Controlling the Abuse of State Power

by Sep 8, 2023Blogs0 comments

10 Factors To Be Considered By Courts To Decide Legality Of Preventive Detention: SC


While expressing its strong reservations and so also very strongly condemning the growing derisive and deplorable trend in the State of Telangana of passing orders of preventive detention at the ‘drop of a hat’ without consideration of the liberty and freedom guaranteed to people under the Constitution of India, the Supreme Court in a most learned, laudable, landmark and latest judgment titled Ameena Begum vs The State of Telangana & Ors in Criminal Appeal No _ of 2023 (Arising Out Of SLP (Criminal) No. 8510 Of 2023) and cited as 2023INSC788 and also cited as 2023 LiveLaw (SC) 743 that was pronounced as recently as on September 4, 2023 has most commendably laid down 10 factors to be considered as guidelines by the Court to be followed by the courts while considering the legality of orders of preventive detention. It must be also mentioned here that the Apex Court was considering an appeal against an order of the Telangana High Court that had refused to interfere with the detention order against the husband of the appellant in a writ of habeas corpus filed by her. The challenge was against the detention order passed under Section 3(2) of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act 1986.

Needless to say, the Court found that the acts of the detenu did not qualify as those affecting maintenance of public order as required under the Act. The Court also found that there were no circumstances to invoke the extraordinary provisions of the Preventive Detention Act, when ordinary criminal law provided sufficient means to deal with detenu. The Apex Court thus very rightly quashed the impugned detention order and the judgment of the Telangana High Court and allowed the appeal.


At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Dipankar Datta for a Bench of the Apex Court comprising of Hon’ble Mr Justice Surya Kant and himself sets the ball rolling by putting forth in para 2 that, “Under assail in this appeal is a judgment and order dated 28th June, 2023 of a Division Bench of the High Court for the State of Telangana (“High Court”, hereafter). Vide the impugned judgment, a writ petition W.P. No.9000 of 2023 instituted by the appellant seeking a writ of habeas corpus was dismissed and the order of detention dated 24th March, 2023 (“Detention Order”, hereafter) of the appellant’s husband (“Detenu”, hereafter), impugned therein, upheld.”

Most significantly, what constitutes the nucleus of this notable judgment is then laid bare in para 25 wherein it is propounded that, “Be that as it may, culling out the principles of law flowing from all the relevant decisions in the field, our understanding of the law for deciding the legality of an order of preventive detention is that even without appropriate pleadings to assail such an order, if circumstances appear therefrom raising a doubt of the detaining authority misconceiving his own powers, the Court ought not to shut its eyes; even not venturing to make any attempt to investigate the sufficiency of the materials, an enquiry can be made by the Court into the authority’s notions of his power. Without being remotely concerned about the sufficiency or otherwise of the materials on which detention has been ordered, the Court would be justified to draw a conclusion, on proof from the order itself, that the detaining authority failed to realize the extent of his own powers. This is quite apart from questioning the action for want of sufficient materials that were before the detaining authority. The authority for the detention is the order of detention itself, which the detenu or the Court can read. Such a reading of the order would disclose the manner in which the activity of the detenu was viewed by the detaining authority to be prejudicial to maintenance of public order and what exactly he intended should not be permitted to happen. Any order of a detaining authority evincing that the same runs beyond his powers, as are actually conferred, would not amount to a valid order made under the governing preventive detention law and be vulnerable on a challenge being laid. In the circumstances of a given case, a Constitutional Court when called upon to test the legality of orders of preventive detention would be entitled to examine whether

(i) the order is based on the requisite satisfaction, albeit subjective, of the detaining authority, for, the absence of such satisfaction as to the existence of a matter of fact or law, upon which validity of the exercise of the power is predicated, would be the sine qua non for the exercise of the power not being satisfied;

(ii) in reaching such requisite satisfaction, the detaining authority has applied its mind to all relevant circumstances and the same is not based on material extraneous to the scope and purpose of the statute;

(iii) power has been exercised for achieving the purpose for which it has been conferred, or exercised for an improper purpose, not authorised by the statute, and is therefore ultra vires;

(iv) the detaining authority has acted independently or under the dictation of another body;

(v) the detaining authority, by reason of self-created rules of policy or in any other manner not authorized by the governing statute, has disabled itself from applying its mind to the facts of each individual case;

(vi) the satisfaction of the detaining authority rests on materials which are of rationally probative value, and the detaining authority has given due regard to the matters as per the statutory mandate;

(vii) the satisfaction has been arrived at bearing in mind existence of a live and proximate link between the past conduct of a person and the imperative need to detain him or is based on material which is stale;

(viii) the ground(s) for reaching the requisite satisfaction is/are such which an individual, with some degree of rationality and prudence, would consider as connected with the fact and relevant to the subject-matter of the inquiry in respect whereof the satisfaction is to be reached;

(ix) the grounds on which the order of preventive detention rests are not vague but are precise, pertinent and relevant which, with sufficient clarity, inform the detenu the satisfaction for the detention, giving him the opportunity to make a suitable representation; and

(x) the timelines, as provided under the law, have been strictly adhered to.

Should the Court find the exercise of power to be bad and/or to be vitiated applying any of the tests noted above, rendering the detention order vulnerable, detention which undoubtedly visits the person detained with drastic consequences would call for being interdicted for righting the wrong.”

Most forthrightly, the Bench expounds in para 63 that, “Whenever an accused is tried for an offence under a penal law which carries a maximum sentence, the Court is obliged while imposing sentence to apply its mind to the specific facts and circumstances of the case and to either impose maximum sentence or a lesser sentence. It has, therefore, a discretion regarding imposition of sentence. We are inclined to the view that there could be no warrant for the proposition that when it boils down to confirming an order of detention under a preventive detention law, which is not punitive, the Government can seek immunity and enjoy an unfettered, unguided and unlimited discretion in continuing detention for the maximum period without even very briefly indicating its mind as to the “imponderables” that were taken into account for fixing the maximum period. The very term “maximum period” in section 13 vests the Government with discretion, allowing it to be exercised while considering whether the detention is to be continued for the maximum period of 12 (twelve) months or any lesser period. In our opinion, the relevant provisions of the Act have to be so read as to inhere a safeguard against arbitrary exercise of discretionary power.”


As a corollary, the Bench then holds in para 81 that, “In view of the foregoing discussion, we cannot uphold the Detention Order. As a consequence, the impugned judgment and order of the High Court too cannot be upheld. The Detention Order and the impugned judgment and order stand quashed. The appeal stands allowed, without costs.”

Finally, the Bench concludes by holding in para 82 that, “The appellant’s husband, i.e. the Detenu, shall be released from detention forthwith.”

In sum, it thus merits no reiteration that all the courts in India must always definitely pay heed in totality to what the Apex Court has pointed out in this leading case and always take into account the 10 factors as mentioned hereinabove to decide the legality of the preventive detention orders. Of course, this will definitely go a long way in checking the passing of orders of preventive detention at the ‘drop of a hat’ in blatant violation of the liberty and freedom that is guaranteed to the people under the Constitution of India. No denying it!

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