• The Supreme Court said that a preventive detention order can only be passed if the activities of the detenu affects or are likely to adversely affect the maintenance of public order.

• The apex court said this as it quashed the Telangana government’s detention order against a man, booked in several criminal cases related to fraud and forgery, saying that for ‘public order’ to be disturbed.

• The SC bench, while referring to earlier verdicts of the court in Madhu Limaye case of 1970, on the interpretation of ‘public order’ said that to tear these observations out of context would be fraught with great danger when it comes to the liberty of a citizen under Article 21 of the Constitution of India.

• “When a person is preventively detained, it is Article 21 and 22 that are attracted and not Article 19. Further, preventive detention must fall within the four corners of Article 21 read with Article 22 and the statute in question,” it added.

• Article 21 deals with protection of life and personal liberty. It states that, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

• Article 22 deals with protection against arrest and detention in certain cases.

Preventive detention 

• The objective of preventive detention is to prevent a person from committing a crime. Certain rights are available to such a person as well. He must be informed of the grounds of his arrest.

• Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours.

• Police cannot detain a person beyond three months unless it has permission from an advisory board. Such an advisor board will consist of three judges of SC. 

• Parliament can also prescribe a law providing for detention beyond three months.

Arguments given in favour of preventive detention

Areas in context of which preventive laws can be made are laid down in the Constitution itself in Union List entry 9 related to defence, foreign affairs and security of the country and Concurrent List entry 3 for maintenance of public order, security of state and maintaining essential supply and services. Thus, it checks the arbitrary action by the State.

Criticism on preventive detention

Misuse of such laws have been reported and so it has become a human rights concern. It represents the police power of the State. No other major democratic country mentions preventive detention in its Constitution and such laws come into effect only under emergency conditions.

Court verdicts

In the case of the arrest of Anna Hazare in 2011, SC held that preventive detention law can be invoked only if there is “imminent danger to peace” and a person sought to be arrested is likely to commit a cognisable offence. Otherwise it would violate the victim's fundamental right.

In another judgment, SC held that rhetorical incantation of word “goonda” or “prejudicial to maintenance of public order” cannot be sufficient justification to invoke the draconian powers of preventive detention. It quashed preventive detention of a man who was accused of selling spurious chilli seeds to farmers. 

The SC observed that when sufficient remedies for offence were available under ordinary laws, preventive detention must not be invoked. It cannot be an alternative to normal legal process. Order of preventive detention affects the life and liberty of citizen under Articles 14, 19, 21 and 22, and hence should be used cautiously. It came down heavily on the practice of states to use preventive detention laws to avoid efforts in investigation and prosecution.

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