The Hindu : National : Preventive detention is no tool of oppression: court

Online edition of India's National Newspaper
Friday, Sep 19, 2008
ePaper | Mobile/PDA Version

National

National

Preventive detention is no tool of oppression: court

J. Venkatesan

Authorities must be fully satisfied that detention is in the interest of state and for public good
Detenu must be supplied with all material to make effective representation

New Delhi: Preventive detention laws, which are an evil necessity, must not become an instrument of oppression in the hands of authorities or to avoid criminal proceedings which will entail proper investigation, the Supreme Court has held.

As personal liberty and individual freedom are curtailed by prevention detention, the detaining authorities “must apply their minds carefully and exercise great caution in passing such an order,” said a Bench consisting of Justices Altamas Kabir and Markandey Katju.

The authorities must be fully satisfied, from the material placed before them both for and against the detenu, that the detention order was required to be passed in the interest of the state and for the public good. They must keep in mind the fact that of all human rights, personal liberty and individual freedom were probably the most cherished.

Writing the judgment, Justice Kabir quoted a verse from Joy Adamson’s classic ‘Born Free’ describing the importance of personal liberty, and said “courts which are empowered to issue prerogative writs have, therefore, to be extremely cautious in examining the manner in which a detention order is passed in respect of an individual so that his right to personal liberty and individual freedom is not arbitrarily taken away from him even temporarily without following the procedure prescribed by law.”

The Bench said the detaining authority must be provided with all material available both for and against the detenu to enable him to reach a just conclusion.

The detenu must be supplied with all documents and material to enable him to make an effective representation against the detention order in compliance with Article 22 (5) of the Constitution (making available the grounds of detention), whether or not he had knowledge of the same.

“These have been recognised by this court as the minimum safeguards to ensure that preventive detention laws do not become instruments of oppression in the hands of the authorities concerned. In most cases, the decision of this court has gone in favour of the detenu when even one of the grounds of detention did not satisfy the rigours of proof of its genuineness as a foundational fact in support thereof.”

In the instant case, Sanjay Bhandari was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act on December 15, 2005 on the ground that he violated various provisions of the Exim and foreign trade policy. On a habeas corpus petition from his wife alleging that the detenu was not supplied with all documents for making a proper representation, the Delhi High Court quashed the detention.

Dismissing the appeal by the Centre against this ruling, the Supreme Court said that due to non-supply of documents the detenu was prevented from making an effective representation and therefore “we do not see any reason to interfere with the High Court judgment.”

Printer friendly page
Send this article to Friends by E-Mail

National