The Supreme Court on Wednesday ruled that preventive detention is a “draconian measure” and that oral communication of its grounds to detainees is insufficient under Article 22(5) of the Constitution, as reported by Deccan Herald.
A bench comprising Justices Sanjay Kumar and Augustine George Masih quashed the preventive detention orders issued against Ashraf Hussain Choudhary and his wife, Adaliu Chawang, by Nagaland authorities on May 30, 2024, under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1988. The court criticized the authorities for failing to meet the mandatory requirements, stating that they had merely “gone through the motions” mechanically.
The court underscored that preventive detention deprives individuals of their liberty without trial or conviction, necessitating strict adherence to constitutional safeguards. The ruling came in response to a plea filed by Mourtaza Hussain Choudhary, challenging a Gauhati High Court order that had dismissed his writ petition against the detention of his brother and sister-in-law.
The couple had already been arrested in an NDPS case, but the investigating agency failed to file a chargesheet, leading to their release on default bail. However, they were later detained under preventive detention laws, a move the Supreme Court found unjustified.
Citing the Constitution Bench judgment in Harikisan Vs State of Maharashtra and Others (2019), the court reaffirmed that if a detainee is not conversant with English, the grounds for detention must be provided in a language and script they understand. In this case, the authorities claimed to have explained the grounds in Nagamese orally, arguing that this was sufficient. The Supreme Court rejected this argument, stating that mere oral communication does not fulfill the constitutional requirement.
“Expecting the detenus to remember what was orally explained to them from voluminous documents on June 3, 2024, and to recall the same effectively for making representations on June 12, 2024, would be practically impossible,” the bench noted.
The court also found procedural lapses in the detention process. The detaining authority, Special Secretary, Home Department, Nagaland, did not formulate separate grounds for detention but relied on proposals forwarded by the Additional Director General of Police (Administration), Nagaland. The bench criticized the “cryptic orders” that justified the detention, stating that they failed to meet statutory requirements.
Section 6 of the NDPS Act mandates detention orders to be based on separate grounds, and Section 3(1) requires that the detaining officer be independently satisfied that the individual needs to be detained. However, in this case, the court found that the detaining authority did not independently assess the necessity of detention but relied on a “bald recital” of satisfaction from the police proposals.
(With inputs from Deccan Herald)