Writ At A Pre Detention Stage Can Only Be Granted When There Is A Potential Threat For Violation Of Article 21: Madras High Court

  • Shruti Kakkar
  • 08:18 PM, 08 Feb 2021

The Madras High Court has observed that the power to issue a writ of mandamus to interfere at a pre detention stage must be exercised only in exceptional cases.

"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", Single Bench of Justice N. Anand Venkatesh noted.

In the present case, an F.I.R. was registered against the Petitioner ( accused number 2 { A2}) and accused number 1 (A1) of offenses under section 406, 420, and 506(i) of the Indian Penal Code,1860 for unjustly enriching himself up to the tune of Rupees Forty-Five Crores by involving in a fraudulent financial scheme. In the course of the investigation, the Petitioner was enquired, arrested, and remanded to judicial custody on 02.01.2021. Since A1 was already detained under Tamil Nadu Act 14 of 1982, the Petitioner apprehended for his detention and represented before the respondent on 21.01.2021, explaining his position and requesting the respondent not to detain him, which they rejected. After that, the Petitioner filed the present petition praying for the issuance of a writ of mandamus to direct the respondents from not passing an order for preventive detention against the Petitioner under Tamil Nadu Act No 14 of 1982.

The Bench relied on Supreme Court judgments such as Subash Popatlal Dave v. Union of India and Anr. (2012) 7 SCC 533, S.M.D. Kiran Pasha v. Government of Andhra Pradesh and Ors. 1990 (1) SCC 328 and Addl. Secy. To the Govt. of India v. Alka Subhash Gadia (Smt) reported in 1992 S.C.C. Supp 496 to observe that specific reference to a pre detention order which is yet to be executed can be interfered with by issuing a writ of mandamus in the following contingencies:

  • that the impugned order is not passed under the Act under which it is purported to have been passed;
  • that it is sought to be executed against a wrong person;
  • that it is passed for a wrong purpose;
  • that it is passed on vague, extraneous, and irrelevant grounds; or
  • that the authority which passed it had no authority to do so.

It further observed that the above five grounds are merely illustrative and not exhaustive. Therefore, the Court's power under Article 32 and 226 of the Constitution of India to review a decision of the executive cannot be subjected to any restrictions and that these powers are untrammeled for protecting citizens' rights.

The Court, while dismissing the petition, observed that apprehension in the mind of the Petitioner that since one accused has been detained under Act 14 of 1982, he would be raped and detained too is a far fetched ground for the Court to exercise its jurisdiction under Article 226 of the Constitution. There was absolutely no overt act available for the Court to even prima facie satisfy itself that there is a potential threat of violation of Article 21 of India's Constitution,1950.

Case Title: D.Aswin Rao v. The State rep.by its Additional Chief Secretary, Home Department, Government of TamilNadu

Law Point/Statute Involved: Article 21, Article 226 of the Constitution of India,1950 and Tamil Nadu Act of 14 of 1982

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