenu against the Order of the Telangana High Court passed on June 28, 2023, whereby it refused to quash the detention Order passed on March 23, 2023.

The detention Order revealed that the detenu was detained earlier as well under the 1986 Act on March 4, 2021 under the category of "white collar offender".

But that particular Order had been quashed by the high court on August 16, 2021.

The issue posed before the Bench was whether the alleged acts of commission for which the detenu had been kept under detention are prejudicial to 'public order'.

Secondly, whether all relevant circumstances were considered or whether extraneous factors weighed in the mind of the detaining authority leading to the conclusion that the detenu is a habitual offender and for prevention of further crimes by him, he ought to be detained.

The Bench cited a series of precedents to explain the difference between 'law and order' and disturbances caused to 'public order'.

"For an act to qualify as a disturbance to public order, the specific activity must have an impact on the broader community or the general public, evoking feelings of fear, panic, or insecurity," the Bench said.

The Bench took note of the earlier detention Order which had also failed to differentiate between offences that created a 'law and order' situation and which prejudicially affect or tend to prejudicially affect 'public order'.

The Bench opined that the present detention Order fared no better.

"Even if the offences referred to in the detention Order, alleged to have been committed by the detenu, have led to the satisfaction being formed, still the same are separate and stray acts affecting private individuals and the repetition of similar such acts would not tend to affect the even flow of public life," the Bench highlighted.

The Bench further noted that with regard to the offence in respect of the minor girl, the detenu was given anticipatory bail, but the investigating agency not having elected to have such order quashed by a higher forum.

This, the Bench said, has its own tale to tell.

"Even otherwise, the gravity of the offences alleged in Arun Ghosh (supra) was higher in degree, yet, the same were not considered as affecting 'public order'. The only other offence that could attract the enumerated category of "acting in any manner prejudicial to the maintenance of public order" and an Order of preventive detention, if at all, is the stray incident where the detenu has been charged under Section 353, Indian Penal Code and where the police has not even contemplated an arrest under Section 41 of the Code of Criminal Procedure," the Bench highlighted.

On the overall assessment, the Bench opined that the existing legal framework for maintaining law and order is sufficient to address the offences under consideration, which the commissioner anticipated could be repeated by the detenu if not detained.

"We are also constrained to observe that preventive detention laws— an exceptional measure reserved for tackling emergent  situations— ought not to have been invoked in this case as a tool for enforcement of 'law and order'," the Bench held.

The Bench also noted that the commissioner was aware of the earlier judgment of the high court quashing the detention Order passed ostensibly to maintain 'public order' without once more appreciating the difference between maintenance of 'law and order' and maintenance of 'public order'.

The Bench found the present detention Order indefensible on this count as well.