SC Emphasizes Limits on ‘Preventive Detention’, Overturns Telangana HC Order


The Supreme Court, noting that preventive detention is a draconian measure and any such action based on capricious or routine exercise of powers must be halted early, has overturned a Telangana High Court order rejecting a detenu’s appeal.

A bench led by Chief Justice of India D Y Chandrachud emphasized that the fundamental concept of preventive detention is to detain a person not as punishment for something he has done but to prevent him from doing it.

“The state’s police machinery’s inability to address the law-and-order situation should not be a justification for resorting to preventive detention,” the bench, also comprising Justice J B Pardiwala and Justice Manoj Misra, added.

“Preventive detention, being a draconian measure, necessitates the immediate rejection of any order resulting from a capricious or routine exercise of powers. It must be struck down at the first available threshold,” stated the top court.

The appellant was apprehended under the Telangana Prevention of Dangerous Activities Act of 1986 by order of the Rachakonda police commissioner in Telangana on September 12 last year. Four days later, the Telangana High Court dismissed the man’s petition, challenging the detention order.

In its recent ruling, the Supreme Court reiterated that the power under any enactment concerning preventive detention must be exercised with great care, caution, and restraint.

The court emphasized that the pendency of prosecution does not bar an order of preventive detention, nor does an order of preventive detention bar prosecution.

“We are of the opinion that merely registering two FIRs for alleged offenses of robbery etc., could not have been the basis for invoking the provisions of the 1986 Act to preventively detain the appellant, assuming he is a ‘GOONDA’ as defined under Section 2(g) of the Act,” the court remarked.

“What has been alleged against the appellant detenu could be said to have raised issues related to law and order, but we find it difficult to conclude that they impinged on public order,” the bench stated.

The court reiterated that to classify someone as “acting in any manner prejudicial to the maintenance of public order,” the activities must be of a nature that ordinary laws cannot address or prevent subversive activities affecting society.

While the expression ‘law and order’ is broader in scope as contravention of law always affects order, ‘public order’ has a narrower ambit and could be affected only by contraventions that affect the community or the public at large, the top court bench explained.

“The distinction between ‘law and order’ and ‘public order’ lies in the degree and extent of the act’s reach in society. It is the potential of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of public order,” the bench clarified.

The court emphasized that the grounds for the order should be furnished to the detenu, and the decision of the authority must be a natural culmination of the application of mind to the relevant and material facts available on the record.

“While issuing a detention order, the authority must arrive at a proper satisfaction which should be clearly reflected, and in categorical terms, in the order of detention,” the top court added.

According to the Constitution, any law pertaining to preventive detention must provide for the formation of an advisory board consisting of persons who have been or are qualified to be appointed as judges of high courts.

“An advisory board established under preventive detention legislation is required to conduct a thorough scrutiny of an order of detention placed before it, by considering all aspects and angles before expressing any definite opinion in its report,” the Supreme Court stated.

The advisory must consider all aspects justifying the detention and its legality instead of merely confirming the “subjective satisfaction” of the detaining authorities.

Setting aside the high court’s order, the top court annulled the detention order.

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