Preventive Detention

Judicial Dictionary

Indeed, while dealing with the Defence of India Rules which also empowered the Government of India to make orders of preventive detention this Court in Sahib Singh Dugal v. Union of India, (1966) 1 SCR 313 repelled a similar contention in the following words:

“The next contention on behalf of the petitioners is that the order is mala fide. The reaosn for this contention is that it was originally intended to prosecute the petitioners under S. 3 of the Official Secrets Act and when the authorities were unable to get sufficient evidence to obtain a conviction they decided to drop the criminal proceedings and to order the detention of the petitioners. This by itself is not sufficient to lead to the inference that the action of the detaining authority was mala fide. It may very well be that the executive authorities felt that it was not possible to obtain a conviction for a particular offence under the Official Secrets Act; at the same time they might reasonably come to the conclusion that the activities of the petitioners which had been watched for over two years before the order of detention was passed were of such as nature as to justify the order of detention. We cannot infer merely from the fact that the authorities decided to drop the case under the Official Secrets Act and thereafter to order the detention of the petitioners under the Rules that the order of detention was mala fide. As we have already said, it may not be possible to obtain a conviction for a particular offence; but the authorities may still be justified in ordering detention of a person in view of his past activities which will be of a wider range than the mere proof of a particular offence in a court of law. We are not therefore prepared to hold that the orders of detention in these cases were mala fide.”

This decision was followed by this Court in Mohd. Salim Khan v. C. C. Bose, (1972) 2 SCC 607 . A similar view was also taken by this Court in Borjahan Gorey v. State of West Bengal, (1972) 2 SCC 550 , where it was observed:

“The preventive detention provided by the Act is apparently designed to deal urgently and effectively with the more serious situation, inter alia, affecting the security of India and the maintenance of public order as contemplated by section 3 of the Act. The liability of the detenu also to be tried for commission of an offence…… not in any way as a matter of law affect or impinge upon the full operation of the Act. The reason is obvious. Judicial trial for publishing the accused for the commission of an offence…… a jurisdiction distinct from that of detention under the Act, which has in view, the object of preventing the detenu from acting in any manner prejudicial inter alia to the security of the State or maintenance of public order. The fields of these two jurisdictions are not co-extensive nor are they alternative. The jurisdiction under the Act may be invoked, when the available evidence does not come up the the standard of judicial proof but is otherwise cogent enough to give rise to suspicion in the mind of the authority concerned that there is a reasonable likelihood of repetition of past conduct which would be prejudicial inter alia to the security of the State or the maintenance of public order or even whens the witnesses may be frightened or scared of coming to a court and deposing about past acts on which the opinion of the authority concerned is based. This jurisdiction is sometimes called the jurisdiction of suspicion founded on past incidents and depending on subjective satisfaction….”

“…….The grounds of detention relate to the past acts on which the opinion as to the likelihood of the repetition of such or similar acts is based and those grounds are furnished to the detenu to inform him as to how and why the subjective satisfaction has been Arrived at so as to enable him to represent against them. The fact, therefore, that a prosecution under the Code could also have been launched is not a valid ground for saying that it precludes the authority from acting under the Act.”

No doubt, the right to personal liberty of an individual is jealously protected by our Constitution but this liberty is not absolute and is not to be understood to amount to licence to indulge in activities which wrongfully and unjustly deprive the community or the society of essential services and supplies. The right of the society as a whole is, from its very nature, of much greater importance than that of an individual. In case of conflict between the two rights, the individual’s right is subjected by our Constitution to reasonable restrictions in the larger interests of the society.

AIR 1973 SC 207 : (1973) 2 SCR 990 : (1973) 3 SCC 250 : (1974) CriLJ SC 397

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