legality of preventive detention orders

Supreme Court: In a criminal appeal against the Judgment and order of Telangana High Court, whereby appellant’s petition seeking a writ of habeas corpus was dismissed and the detention order of the husband was upheld, the Division Bench of Surya Kant, and Dipankar Datta*, JJ. quashed the High Court’s judgment. The Court also laid down certain tests for examination of legality of the order of preventive detention.


The Commissioner of Police, Hyderabad City (‘Commissioner’) passed the detention order against the appellant’s husband (‘detenu’) under the provisions of Section 3(2) of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act 1986 (‘the Act’). The detenu was detained earlier also however, he was later released.

The appellant submitted a representation under Section 10 of the Act seeking revocation of the Detention Order. The Advisory Board opined that there was sufficient cause for the detention of the detenu, whereupon the Government issued an order dated 20-05-2023 under Section 12(1) read with Section 13 of the Act confirming the Detention Order and directed for continuation of the detention for a period of 12 months from the date of detention, i.e., 27-01-2023. Subsequently, a petition was preferred before the High Court seeking writ of habeas corpus. The High Court dismissed the petition. Hence, the present appeal.

Analysis of Preventive Detention and Judicial Review

The Court considered it necessary to revisit the purpose for which preventive detention in a particular case could be ordered, the requisites of a valid detention order and the scope of judicial reviewability of such order.

The Court perused Article 22 of the Constitution of India, which guarantees protection to a person against arbitrary arrest, effected otherwise than under a warrant issued by a Court of law, are regarded as vital and fundamental for safeguarding personal liberty. The Court referred to Haradhan Saha v. State of W.B., (1975) 3 SCC 198, wherein it was said that the purpose of preventive detention is to prevent the greater evil of elements imperiling the security and safety of a State, and the welfare of the Nation. Preventive detention, though a draconian and dreaded measure, is permitted by the Constitution itself but subject to the safeguards that are part of the relevant article and those carved out by the Constitutional Courts through judicial decisions of high authority which have stood the test of time.

Further, the Court referred to Khudiram Das v. State of W.B., (1975) 2 SCC 81, wherein it was observed that “the power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof”.

The Court said that so long Article 22(3) of the Constitution of India itself authorises detention as a preventive measure, there can be no two opinions that none can take exception to such a measure being adopted and it is only a limited judicial review by the Constitutional Courts that can be urged by an aggrieved detenu wherefor too, in examining challenges to orders of preventive detention. The Court also observed that the observation in Rekha v. State of T.N., (2011) 5 SCC 244, that “it is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in substance a detention order of one year (or any other period) is a punishment of one year’s imprisonment. What difference is it to the detenu whether his imprisonment is called preventive or punitive?” does reflect an important aspect of loss of liberty without trial by taking recourse to preventive detention laws, however, the decision in Haradhan Saha (supra) still holds the field.

The Bench laid down certain tests which the Courts must examine when called upon to test the legality of orders of preventive detention:

  1. the order is based on the requisite satisfaction, albeit subjective, of the detaining authority, for, the absence of such satisfaction as to the existence of a matter of fact or law, upon which validity of the exercise of the power is predicated, would be the sine qua non for the exercise of the power not being satisfied;

  2. in reaching such requisite satisfaction, the detaining authority has applied its mind to all relevant circumstances and the same is not based on material extraneous to the scope and purpose of the statute;

  3. power has been exercised for achieving the purpose for which it has been conferred, or exercised for an improper purpose, not authorised by the statute, and is therefore ultra vires;

  4. the detaining authority has acted independently or under the dictation of another body;

  5. the detaining authority, by reason of self-created rules of policy or in any other manner not authorized by the governing statute, has disabled itself from applying its mind to the facts of each individual case;

  6. the satisfaction of the detaining authority rests on materials which are of rationally probative value, and the detaining authority has given due regard to the matters as per the statutory mandate;

  7. the satisfaction has been arrived at bearing in mind existence of a live and proximate link between the past conduct of a person and the imperative need to detain him or is based on material which is stale;

  8. the ground(s) for reaching the requisite satisfaction is/are such which an individual, with some degree of rationality and prudence, would consider as connected with the fact and relevant to the subject-matter of the inquiry in respect whereof the satisfaction is to be reached;

  9. the grounds on which the order of preventive detention rests are not vague but are precise, pertinent and relevant which, with sufficient clarity, inform the detenu the satisfaction for the detention, giving him the opportunity to make a suitable representation; and

  10. the timelines, as provided under the law, have been strictly adhered to.

Analysis of Issues

The Court perused Section 3 of the Act, under which the power to detain the detenu was exercised and noted that it provides for ‘satisfaction’ of the Government and hence said that it clearly imports subjective satisfaction on the part of the detaining authority before an order of detention can be made. The Court applied the requisite test of ‘subjective satisfaction’ on the Commissioner’s detention order passed under Section 3(2) of the Act. The Court noted that the detention order was based on five distinct offences, namely, crime committed in relation to a minor girl, cheating, obstructing a public official from discharging his duty and dacoity.

Whether the alleged acts of commission for which the Detenu was kept under detention were prejudicial to ‘public order’?

Regarding the distinction between disturbances relatable to ‘law and order’ and disturbances caused to ‘public order’, the Court said that it is trite that breach of law in all cases does not lead to public disorder. The Court referred to Ram Manohar Lohia v. State of Bihar, 1965 SCC OnLine SC 9, wherein it was observed that “public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder” and “Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.”

The Court examined what constitutes ‘public order’ within the provisions of the Act. Section 2(a) of the Act defines public order as encompassing situations that cause ‘harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave wide-spread danger to life or public health’. The Court found that the offences in the detention order, which led to the satisfaction of the of the authority, were the separate and stray acts affecting private individuals and the repetition of similar such acts would not tend to affect the even flow of public life. The Court also said that the impugned order of detention in the writ petition before the High Court failed to differentiate between offences which create a ‘law and order’ situation, and which prejudicially affect or tend to prejudicially affect ‘public order’. Therefore, the Court observed that the preventive detention laws – an exceptional measure reserved for tackling emergent situations – ought not to have been invoked in this case as a tool for enforcement of ‘law and order’. Thus, the Court held that the order of detention was indefensible.


The Court held that the impugned detention order and the decision of the High Court cannot be upheld. Therefore, the Court quashed the impugned judgment and directed for the release of the detenu.

[Ameena Begum v. State of Telangana, 2023 SCC OnLine SC 1106, Decided on 04-09-2023]

*Judgment Authored by: Justice Dipankar Datta

Know Thy Judge| Justice Dipankar Datta

*Deeksha Dabas, Editorial Assistant has reported this brief.

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