The Supreme Court, in the Jaseela Shaji v. The Union of India & Ors (2024) case on 12 September made it mandatory for all detaining authorities to furnish vital documents and statements to individuals placed under preventive detention.
- The case involved a preventive detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) upheld by the Kerala high court in March 2024.
- The decision by a bench headed by Justice Bhushan R Gavai reinforced the constitutional guarantee of personal freedom and stressed the importance of allowing detainees a fair opportunity under Article 22(5) of the Constitution to challenge such orders.
Key points
- The bench ruled that the failure to supply all relevant documents and statements, especially in a language the detainee is conversant with, hampers their right to effectively contest the detention.
- The bench said that all such materials which have been relied upon by the detaining authorities in forming its subjective satisfaction must be supplied to the detenue.
- It added that the right to effective representation is a constitutional right that cannot be frustrated.
- The object of Preventive Detention is not to Punish but to prevent the detenu from doing something which is prejudicial to the State.
- Article 22(3) provides that if the person who has been arrested or detained under preventive detention laws then the protection against arrest and detention provided under article22 (1) and22 (2) shall not be available to that person.
- Preventive detention can be made only on four grounds: Security of state, maintenance of public order; maintenance of supplies and essential services and defense; foreign affairs or security of India.
- A detainee under preventive detention can have no right of personal liberty guaranteed by Article 19 or Article 21.
- Article 22(5) of the Constitution obligates the detaining authorities to communicate the grounds of detention and afford them the earliest opportunity of assailing such orders of detention.
- It noted that the non-supply of the statement of a witness was a major lacuna that rendered the detention order bad in law.
