In a most significant development, we see how the Apex Court in a most learned, laudable, landmark, logical and latest judgment titled Nenavath Bujji Etc vs The State Of Telangana & Ors in Criminal Appeal Nos. 1738-39 of 2024 (Arising out of SLP(Crl.) Nos. 3390-91 of 2024) and cited in Neutral Citation No.: 2024 INSC 239 that was pronounced as recently as on March 21, 2024 has rebuked very strongly the Telangana police for routinely exercising the powers of preventive detention to detain individuals without considering the fundamental rights guaranteed under the Constitution. To put it differently, the Apex Court has also made it indubitably clear that the Telangana government should avoid passing preventive detention orders mechanically without application of mind and ignoring judgments against the same. No denying it.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice JB Pardiwala for a Bench of the Apex Court comprising of Hon’ble CJI Dr Dhananjaya Y Chandrachud, himself and Hon’ble Mr Justice Manoj Misra sets the ball in motion by first and foremost putting forth in para 2 that:
Since, the issues raised in both the captioned appeals are the same; both the appellants are co-detenus and the challenge is also to the self-same judgment and order passed by the High Court those were taken up for hearing analogously and are being disposed of by this common judgment and order.
To put things in perspective, the Bench then envisages in para 4 that:
This appeal is at the instance of a detenu, preventively detained 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, Insecticide 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 (for short, the Act 1986) and is directed against the judgment and order passed by a Division Bench of the High Court for the State of Telangana at Hyderabad (Special Original Jurisdiction) dated 16.09.2023 in Writ Petition No. 26941 of 2023 filed by the appellant herein by which the Division Bench rejected the writ petition and thereby declined to interfere with the order of preventive detention passed by the Commissioner of Police Rachakonda Commissionerate, State of Telangana dated 12.09.2023 in exercise of his powers under Section 3(2) of the Act 1986.
As we see, the Bench then observes in para 7 that:
Thus, from the aforesaid it is evident that the respondent No. 2 herein was subjectively satisfied based on the materials on record that the activities of the appellant detenu were prejudicial to the maintenance of public order. According to the Detaining Authority, i.e., the respondent No. 2, the appellant is a GOONDA as defined under Section 2(g) of the Act 1986 and with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it was felt necessary that the appellant be preventively detained.
As it turned out, the Bench then enunciates in para 8 that:
The appellant detenu being aggrieved by the order of preventive detention preferred Writ Petition No. 26941 of 2023 in the High Court for the State of Telangana at Hyderabad seeking a writ of Habeas Corpus. The High Court vide its impugned judgment and order declined to interfere and accordingly rejected the writ petition.
Do note, the Bench notes in para 29 that:
The ancient prerogative writ of habeas corpus takes its name from the two mandatory words habeas and corpus. ‘Habeas Corpus’ literally means ‘have his body’. The general purpose of these writs as their name indicates was to obtain the production of the individual before a court or a judge. This is a prerogative process for securing the liberty of the subject by affording an effective relief of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody. This is a writ of such a sovereign and transcendent authority that no privilege of power or place can stand against it. It is a very powerful safeguard of the subject against arbitrary acts not only of private individuals but also of the Executive, the greatest safeguard for personal liberty, according to all constitutional jurists.
The writ is a prerogative one obtainable by its own procedure. In England, the jurisdiction to grant a writ existed in Common Law, but has been recognized and extended by statute. It is well established in England that the writ of habeas corpus is as of right and that the court has no discretion to refuse it. Unlike certiorari or mandamus, a writ of habeas corpus is as of right to every man who is unlawfully detained. In India, it is this prerogative writ which has been given a constitutional status under Articles 32 and 226 of the Constitution. Therefore, it is an extraordinary remedy available to a citizen of this Country, which he can enforce under Article 226 or under Article 32 of the Constitution of India.
Be it noted, the Bench notes in para 30 that:
It is the duty of the Court to issue this writ to safeguard the freedom of the citizen against arbitrary and illegal detention. Habeas corpus is a remedy designed to facilitate the release of persons detained unlawfully, not to punish the person detaining and it is not, therefore, issued after the detention complained of has come to an end. It is a remedy against unlawful detention. It is issued in the form of an order calling upon the person who has detained another, whether in prison or in private custody, to ‘have the body’ of that other before the Court in order to let the Court know on what ground the latter has been confined and thus to give the Court an opportunity of dealing with him as the law may require. By the writ of habeas corpus, the Court can cause any person who is imprisoned to be brought before the Court and obtain knowledge of the reason why he is imprisoned and then either set him free then and there if there is no legal justification for the imprisonment, or see that he is brought speedily to trial.
Habeas Corpus is available against any person who is suspected of detaining another unlawfully and not merely against the police or other public officers whose duties normally include arrest and detention. The Court must issue it if it is shown that the person on whose behalf it is asked for is unlawfully deprived of his liberty. The writ may be addressed to any person whatsoever an official or a private individual-who has another in his custody. The claim (for habeas corpus) has been expressed and pressed in terms of concrete legal standards and procedures. Most notably, the right of personal liberty is connected in both the legal and popular sense with procedures upon the writ of habeas corpus. The writ is simply a judicial command directed to a specific jailer directing him or her to produce the named prisoner together with the legal cause of detention in order that this legal warrant of detention might be examined. The said detention may be legal or illegal. The right which is sought to be enforced by such a writ is a fundamental right of a citizen conferred under Article 21 of the Constitution of India, which provides:—
Article 21. Protection of life and personal liberty.—
No person shall be deprived of his life or personal liberty except according to the procedure established by law.
