Kerala HC: Preventive detention is ‘Jurisdiction of suspicion’

Soni Satti

The Kerala High Court recently issued a comprehensive judgment outlining safeguards against arbitrary and unjustified invasions of personal liberty in preventive detention cases.

The verdict, written by a divisional Bench comprising Justices AK Jayasankaran Nambiar and Gopinath P states,

‘‘If the detaining authority wants to preventively detain a smuggler, it can certainly do so, but only in accordance with the provisions of the constitution and the law, and if there is a breach of any such provision, the rule of law requires that the detenu must be set at liberty, however wicked or mischievous he may be,”

When faced with three habeas corpus petitions opposing detentions under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, the Court interpreted the constitution’s protections against preventive detention (COFEPOSA).

The bench remarks that the procedural provisions prescribed by the Constitution must be read by the High Court in matters relating to preventive detention.

The Bench emphasises at the start of its judgment that Article 22 of the Constitution grants the power of preventive detention to the government.

It is pointed out, however, that Clauses 4 to 7 of the Article offer constitutional protections against unconstitutional and unjustified invasions of personal liberty.

As a result, the Court reads from Clause 4 to emphasise that under preventive detention law, an individual cannot be detained for more than 3 months unless an Advisory Board considers the probable reason for detention beyond that period.

Another scenario identified by the Court is that the law in question specifically allows for extended detention without the Advisory Board’s approval.

The Court emphasises the duty imposed by Article 22(5) on a detaining authority to convey the grounds of detention to the detainee so that he can render representation against the order.

COFEPOSA requires that the grounds be communicated within five days or fifteen days in ‘exceptional’ situations.

Citing the Supreme Court’s dictum in Amratlal Prajivandas, the Court states that the gravity and essence of the detenu’s act can only be known after the detaining authority imposes his mind.

The Court goes on to state that the evidence given demonstrates this application of mind.

Acknowledging that a detaining authority must record satisfaction with reasons available to detain an individual, the Court emphasises the importance of the reasons that must be provided in support of the ‘satisfaction’ to legitimise the detention order.

The Court states that an unexplained interval at either point voids the detention order and entitles a detainee to immediate release.

Delays at any point, or when the detention order is passed, carried out, or even when the detainee’s objections to the order are raised and considered, void the detention order.

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