The Supreme Court held that preventive detention is not the appropriate remedy for a detaining authority if an accused violates their bail conditions.
The appellant, who was the wife of the detenu, had filed an appeal against a Kerala High Court judgement which had upheld the detention of her husband under the Kerala Anti-Social Activities (Prevention) Act, 2007. The husband was described as a “notorious goonda” who had several criminal cases pending against him. The detaining authorities said that he had violated his bail conditions and that his release would threaten “public order” .
The Supreme Court reiterated that preventive detention should be exercised in rare instances and was an exception to the protection of life and liberty under Article 21. The Bench pointed out that no application was made to cancel the bail granted to the detenu. They noted that the detaining authority did not clearly make a case for needing preventive detention.
6 June 2025
Citations: 2025 INSC 809 | 2025 SCO.LR 6(1)[5]
Bench: Justices Sanjay Karol and Manmohan
Read the Judgement here.
Case comment
It was stated therein that the detenu is a ‘notorious goonda’ of the district and is a threat to the society at large. Consequently, the detenu was taken into custody. Aggrieved by the order of detention dated 20th June, 2024, the appellant filed a writ petition before the High Court of Kerala assailing the order of detention and praying for a writ of Habeas Corpus
It is well settled that the provision for preventive detention is an extraordinary power in the hands of the State that must be used sparingly. It curtails the liberty of an individual in anticipation of the commission of further offence(s), and therefore, must not be used in the ordinary course of nature. The power of preventive detention finds recognition in the Constitution itself, under Article 22(3)(b). However, this Court has emphasized in Rekha v. State of Tamil Nadu3 that the power of preventive detention is an exception to Article 21 and, therefore, must be applied as such, as an exception to the main rule and only in rare cases.
Held, In consonance with the above expositions of law, in our view, the attending facts and circumstances do not fall under the category of a public order situation. The observations made in the detention order do not ascribe any reason as to how the actions of the detenu are against the public order of the State. As discussed above, given the extraordinary nature of the power of preventive detention, no reasons are assigned by the detaining authority, as to why and how the actions of the detenu warrant the exercise of such an exceptional power.
Held, the order of detention cannot be sustained. The circumstances pointed out in the order by the detaining authority may be ground enough for the State to approach the competent Courts for cancellation of bail, but it cannot be said that the same warranted his preventive detention
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Key words/phrases: Preventive detention—exception to Article 21—threat to public order—Kerala Anti-Social Activities (Prevention) Act, 2007—no preventive detention when alternate remedy of cancellation of bail is available