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Sunday, Mar 09, 2008
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New ruling on preventive detention

J. Venkatesan

Individual liberty has to be subordinated to people’s good: Supreme Court

“Strike a balance between personal liberty and country’s security”
“Security of state demands effective safeguards”

New Delhi: An order passed by a detaining authority under the preventive detention law cannot be set aside by the High Court at the pre-arrest stage unless it is satisfied that there are exceptional circumstances, the Supreme Court has held.

“The court must be conscious and mindful of the fact that this is a ‘suspicious jurisdiction’ and action is taken ‘with a view to preventing’ a person from acting in any manner prejudicial to certain activities enumerated in the relevant detention law,” said a Bench consisting of Justices C.K. Thakker and Altamas Kabir.

Writing the judgment, Justice Thakker said: “Interference by a court of law at that stage must be an exception rather than a rule and such an exercise can be undertaken by a writ court with extreme care, caution and circumspection. A detenu cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of it. ”

Subjective satisfaction

The Bench said: “The court must be conscious and mindful that the satisfaction of the detaining authority is ‘subjective’ and the court cannot substitute its ‘objective’ opinion for the subjective satisfaction of the detaining authority.”

There could be no doubt that personal liberty was a precious right; equally important was protecting “the people against the government.”

The primary object of preventive detention “is not to punish a person for having done something but to intercept him before he does it.” It was not a penalty for past activities of an individual but was intended to pre-empt the person from indulging in activities sought be prohibited by a relevant law and to prevent to him from doing harm in future.

Underlining the need for striking a balance between personal liberty and security of the country, the Bench said: “Liberty of an individual has to be subordinated, within reasonable bounds, to the good of the people. Security of the state, maintenance of the public order and services essential to the community, prevention of smuggling and black marketing activities, etc, demand effective safeguards in the larger interests of sustenance of a peaceful democratic way of life.”

The Bench said: No doubt, it is the duty of the court to safeguard against any encroachment on the life and liberty of individuals; at the same time the authorities who have the responsibility to discharge the functions vested in them under the law of the country should not be impeded or interfered with without justification.”

In the instant case, the Maharashtra government passed an order to detain Bhaurao Punjabrao Gawande to prevent him from indulging in smuggling and black marketing of essential commodities. The Bombay High Court quashed the detention order. Allowing the State’s appeal against this judgment, the Bench said it would be open to the authorities to execute the detention order.

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