Supreme Court Quashes Preventive Detention Order Citing Lack of Public Order Threat and Failure to Seek Bail Cancellation

Supreme Court of India set aside a preventive detention order issued against Rajesh, the husband of the appellant, Dhanya M. The detenu, Rajesh, who runs a registered lending firm, was declared a 'notorious goonda' and a threat to society at large by the District Magistrate, Palakkad. This declaration and the subsequent detention order were based on a recommendation from the Palakkad District Police Head and considered four specific criminal cases registered against him between 2020 and 2024.

Aggrieved by the detention order, the appellant filed a writ petition for Habeas Corpus before the High Court of Kerala, challenging the legality of her husband's detention. The High Court then dismissed the petition, finding that the detaining authority was not required to determine if the cases would result in acquittal, that the High Court in writ jurisdiction does not sit in appeal, and that procedural safeguards were complied with.

The appellant in its appealed to the Supreme Court, primarily challenged the detention on the ground that the detenu was already on bail in all the considered cases and was complying with the conditions imposed by the courts.

The question before the Supreme Court was whether the preventive detention of the detenu was in accordance with law? The Apex Court, in answering it, reiterated the well-settled principle that preventive detention is an extraordinary power of the State that must be used sparingly. As it curtails individual liberty in anticipation of future offenses and tha tit should not be used in the ordinary course.

The Apex Court further held that while such power to detention is recognized under Article 22(3)(b) of the Constitution, is considered an exception to Article 21 (Right to Life and Personal Liberty) and should be applied only in rare cases. The Apex Court cited past judgments emphasizing that prescribed safeguards must be strictly observed due to the draconian nature of this measure. The burden is on the detaining authority to prove that such actions conform to the procedure established by law.

Supreme Court Referring to the scheme of the Kerala Anti-Social Activities (Prevention) Act, 2007, which aims to prevent anti-social activities. It noted that a 'goonda' is defined as a person indulging in activities harmful to the maintenance of public order. A 'known goonda' is defined based on being found guilty of certain offences or found in investigations/court proceedings in two separate instances to have committed acts defined as 'goonda' activities. The Section 3 of the Act allows detention of a 'known goonda' by the District Magistrate or Government to prevent anti-social activities. However, the same act mandates disclosure of grounds within five days and limits the maximum detention period to six months.

Emphasizing the distinction between 'public order' situation and a 'law and order' situation, the Supreme Court, drawing upon its previous judgments and held that, while 'law and order' is broader and affected by any contravention of law, 'public order' has a narrower ambit, requiring acts that affect the community or public at large, disturbing the "even tempo of life".

The distinction lies in the degree and extent of the act's reach upon society; an act affecting only a few individuals might be a 'law and order' issue, while one affecting the public at large is a 'public order' issue.

In this case, the Court found that the attending facts and circumstances did not fall under the category of a public order situation. The detention order did not provide reasons explaining how the detenu's actions were against the public order of the State. The detaining authority failed to assign reasons as to why and how the detenu's actions warranted the exercise of the exceptional power of preventive detention. Furthermore, Supreme Court held that the circumstances cited in the detention order, for violating bail conditions, might be grounds for the State to seek cancellation of the detenu's bail, but they did not warrant his preventive detention. Accordingly, the Court set aside the detention order.

Coram: Justice Sanjay Karol and Justice Manmohan.