Updated on: Saturday, November 27, 2021, 10:41 PM IST

FPJ Legal: Power to detain is dangerous, must be confined to narrow limits, observes Bombay HC

Bombay HC | Photo: Representative Image

Bombay HC | Photo: Representative Image


The Nagpur bench of the HC recently said that the powers for preventive detention are most dangerous as it deals with the liberty of a human being. It said thus, the authorities enforcing these laws will have to bear in their mind that the right to life and liberty is the most sacrosanct fundamental right and thus, they have to while passing any preventive detention order, implement even the technicalities of a procedure. It accordingly, quashed a detention order passed against a man after noting that the authorities hadn't complied with certain technicalities.

A bench of Justices Mahesh Sonak and Pushpa Ganediwala last week quashed the preventive detention order passed by the Police Commissioner, Amravati against one Sayed Noor Sayed Nasir, 33.

Noor had challenged the detention orders on the ground that the authorities didn't comply with the provisions mandating preventive detention as it didn't record a "subjective satisfaction" to reason the detention. He further contended that as provided under Article 22 of the Constitution of India, the authorities didn't communicate the detention order to him at the earliest.

Notably, the authorities contended that they had served the detention order to Noor while he was in jail. It even claimed that it had recorded the satisfaction to detain him on the ground that he was about to get bail.

Having considered the record, the judges said, "Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. However, since Article 22 (3) (b) of the Constitution permits preventive detention, it cannot be held illegal."

"But the power of preventive detention must be confined to very narrow limits, otherwise, the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long, arduous, and historical struggles, will become nugatory," the judges added.

To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical is mandatory and vital, the court held.

"Personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that the detaining authority must show that the impugned detention meticulously accords with the procedure established by law. The history of liberty is the history of procedural safeguards," the bench said, adding, "These procedural safeguards are required to be zealously watched and enforced by the court and their rigour cannot be allowed to be diluted based on the nature of the alleged activities of the détente."

The court further said that the law mandates the authorities to communicate the detention order to the person, who is to be detained.

"If the détente is not communicated the ground for his detention or a vital portion of such ground, then surely his right to represent effectively against such a ground is bound to be impaired. This is good ground for quashing the impugned detention order," the bench said while setting aside the detention order.

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Published on: Saturday, November 27, 2021, 10:41 PM IST