Fine call by court

For the nth time, Supreme Court has held a case of preventive detention illegal, and fined, this time, UP govt Rs 10L. SC imposed the fine for “blurring…the distinction between punitive and preventive jurisdictions, in substance.” The unfortunate reality is, authorities blur this distinction in a case too many. Special laws such as NSA, PSA, and PMLA make bail tough, where routine criminal law allows bail. Courts have repeatedly held that authorities/ govts can’t keep individuals in lockup/ jail under these laws, where the apparent objective is to ensure undertrials don’t stand a chance at bail. Routine criminal law, allowing bail, would suffice in many of these cases. Courts have held special laws give the executive extraordinary power in stringent provisions, but only within tightly defined boundaries.Allahabad HC had also held govt failed to distinguish between areas of law & order, and public order. If the petitioner was likely to harm law & order only, and not impact public order, then detention under NSA wasn’t legally sustainable. Similarly, J&K quashed a PSA detention last year, because authorities combined two grounds, when the law separates them – acting against security of state, and acting against public order. The difference between law & order, and public order, is not rocket science. What Justice Hidayatullah (Lohia v Bihar 1966) held decades ago bears repeating: “Imagine three concentric circles… ‘Law and order’ represent the largest circle within which is the next circle representing ‘public order’ and the smallest circle represents ‘security of state’… An act may affect law & order, but not public order, just as an act may affect public order, but not security of state.”In case after case, courts have found legal error with preventive detention under special laws. They’ve held that govts stretched their exceptional powers beyond the statute, that requirements for preventive detention weren’t met. That authorities have been fined in such a case is a timely wake-up call.Disclaimer: Views expressed above are the author's own.