Possible Apprehension Of Breach Of Law And Order Cannot Be A Ground For Preventive Detention: SC
The Supreme Court of India has consistently held that mere apprehension of breach of law and order cannot be a valid ground for invoking preventive detention under preventive detention laws. There is a crucial legal distinction between a "law and order" situation and a "public order" situation. Preventive detention can only be justified under the latter.
🔍 Preventive Detention: Legal Framework
Preventive detention refers to the detention of a person without trial, with the objective of preventing the individual from committing an offence in the future.
Key laws governing preventive detention in India include:
The Constitution of India, Article 22 (clause 3–7)
National Security Act, 1980 (NSA)
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), etc.
⚖️ Distinction Between "Law and Order" and "Public Order"
1. Law and Order:
Refers to disorders at an individual or local level, which can be handled by regular law enforcement through ordinary criminal law.
2. Public Order:
Refers to more serious threats that affect the community or society at large, disturbing the even tempo of life, and thereby justifying preventive detention.
🧠 Key Principle: Every breach of public order is a breach of law and order, but *every breach of law and order is not necessarily a breach of public order.
🧑⚖️ Key Supreme Court Judgments
✅ 1. Dr. Ram Manohar Lohia v. State of Bihar (1966 AIR 740)
Facts: Detention order was passed under the Defence of India Rules on the ground of potential disturbance to public order.
Held:
The Supreme Court distinguished between “law and order” and “public order.” It held that:
“The contravention of law, although punishable, does not automatically justify preventive detention unless it affects public order.”
Significance:
This case laid the foundational jurisprudence on the distinction between law and order vs public order.
✅ 2. Ashok Kumar v. Delhi Administration (1982 AIR 1143)
Held:
Preventive detention can only be justified if the person's acts are prejudicial to public order, not merely violating law and order.
Quote:
“A solitary act of violence or lawlessness not affecting the community at large does not justify preventive detention.”
✅ 3. Aruna Sen v. State of West Bengal (1974 AIR 666)
Held:
A preventive detention order must be based on clear, proximate and relevant material showing the likelihood of threat to public order.
✅ 4. Rekha v. State of Tamil Nadu (2011) 5 SCC 244
Facts: Preventive detention was ordered based on an apprehension that the detainee may commit offences under ordinary law.
Held:
The Court struck down the detention, observing:
“Preventive detention is a serious encroachment on personal liberty, and it must be used only in exceptional cases of real necessity.”
The Court emphasized:
Detention cannot be used merely as a substitute for regular criminal prosecution.
Apprehension must be real and imminent, not vague or speculative.
✅ 5. Khudiram Das v. State of West Bengal (1975 AIR 550)
Held:
Detention must not be based on irrelevant or non-existent grounds. Courts can review the subjective satisfaction of the detaining authority.
The court ruled that judicial review is permissible to ensure that detention is not based on “extraneous considerations.”
✅ 6. Ramesh Yadav v. District Magistrate, Etah (1985 SCR (3) 389)
Held:
Preventive detention should not be used as a shortcut when regular criminal law is adequate.
📌 Summary of Principles
| Principle | Explanation |
|---|---|
| 1. Public Order vs Law and Order | Only threats to public order justify preventive detention. |
| 2. No Substitution for Regular Law | Preventive detention cannot replace normal criminal proceedings. |
| 3. Real & Imminent Threat Required | Mere apprehension or suspicion is not sufficient. |
| 4. Subjective Satisfaction Reviewable | Courts can review whether the grounds for detention are genuine and relevant. |
| 5. Liberal Interpretation in Favour of Liberty | Preventive detention laws must be strictly construed to protect individual freedom. |
🏁 Conclusion
Preventive detention is an extraordinary measure and must be used sparingly and with caution. The Supreme Court has repeatedly affirmed that a mere apprehension of breach of law and order is not enough to justify preventive detention. There must be a clear, present, and significant threat to public order for such a measure to be lawful.
The case law strongly supports the protection of individual liberty and checks the abuse of preventive detention powers.
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