Supreme Court Clarifies 3-Month Limit on Preventive Detention Under Article 22(4)(a) of Constitution

preventive detention - LAW INSIDER

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Published on: 21 August 2023 at 11:20 IST

The Supreme Court of India recently dismissed an appeal challenging a preventive detention order issued under the Andhra Pradesh Prevention of Dangerous Activities of Boot-leggers Act, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, in Case Title: Pesala Nookaraju V. Govt of Andhra Pradesh.

The appellant had challenged the order and raised questions about the interpretation of Article 22(4)(a) of the Constitution, which pertains to preventive detention.

The Court disagreed with the interpretation presented in the case of Cherukuri Mani v. Chief Secretary, Government of Andhra Pradesh (2015) . In that case, it was suggested that if a State Government intends to detain a person for the maximum duration of twelve months, a preliminary detention order must be issued for three months, followed by at least three extensions.

However, the Supreme Court clarified that the 3-month time limit prescribed by Article 22(4)(a) is applicable only at the initial stage, up to the receipt of the Advisory Board’s report.

Article 22(4)(a) of the Constitution requires that if a person is detained under a preventive detention order, they must be informed of the grounds of detention and be afforded the opportunity to submit representation against the order.

The Supreme Court’s recent ruling clarifies that this provision applies during the period before the Advisory Board’s report is obtained.

The report informs the State Government’s decision to confirm the detention, extend it for a maximum of twelve months, or release the detainee without delay, as per Section 12 of the Act.

The Court emphasized that Article 22(4)(a) applies only to the initial stage of passing the detention order and is not relevant to the stage after the Advisory Board’s report is received. This clarification provides clarity on the time limit associated with preventive detention orders and ensures adherence to constitutional principles.

The case also delved into broader issues related to preventive detention. The Court questioned whether specifying the period of detention in the initial order would render the order illegal or invalid.

Referring to previous judgments, the Court highlighted that the period of detention should be determined after the Advisory Board provides its report justifying the detention. Fixing the period of detention in the initial order itself would go against the scheme of the Act.

In another aspect of the case, the Court discussed the criteria for determining whether an activity is prejudicial to public order.

The appellant had argued that the mere registration of FIRs under the Andhra Pradesh Prohibition Act, 1995 cannot establish subjective satisfaction that the appellant’s actions as a boot-legger are prejudicial to public order.

The Court emphasized that the distinction between issues of law and order and matters concerning public order is subtle. It stressed that the potential consequences of an act must be considered, especially in cases involving offenses under the Prohibition Act.

Ultimately, the Supreme Court upheld the High Court’s judgment and dismissed the appeal, providing clarity on the interpretation of Article 22(4)(a) and the considerations for preventive detention orders.

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