It is worth noting that the Bench notes in para 31 that:
We are of the view that mere registration of the two FIRs for the alleged offences of robbery etc. could not have been made the basis to invoke the provisions of the Act 1986 for the purpose of preventively detaining the appellant herein on the assumption that he is a GOONDA as defined under Section 2(g) of the Act 1986. What has been alleged against the appellant detenu could be said to have raised the problems relating to law and order but we find it difficult to say that they impinged on public order. This Court has time and again reiterated that in order 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.
Summary of the Findings.
Most brilliantly, the Bench postulates in para 43 that:
We summarize our conclusions as under: -
- The Detaining Authority should take into consideration only relevant and vital material to arrive at the requisite subjective satisfaction,
- It is an unwritten law, constitutional and administrative, that wherever a decision-making function is entrusted to the subjective satisfaction of the statutory functionary, there is an implicit duty to apply his mind to the pertinent and proximate matters and eschew those which are irrelevant & remote,
- There can be no dispute about the settled proposition that the detention order requires subjective satisfaction of the detaining authority which, ordinarily, cannot be questioned by the court for insufficiency of material. Nonetheless, if the detaining authority does not consider relevant circumstances or considers wholly unnecessary, immaterial and irrelevant circumstances, then such subjective satisfaction would be vitiated,
- In quashing the order of detention, the Court does not sit in judgment over the correctness of the subjective satisfaction. The anxiety of the Court should be to ascertain as to whether the decision-making process for reaching the subjective satisfaction is based on objective facts or influenced by any caprice, malice or irrelevant considerations or non-application of mind,
- While making a detention order, the authority should arrive at a proper satisfaction which should be reflected clearly, and in categorical terms, in the order of detention,
- The satisfaction cannot be inferred by mere statement in the order that it was necessary to prevent the detenu from acting in a manner prejudicial to the maintenance of public order. Rather the detaining authority will have to justify the detention order from the material that existed before him and the process of considering the said material should be reflected in the order of detention while expressing its satisfaction,
- 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,
- Justification for such an order should exist in the ground(s) furnished to the detenu to reinforce the order of detention. It cannot be explained by reason(s)/grounds(s) not furnished to the detenu. The decision of the authority must be the natural culmination of the application of mind to the relevant and material facts available on the record, and
- To arrive at a proper satisfaction warranting an order of preventive detention, the detaining authority must, first examine the material adduced against the prospective detenu to satisfy itself whether his conduct or antecedent(s) reflect that he has been acting in a manner prejudicial to the maintenance of public order and, second, if the aforesaid satisfaction is arrived at, it must further consider whether it is likely that the said person would act in a manner prejudicial to the public order in near future unless he is prevented from doing so by passing an order of detention . For passing a detention order based on subjective satisfaction, the answer of the aforesaid aspects and points must be against the prospective detenu. The absence of application of mind to the pertinent and proximate material and vital matters would show lack of statutory satisfaction on the part of the detaining authority.
It certainly cannot be glossed over that the Bench propounds in para 61 that, An Advisory Board whilst dispensing its function of ascertaining the existence of a sufficient cause for detention, cannot keep itself unconcerned or oblivious to the developments that have taken place by a plethora of decisions of this Court delineating the criterion required to be fulfilled for passing an order of detention. The independent scrutiny as envisaged by Article 22 includes ascertaining whether the detention order would withstand the scrutiny a court of law.
Most significantly and so also most remarkably, the Bench then hastens to add in para 62 holding that:
We fail to understand what other purpose the Advisory Board encompassing High Court judges or their equivalent as members would serve, if the extent of their scrutiny of the order of detention is confined just to the subjective satisfaction of the detaining authority. The entire purpose behind creation of an Advisory Board is to ensure that no person is mechanically or illegally sent to preventive detention. In such circumstances, the Advisory Boards are expected to play a proactive role. The Advisory Board is a constitutional safeguard and a statutory authority. It functions as a safety valve between the detaining authority and the State on one hand and the rights of the detenu on the other. The Advisory Board should not just mechanically proceed to approve detention orders but is required to keep in mind the mandate contained in Article 22(4) of the Constitution of India.
Needless to say, the Bench then states in para 63 that:
Thus, an Advisory Board set up under a preventive detention legislation is required to undertake a proper and thorough scrutiny of an order of detention placed before it, by appreciating all aspects and angles before expressing any definite opinion in its report.
While concluding, the Bench holds in para 64 that:
In the result, this appeal succeeds and is hereby allowed. The impugned judgment and order passed by the High Court is set aside. Consequently, the order of detention is also quashed and set aside. The appellant detenu be set at liberty forthwith if not required in any other case.
Further, the Bench directs in para 65 that:
The connected Criminal Appeal No. ............. of 2024 @ SLP (Cri) No. 3391 of 2024 of the co-detenu is also allowed for the very same reasons and is disposed of in the aforesaid terms. The order of detention passed against the co-detenu also stands quashed and set aside. He be set at liberty forthwith if not required in any other case.
Furthermore, the Bench then directs in para 66 that:
The Registry shall forward one copy each of this judgment to the Chief Secretary and the Principal Home Secretary of the State of Telangana at the earliest.
In essence, we thus see that the Apex Court has made it crystal clear that improper preventive detention orders must be nipped in the bud. It is definitely the bounden duty of the detaining authority to abide fully, firmly and finally with the broad parameters as discussed in para 43 on preventive detention by the Apex Court. No doubt, if the detaining authority fails or errs to comply with accordingly then the Apex Court would be left with no option but be compelled to interfere as we see in this leading case!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh.
