Preventive detention can’t be invoked over law & order fears, says Supreme Court

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NEW DELHI: In an important decision, the Supreme Court on Monday ruled that the provision for preventive detention cannot be invoked over apprehension of law and order problems and said a person can be detained only in cases where public order is directly affected.
Differentiating between the two, the apex court said that "law and order" comprehends disorders of less gravity than those affecting "public order", which affects the larger public, leading to harm, danger or alarm or feeling of insecurity.
"There can be no doubt that for ‘public order’ to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects ‘law and order’ but before it can be said to affect ‘public order’, it must affect the community or the public at large," a bench of Justices R F Nariman and Hrishikesh Roy said.

The court quashed an order passed by the Telangana government to detain an alleged habitual fraudster on the ground that he was likely to cheat more members of the public if allowed to move freely. Justifying the action, the government contended that multiple FIRs were filed against the person and he was detained as he got anticipatory bail in all criminal cases. It pleaded the bench to give a liberal interpretation of "public order" to allow preventive detention but the court turned down the plea,
"Further, preventive detention must fall within the four corners of Article 21 (protection of life and liberty) read with Article 22 and the statute in question. To therefore argue that a liberal meaning must be given to the expression ‘public order’ in the context of a preventive detention statute is wholly inapposite and incorrect."
"On the contrary, considering that preventive detention is a necessary evil only to prevent public disorder, the court must ensure that the facts brought before it directly and inevitably lead to harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large," the bench said.
The court passed the order on a plea filed by the wife of the accused challenging his detention order. Allowing her plea, the bench said, "While it cannot seriously be disputed that the detenu may be a white-collar offender... yet a preventive detention order can only be passed if his activities adversely affect or are likely to adversely affect the maintenance of public order."
Advocate Gaurav Agarwal, appearing for the petitioner, contended that the order was perverse as it was passed only because anticipatory bail was granted to the accused. The correct course of action would have been for the state to move to cancel the bail, he said.
Senior advocate Ranjit Kumar, appearing for the state, said the detenu had created fear among the gullible public, and since he was likely to commit similar offences in future, it was important to preventively detain him, as the ordinary law had no deterrent effect on him.
The bench, however, rejected the plea of the state and said, "If a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation."
The court said the state can always appeal against the bail order granted and apply for cancellation. It ruled that the reasons for detention cannot be successful obtaining of anticipatory bail orders.

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