The Supreme Court recently set aside the preventive detention under the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA). The Court emphasized that the extraordinary power of preventive detention must be exercised sparingly and strictly in line with constitutional safeguards, reaffirming the principle that the liberty of an individual cannot be curtailed lightly.

The judgment by Justice Sanjay Karol and Justice Manmohan underscored the difference between 'public order' and 'law and order' and clarified that preventive detention cannot be used merely as a substitute for criminal prosecution or to circumvent bail orders.

"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," the Court observed.

Background

Rajesh, a registered moneylender operating under the name 'Rithika Finance', was detained by an order of the District Magistrate, Palakkad, dated June 20, 2024, under Section 3 of KAAPA. The order was based on several criminal cases, including alleged offences under the Kerala Money Lenders Act, Kerala Prohibition of Charging Exorbitant Interest Act, IPC sections, and the SC/ST (Prevention of Atrocities) Act.

The detenu's wife, Dhanya M, challenged the detention order before the Kerala High Court through a writ petition seeking a writ of habeas corpus. The High Court, on September 4, 2024, dismissed the petition, holding that procedural safeguards had been complied with and that the detaining authority need not consider the possibility of acquittal in the pending cases.

Aggrieved, the appellant approached the Supreme Court, contending that the detenu was on bail in all pending cases and that the detention order was a misuse of preventive detention powers.

Court's Findings

The Court reiterated that preventive detention is an extraordinary measure that must be sparingly used, being an exception to the right to personal liberty guaranteed under Article 21 of the Constitution. It referred to Rekha v. State of Tamil Nadu [(2011) 5 SCC 244], holding 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.

Given the extraordinary nature of the power of preventive detention, the Court referred to Icchhu Devi v. Union of India [(1980) 4 SCC 531], placing the burden on the detaining authority to prove that such actions are in conformity with the procedure established by law, in consonance with Article 21. Similarly, in Banka Sneha Sheela v. State of Telengana [(2021) 9 SCC 415], the Court reiterated that an action of preventive detention has to be checked against Article 21 of the Constitution and the statute in question.

The Court emphasized the distinction between 'law and order' and 'public order', citing SK. Nazneen v. State of Telangana [(2023) 9 SCC 633] and Nenavath Bujji v. State of Telangana [2024 LiveLaw (SC) 253].

In SK. Nazneen v. State of Telangana, it was held that:

“The detention orders were not justified as it was dealing with a law and order situation and not a public order situation.”

Quoting the decision in Nenavath Bujji v. State of Telangana, the Court said:

“The distinction between the areas of 'law and order' and 'public order' is one of degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise a problem of law and order only. In other words, the true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society.”

Thus, in the present case, the Court said:

“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.”

The Court also relied on Ameena Begum v. State of Telengana [2023 LiveLaw (SC) 743] while addressing the issue of bail conditions. It was emphasized the decision that:

“There may have existed sufficient grounds to appeal against the bail orders, but the circumstances did not warrant the circumvention of ordinary criminal procedure to resort to an extraordinary measure of the law of preventive detention.”

The Court also looked at the precedent of Vijay Narain Singh v. State of Bihar [(1984) 3 SCC 14] and quoted the judgment:

“… It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution.”

The Supreme Court thus set aside the preventive detention order dated June 20, 2024, and the Kerala High Court's judgment dated September 4, 2024. The Court observed that while the State could have moved to cancel bail in the pending cases, the use of preventive detention was unjustified.

Case Title: Dhanya M vs State of Kerala 

Citation : 2025 LiveLaw (SC) 681

Click Here To Read/Download Judgment