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Supreme Court Says Misuse Of Preventive Detention Laws Must Stop

By Sunil Garodia
First publised on 2023-09-07 01:02:41

About the Author

Sunil Garodia Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Author of Cyber Scams in India, Digital Arrest, The Money Trap and The Human Hack

The Supreme Court made an important distinction between 'law & order' and 'public order' in connection with the preventive detention habit of police forces all over India. The court said that an offence by a person against another person or persons but not against the public at large falls under a law and order offence while an offence committed to adversely affect the public at large is disturbance of public order. Having made the distinction, it categorically said that the government cannot use preventive detention as a "tool for enforcement of law & order".

In the instant case, the Hyderabad police commissioner had passed an order a person under preventive detention. It was said that he was a habitual offender and was put under preventive detention as he was likely to commit the offence again. The court was livid and lashed out at the misuse of preventive detention law in Telangana and asked authorities in the state not to invoke it at the drop of a hat. The court said that "we are constrained to observe that 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." It further said that "merely because the detenue was charged for multiple offences, it could not be said that he was in the habit of committing such offences. Further, habituality of committing offences cannot, in isolation, be taken as a basis of any detention order, rather it has to be tested on the metrics of 'public order'. Therefore, cases where such habituality has created any 'public disorder' could qualify as ground to order detention."

The SC order will perhaps put the brakes on rampant preventive detention measures in Telangana and rest of India. While it is a valid tool to prevent public disorder, it is seldom tested on that metric and is misused to put habitual offenders in jail for a variety of reasons. With the Supreme Court clearly specifying that preventive detention can only be used in cases of potential disturbance of public order, such misuse is likely to stop. 

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