[Detention Law] Courts should lean in favour of upholding personal liberty, ensure liberty is not taken away capriciously: Gujarat HC

While hearing an appeal against the dismissal of a plea challenging a preventive detention order, the Gujarat High Court recently made some crucial observations on personal liberty vis-à-vis preventive detention law. (Haidarsha Pir v. State of Gujarat).The Bench of Chief Justice Vikram Nath and JB Pardiwala observed that provisions of detention laws have to be applied with watchful care and circumspection. ."It is the duty of the court to see that the efficacy of the limited yet crucial safeguards provided in the law of preventive detention is not lost in mechanical routine, dull casualness and chill indifference on the part of the authorities entrusted with their application. It has been held by High Courts and the Supreme Court that where the liberty of a subject is involved and he has been detained without trial, under a law made pursuant to Art. 22 which provides certain safeguards, it is the duty of the Court as the Custodian, sentinel and ever vigilant guard of the freedom of an individual to scrutinise with due care and anxiety that this precious right which he has under the Constitution is not in any way taken away capriciously, arbitrarily or without any legal justification. The power to detain without trial is an extraordinary power constituting encroachment on personal liberty and it is the solemn duty of the Court to ensure that this power is exercised strictly in accordance with the requirement of the Constitution and the law.".The Court added,."The Courts should always lean in favour of upholding personal liberty, for it is one of the most cherished values of mankind. Without it life would not be worth living. It is one of the pillars of free democratic society."Gujarat High Court.The litigation arose out of a detention order passed under the Gujarat Prevention of Anti-Social Activities Act, 1985 by a District Magistrate against one Haidarsha Pir, declaring him a ‘dangerous person’ and a ‘threat to public order’. .The District Magistrate issued the order pursuant to two complaints and a statement by a person whose identity was kept hidden in ‘public interest’ under Section 9(2) of the Act. The statements were recorded in-camera, Court noted. The allegations against Pir were under the Mines and Minerals Development and Regulation Act and the Indian Penal Code..Finding the order to be unsustainable, the Court remarked that preventive detention could not be a substitute for proceedings under ordinary law and a reason to keep a person in perpetual custody.."The rhetorical incantation of the words 'dangerous person' or 'prejudicial to maintenance of public order' cannot be sufficient justification to invoke the draconian powers of preventive detention.”Gujarat High Court.Stating that a declaration to such an effect based on two complaints was a gross abuse of Constitutional law, the Court went on to reason:."No doubt, the offences alleged to have been committed by the appellant are such as to attract the punishment under the Mines & Minerals (Development & Regulation) Act, 1957 as well as the Indian Penal Code, but that, in our view, has to be done under the said laws and taking recourse to the preventive detention laws would not be warranted. Preventive detention involves detaining of a person without trial in order to prevent him/her from committing certain types of offences. But, such detention cannot be made a substitute for the ordinary law and absolve the Investigating Authorities of their normal functions of investigating the crimes which the detenue might have committed.".When the matter was first litigated before the High Court, the Single Bench dismissed the petition on the ground that the Advisory Board was yet to issue a direction on his representation challenging the validity of the detention. Since the challenge to detention under the Act served as an alternative efficacious remedy, the Court could not pass order or issue directions that could potentially conflict with the Board’s, it was opined..During hearings before the Division Bench, Pir’s counsel had submitted that the Gujarat High Court previously listed preventive detention matters before Division Benches and accorded them the same treatment as habeas corpus pleas. After an amendment to the Gujarat High Court rules in 1995, such matters came to be listed before a Single Bench as matters under civil jurisdiction..The Bench mooted the idea that detention matters should also be treated as habeas corpus writs and decided by a Division Bench. Accordingly, the Bench referred this question to the Court Registry for further consideration.."We are of the view that the amendment, referred to above, needs to be re-looked as we would suggest that the preventive detention matters should be treated as the Habeas Corpus Petitions and a Habeas Corpus Petition, questioning the legality and validity of an order of preventive detention should be heard by a Division Bench of this Court and not by a Single Judge."Gujarat High Court.As far as the instant case was concerned, the Court quoted at the outset the following paragraph from V Shantha v. State of Telangana & Ors.,."If the power is misused, or abused for collateral purposes, and is based on grounds beyond the statute, takes into consideration extraneous or irrelevant materials, it will stand vitiated as being in colourable exercise of power.".Two issues were framed for consideration:Whether the existence of an alternative remedy barred proceedings before the High CourtThe legality of the detention order in question..On the first question, the Court found that an “alternative remedy” could not bar a resort to the High Court because a person detained under preventive detention laws did not have resort to a Magistrate or legal representation. .Apart from this, since preventive detention constituted an infraction upon liberty Article 21 was impacted and thus, the Constitutional Courts could not adopt the ‘alternative efficacious remedy’ doctrine ordinarily invoked to dismiss a petition filed in the Court..“The concept of alternative remedy and the power of the High Court to entertain a writ application under Article 226 of the Constitution of India is foreign to cases wherein the challenge is to an order of preventive detention. When a citizen of this country complains of infringement of his right of personal freedom and liberty as embodied under Articles 21 and 22 of the Constitution respectively, then the High Court should not decline to entertain his challenge to such preventive detention on the ground that the detenue has an alternative remedy of filing a representation before the authority concerned.”Gujarat High Court.The Gujarat High Court relied upon a decision of the Supreme Court in Piyush Kantilal Mehta vs. Commissioner of Police, Ahmedabad City & Ors. which relied upon an earlier judgment of the Jammu and Kashmir High Court..In Piyush, the Court quoted Justice KK Mathew’s observations in Prabhu Dayal Deorah v.The District Magistrate, Kamrup where he said:."...The detenu has a right under Article 22(5) of the Constitution to be afforded the earliest opportunity of making a representation against the order of detention. That constitutional right includes within its compass the right to be furnished with adequate particulars of the grounds of the detention order. And, if their constitutional right is violated, they have every right to come to this Court under Article 32 complaining that their detention is bad as violating their fundamental right. As to what the Advisory Board might do in the exercise of its jurisdiction is not the concern of this Court.".In the Jammu and Kashmir High Court ruling in Mian Ab. Qayoom vs. State of J &K & Ors it was said:."...The moment a person is deprived of his personal liberty guaranteed by Article 21 of the Constitution of India, which inheres in him, he gets right to challenge such detention on the grounds available in law. The detenu can challenge his detention calling it to be illegal being violative of Constitutional guarantee as contained in Articles 21 and 22 of the Constitution of India. The person who is detained without being brought before the Magistrate immediately after his arrest, by no stretch of imagination can be said to wait until such time the Advisory. Board furnishes its opinion to the State Government...".Since the question was so well-settled, the Division Bench wondered why this proposition of law was not submitted to the Single Judge during arguments..As to the second question, the Court agreed that it would ordinarily have remitted the matter back to the Single Judge for consideration. However, considering the nature of the order, the Bench opined that it would decide the validity of the order without reference. Therefore, it found the order ex facie illegal and extraneous to the Act..On these terms, the appeal was allowed..Advocate Mita S Panchal represented the appellant, while Assistant Government Pleader Dharmesh Devnani appeared for the State..Read the Judgment: