'A Jurisdiction Of Suspicion': Kerala High Court Lays Down Guidelines For Detention Under Preventive Detention Laws

In a detailed judgment, the Kerala High Court recently prescribed safeguards against arbitrary and unjustified invasion of personal liberty in cases of preventive detention. The judgment, pronounced by a Division Bench of Justices AK Jayasankaran Nambiar and Gopinath P, stresses, "…if the detaining authority wants to preventively detain a smuggler, it can certainly do so, but only in accordance with the provisions of the constitution and the law, and if there is a breach of any such provision, the rule of law requires that the detenu must be set at liberty, however wicked or mischievous he may be." The Bench interpreted the safeguards against preventive detention provided in the constitution when confronted with three habeas corpus petitions challenging detentions under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA). Explaining how the procedural safeguards against preventive detention prescribed by the Constitution were to be interpreted by the High Court in matters relating to preventive detention, the bench remarks, "It is therefore that when an application for a writ of Habeas corpus is filed before us, we feel duty bound to satisfy ourselves that all the safeguards provided by the law have been scrupulously observed, and the citizen is not deprived of his personal liberty otherwise than in accordance with law. While considering such applications, our courts do not follow strict rules of pleading, and often relax the rigour of the evidentiary rules governing burden of proof. The detaining authority, on the other hand, is called upon to place all materials before the court to show that the detention is legal and in conformity with the mandatory provisions of the law authorizing such detention." Safeguarding liberty against preventive detention law's jurisdiction of suspicion – How the Court interprets Clauses 4 to 7 of Article 22 At the outset of its judgment, the Bench emphasises that the Constitution has conceded the power of preventive detention under Article 22 of the Constitution. However, Clauses 4 to 7 of the Article provide procedural safeguards against arbitrary and unjustified invasion of personal liberty, it is pointed out. The Court therefore, reads from Clause 4 to highlight that preventive detention law cannot authorise the detention of a person for a period longer than 3 months unless an Advisory Board constituted finds sufficient cause for detention over this period. Another situation drawn by the Court is where the statute concerned expressly provides for a prolonged detention without obtaining the opinion of the Advisory Board. The 'barest minimum' safeguard- communicating the grounds of detention to the detenu Describing the communication of the grounds of detention to the detenu as 'the barest minimum safeguard before detention', the Court underscores the duty cast upon a detaining authority by Article 22(5) to communicate the grounds of detention to the detenu so as to allow him to make representation against the order. The COFEPOSA mandates communicating the grounds within five days, or fifteen days in 'exceptional' circumstances. Laying emphasis on the content of the communication, the judgment urges that the purpose of the communication is to allow the detenu to make representation against the detaining order. The judgment reckons the following as necessary for a communication for preventive detention – The grounds of detention must be furnished in their entiretyAll relevant material relied upon such as documents and statements must be communicated since they form part of the 'grounds of detention'The detaining authority's train of thought, starting with the consideration of the offence(s), the opinion that the detenu ought to be detained, the reasons for the opinion The Court explains that the right to be supplied copies of relevant documents flows as a corollary to the right to make a representation against the detention. "If the grounds of detention, as above, were not furnished to the detenu within the time permitted under the law, the continued detention of the detenu would be illegal and void", the Court says in this respect. Relying on the Supreme Court's dictum in Amratlal Prajivandas, the Court points out that the gravity and nature of the detenu's act can be understood only after the detaining authority applies his mind. This application of mind is evidenced by the reasons furnished, the Court goes on to say. "That though ordinarily one act may not be held sufficient to sustain an order of detention, one act may sustain an order of detention if the act is of such a nature as to indicate that it is an organized act or manifestation of organized activity. The gravity and nature of the act is also relevant and the test is whether the act is such that it gives rise to an inference that the person would continue to...

'A Jurisdiction Of Suspicion': Kerala High Court Lays Down Guidelines For Detention Under Preventive Detention Laws

Lydia Suzanne Thomas

"…if there is a breach of any such provision, the rule of law requires that the detenu must be set at liberty, however wicked or mischievous he may be."

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