Landmark Decision: Preventive Detention Declared Illegal in India

The Supreme Court has declared preventive detention as a black law. Live Law reported that in a significant ruling, the Supreme Court discussed the role and duty of the Advisory Boards constituted under the Preventive Detention Laws, on their capricious exercise of power while scrutinising the preventive detention order of the detaining authority passed in a routine and mechanical manner.

“Preventive detention being a draconian measure, any order of detention as a result of a capricious or routine exercise of powers must be nipped in the bud. It must be struck down at the first available threshold and as such, it should be the Advisory Board that must take into consideration all aspects not just the subjective satisfaction of the detaining authorities but whether such satisfaction justifies the detention of the detainee.

The Advisory Board must consider whether the detention is necessary not just in the eyes of the detaining authority but also in the eyes of law,” the Bench Comprising CJI DY Chandrachud and Justices JB Pardiwala and Manoj Misra said.

The aforesaid observation in the Judgment authored by Justice JB Pardiwala came while deciding a plea preferred by a person who was detained by the Telangana Police on the charge of chain snatching alleging that such an act of the detainee breached the ‘public order’ in the locality making women unsafe.

Though, the court quashed the preventive detention order citing the reasoning that the activities of the detainee didn’t breach the ‘public order’ to justify his preventive detention, but underscored the role and importance of the Advisory Board while deciding the validity of the detention order passed by the detaining authority.

Specifically, the court referred to Section 12 of the Telangana Prevention of Dangerous Activities Act, 1986 (“1986 Act”), which provides that the report of the advisory board constituted under the act would be binding on the detaining authority and the detainee is forthwith required to be released if the report belives opinion that no sufficient cause exists for the detention of the detainee.

The court questioned the role of the advisory board which acted casually and mechanically without scrutinising the order passed by the detaining authority.

“We fail to understand what other purpose the Advisory Board encompassing High Court judges or their equivalent as members would serve if the extent of their scrutiny of the order of detention is confined just to the subjective satisfaction of the detaining authority. The entire purpose behind the creation of an Advisory Board is to ensure that no person is mechanically or illegally sent to preventive detention.

In such circumstances, the Advisory Boards are expected to play a proactive role. The Advisory Board is a constitutional safeguard and a statutory authority. It functions as a safety valve between the detaining authority and the State on one hand and the rights of the detainee on the other.

The Advisory Board should not just mechanically proceed to approve detention orders but is required to keep in mind the mandate contained in Article 22(4) of the Constitution of India.”, the court observed.

The court clarified that being a draconian law, any order of detention passed mechanically or routinely should be struck down at the threshold. “it should be the Advisory Board that must take into consideration all aspects not just the subjective satisfaction of the detaining authorities but whether such satisfaction justifies detention of the detainee. The Advisory Board must consider whether the detention is necessary not just in the eyes of the detaining authority but also in the eyes of the law,” the court said.

“The requirement of having persons who have been or are qualified to be High Court judges in the Advisory Board is not an empty formality, it is there to ensure that, an order of detention is put to robust scrutiny and examined as it would have been by any ordinary court of law. Otherwise, the purpose of independent scrutiny could very well have been served by having any independent persons, and there would have been no need to have High Court judges or their equivalent. Thus, it is imperative that whenever an order of detention is placed before an Advisory Board, it duly considers every aspect, not just those confined to the satisfaction of the detaining authority but the overall legality as per the law that has been laid down by this court,” the court noted.