Preventive detention must meet strict threshold: SC highlights right to personal liberty

The Supreme Court on Wednesday underscored that the fundamental right to personal liberty cannot be curtailed through arbitrary or routine use of preventive detention laws, stressing that a mere breach of law and order does not automatically equate to a public order threat warranting the invocation of this exceptional measure.

A bench of justices Bhushan R Gavai and KV Viswanathan pointed out that preventive detention, being an extraordinary power, must be invoked sparingly and only in exceptional circumstances where there is a clear and immediate threat to public order.

“Every instance of breach of peace cannot result in an order of preventive detention. The distinction between whether a case would amount to a threat to public order or could be dealt with by the ordinary machinery of maintaining law and order would have to be dealt with on a case-by-case basis,” held the bench, underscoring the distinction between the breach of law and order and public order.

The ruling reinforces the constitutional principles governing preventive detention laws, as it flagged their limited and exceptional scope. While it warns state authorities against reckless use of such powers, the ruling also highlights the judiciary’s role in safeguarding personal liberty.

In the present case, the court quashed the detention of a man in Maharashtra, who had been detained under preventive detention laws in March 2024 for allegedly engaging in activities as a bootlegger in Parbhani district.

The bench highlighted the constitutional safeguards, noting that “vague” allegations regarding the adverse effect on the maintenance of public order or “stereotypes” statements of witnesses would not meet the threshold for invoking the law that directly impinges on the fundamental rights of individuals.

Drawing from precedent, the bench relied heavily on the Supreme Court’s September 2023 judgment in the Ameena Begum case, which had outlined the parameters of preventive detention. The court in that case had declared that the “drastic provisions” of preventive detention laws must not be used as a tool for ordinary enforcement of law and order.

In the present case, the bench pointed out that the accusations against Arjun Ratan Gaikwad, pertaining to selling illicit liquor, did not meet the requisite standard for preventive detention. “In all the six cases cited by the Maharashtra government, the excise department did not find it necessary to arrest the detenue even once. The allegations of harassment or threats are vague, stereotyped and not corroborated by concrete evidence,” the court said. Senior advocate Nachiketa Joshi appeared for Gaikwad.

Citing examples to underline the distinction between law and public order, the court remarked: “For instance, someone committing a brutal crime within the confines of their home does not amount to a public order issue. However, an individual who creates terror in a large public gathering, even without explicit violence, might constitute a threat to public order.”

The bench drew parallels with the Ameena Begum judgment, which had come down hard on the “pernicious” trend of preventive detention laws being invoked as a routine measure. The Supreme Court in that case had cautioned against conflating public order with law and order, highlighting the need for exceptional circumstances to justify detention.

“Preventive detention laws — an exceptional measure reserved for emergent situations — ought not to be invoked as a tool for enforcement of law and order,” the court had observed in the 2023 judgment. It had emphasised the importance of the “golden triangle” of constitutional safeguards under Articles 14, 19 and 21, stating that the deprivation of personal liberty must meet the strictest scrutiny. The Ameena Begum judgment also called out the mechanical extension of detention orders for 12 months without proper application of mind.

Quashing hat the order of the detaining authority in March as well as the Bombay high court judgment in August that affirmed this decision, the bench directed the state government to immediately release Gaikwad.