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The Supreme Court has held that advisory boards under draconian preventive detention laws should not behave like mere “rubber-stamping authorities” for the government, but act as safety valves which stand between the capricious use of power by the state and the right to personal liberty.
“An 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,” a three-judge Bench of Chief Justice of India D.Y. Chandrachud, J.B. Pardiwala and Manoj Misra observed in a recent judgment.
Article 22 of the Constitution makes it mandatory for preventive detention laws to form advisory boards consisting of persons qualified to be High Court judges.
Justice Pardiwala, who wrote the judgment, said the requirement to have people qualified to become High Court judges was not an empty formality, but a careful measure to ensure that a detention order of the government was put to robust scrutiny.
These boards, under the various laws, have to review detention orders every three months to see whether there was sufficient cause or not. The boards should consider material placed before them; call for further information; hear the detenu; and submit a report explaining whether or not detention was justified.
The judgment came in an appeal filed by a man ordered by the Telangana police to be detained as a ‘goonda’ under the Telangana Prevention of Dangerous Activities Act, 1986.
The police claimed the man was a threat to “public order”. He was a cause of panic and fear among women. The appellant was accused of making a habit of snatching the ‘mangalsutras’ of his victims in broad daylight.
Justice Pardiwala said it was unfair to deny someone his personal liberty on a mere hypothesis that he was likely to commit a crime, as in the past, which may adversely affect the maintenance of public order.
The apex court said the State had not provided any material to show that the appellant was a threat to public order.
Public order
Justice Pardiwala distinguished between ‘public order’ and ‘law and order’. A problem of ‘law and order’ affected only a few individuals, but an issue of public order influenced the community or the public at large or even the country.
“Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of ‘law and order’ and ‘public order’ is one of degree and extent of the reach,” the court noted.
The judgment clarified that to bring the activities of a person within the expression of “acting in any manner prejudicial to the maintenance of public order” the activities must be of such a nature that the ordinary laws cannot deal with them or prevent subversive activities affecting society.
“Inability on the part of the State’s police machinery to tackle the law and order situation should not be an excuse to invoke the jurisdiction of preventive detention,” the court said.
Quashing the detention order, Justice Pardiwala said none of the FIRs against the appellant named him. The court said it prima facie looked as if he had been picked up by the police on suspicion.
