The Supreme Court has ruled that preventive detention, under which a person is detained in prison without a formal trial, cannot be used in a “capricious manner” as it violates the fundamental right to life and liberty guaranteed under Article 21 of the Constitution.

The inability of the police machinery to tackle law and order should not be an excuse to invoke the step of preventive detention, the court added.

Under the preventive detention law, the police commissioner or director-general of police can directly send a purportedly habitual criminal to jail without producing the accused in court.

The bench of Chief Justice D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra passed the direction while quashing the preventive detention orders by Telangana police against appellants Nenavath Bujji and another person. The duo had been sent to jail for allegedly repeated instances of robbery and snatching, among others.

The bench, while setting aside a Telangana High Court order refusing to quash the detention orders, issued a slew of guidelines for the authorities.

“Preventive detention being a draconian measure, any order of detention as a result of a capricious or routine exercise of powers must be nipped in the bud,” Justice Pardiwala, who authored the judgment, said.

“It must be struck down at the first available threshold and as such, it should be the Advisory Board that must take into consideration all aspects not just the subjective satisfaction of the detaining authorities but whether such satisfaction justifies detention of the detenu (detainee).”

The bench issued the following guidelines:

⦿ The detaining authority should take into consideration only relevant and vital material to arrive at the requisite subjective satisfaction.

⦿ It is an unwritten law, constitutional and administrative, that wherever a decision-making function is entrusted to the subjective satisfaction of the statutory functionary, there is an implicit duty to apply his mind to the pertinent and proximate matters and eschew those that are irrelevant and remote.

⦿ The detention order requires subjective satisfaction of the detaining authority which, ordinarily, cannot be questioned by the court for insufficiency of material. Nonetheless, if the detaining authority does not consider relevant circumstances or considers wholly unnecessary, immaterial and irrelevant circumstances, then such subjective satisfaction would be vitiated.

⦿ The anxiety of the court should be to ascertain whether the decision-making process for reaching subjective satisfaction is based on objective facts or influenced by any caprice, malice or irrelevant considerations or non-application of mind.

⦿ While making a detention order, the authority should arrive at a proper satisfaction which should be reflected clearly, and in categorical terms, in the order of detention.

⦿ The satisfaction cannot be inferred by a mere statement in the order that “it was necessary to prevent the detenu from acting in a manner prejudicial to the maintenance of public order”. Rather, the detaining authority will have to justify the detention order from the material that existed before him and the process of considering the said material should be reflected in the order of detention while expressing its satisfaction.

⦿ Inability on the part of the police machinery to tackle the law-and-order situation should not be an excuse to invoke the jurisdiction of preventive detention.

⦿ Justification for such an order should exist in the ground(s) furnished to the detenu to reinforce the order of detention. It cannot be explained by reason(s)/ ground(s) not furnished to the detenu.

⦿ The detaining authority must first examine the material adduced against the prospective detenu to satisfy itself whether his conduct or antecedent(s) reflect that he has been acting in a manner prejudicial to the maintenance of public order. Second, if the aforesaid satisfaction is arrived at, it must further consider whether it is likely that the said person would act in a manner prejudicial to the public order in near future unless he is prevented from doing so by passing an order of detention.