The Madras High Court recently held that high courts have the power to excercise the writ jurisdiction even at the pre-detention stage where there is a potential threat of a violation of fundamental rights under Article 21 of the Constitution (right to life and personal liberty).
Justice N Anand Venkatesh, however, emphasised that the Court can interfere in this manner only if there is sufficient material to show that there is a threat to fundamental rights.
"Article 226 of the Constitution empowers the High Court to exercise its Writ Jurisdiction even at a pre-detention stage where this Court finds that there is a threat of a potential violation of the fundamental right under Article 21 of the Constitution. This Court in order to satisfy itself that there is a potential threat of violation of Article 21 of the Constitution, must have some materials before it. In other words, it cannot be based on mere apprehensions and this Court can only act on some overt acts", reads the order.
Referring to a host of case laws laid down by the Supreme Court on the issue, Justice Venkatesh also outlined the broad grounds upon which a High Court can exercise its writ powers against detention orders at the pre-execution stage, i.e.
Where the challenged order is not passed under the Act under which it is purported to have been passed;
Where the detention order is sought to be executed against a wrong person;
Where the detention order is passed for a wrong purpose;
Where the detenton order is passed on vague, extraneous and irrelevant grounds; or
Where the the authority which passed the detention order had no authority to do so.
Referring to the Supreme Court's ruling in Subash Popatlal Dave v. Union of India and Anr, Justice Venkatesh added that these grounds are merely illustrative in nature and not exhaustive. He recounted that,
"The Hon’ble Supreme Court recognized the fact that the power exercised under Article 226 and Article 32 of the Constitution while reviewing an executive decision can never be subjected to any restrictions and such powers are untrammeled to protect the rights of the citizens."
The case that prompted the discussion concerned a plea moved apprehending detention under the Tamil Nadu Goondas Act, 1982. The petitioner was the second accused in a case involving allegations of financial fraud and had already been remaded to judicial custody. The first accused had been detained under the Goondas Act, prompting the petitioner to move the High Court on apprehensions that he too would be detained under the preventive detention law.
The High Court ultimately dismissed the plea upon opining that at present there is only an apprehension in the petitioner's mind that he may be detained under the Goondas Act because a co-accused was so detained.
This ground is too far-fetched for the Court to exercise its jurisdiction under Article 226 of the Constitution, Justice Venkatesh said, given that there was no overt act to even prima facie satisfy the Court that there is a potential threat of violation of Article 21.
"This Court must keep in mind that a writ of mandamus should not be issued where it indirectly restrains an authority from performing or exercising their statutory function. This Court must perform a balancing act in cases of this nature and interfering at a pre-detention stage must be far and few depending upon the exigencies in a given case. In other words, only in exceptional cases, this Court can exercise such a power", the Court added while dismissing the petition.