Preventive detention or curbing fundamental rights?

Even during the liberal Nehruvian Era, laws relating to preventive detention found judicial acceptance far easier that a truly liberal system would. ‘Collective social safety’ got the better of individual rights and freedom. Laws that pointed to the social need to cage the dubbed habitual offender or the anti-national, found judicial nod in the name of social security and safety.

Invariably statutory authorities under the preventive detention laws tragically echoed the voice of the detaining authority and functioned to complete the motions. Correction often came from the judicial corridors. As watchdogs of the constitution, it is the higher echelons of the judiciary that have come to the rescue of the citizen.

A division bench of the State High Court in a recent judgment dealing with a habeas corpus writ petition in yet another instance, dealt with the exercise of such power. The bench of Justice KC Bhanu and Justice C Kodandaram were called upon to deal with a mother’s plea, against the detention of her son who was pursuing engineering.

He was detained in exercise of powers under the AP Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act. It was mentioned that the detenue was involved in 20 offences and was also in defiance of an externment order and indulged in unlawful acts affecting the public order.

The bench speaking through Justice Kodandaram, allowed the petition and cautioned against such insensitive action. It was the case of the petitioner as a student participated in local politics and on account of political rivalry, false cases were being repeatedly foisted against him.

Dealing with the facts of the case, even as pleaded by the State, the bench went on to examine whether the detenu “can be said to have disturbed the maintenance of public order by his acts and conduct alleged in the cases mentioned in the order”.

The bench reasoned that the first condition that needs to be satisfied is a ‘definitive conclusion that the detenue(who is alleged to be a goonda) is acting in a manner prejudicial to the maintenance of public order. The bench went on to hold, “In the light of the facts mentioned in the case, we are unable to agree that the acts and omissions mentioned in the detention order are acts which would disturb the public order and as such, the detention order is not sustainable and hence liable to be quashed.”

The bench would well have topped here but it moved further to sensitise the authorities of the evil consequences of passing a detention order on individuals on petty and unsustainable grounds. “We should not loose sight of the fact that the detenu is 24-years-old and the records would reveal that some case or other is being filed against him since 2004. If the individual is such a serious criminal, the investigation authority ought to have taken steps to carry on investigation effectively and bring the individual to book at the earliest stage, which probably could have served as reformation of the individual.

There is a statutory obligation on police to complete investigation and file a report before the concerned criminal court without unnecessary delay. On the other hand repeatedly registering cases against a youngster barely out of teens, arresting on some offences or the other and thereafter being let off, on account of inadequate material, would only embolden such persons to adopt crime as their way of life.

This is true, all the more, in case of youngsters who see an easy way of living life by indulging in petty offences and crimes.

We hope and trust that high ranking officials who have been given the responsibility of exercising the power under the draconic Acts and empower them to deprive a person of his liberty which is warranted under the Constitution, will be sensitive to the various issues and would consider the consequences, which may result before exercise of the power vested in him under the Preventive Detention Law” Hopefully the sensitisation would target the intended and authorities empowered to police the citizen would understand the responsibility shadowing such immense power and not exercise it in a casual manner to the detriment of personal liberty.