The Madras High Court recently ruled that High Courts can exercise their writ jurisdiction even in the pre-detention stage where there is a risk or danger of a violation of fundamental rights under Article 21 of the Constitution which sets out the right to life and personal liberty.
Referring to a number of Supreme Court case laws on the matter, Justice Venkatesh has also set out the broad grounds upon which a High Court can exercise its writ powers against warrants at the pre-execution stage. The grounds are –
• 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 detention 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.
The case that sparked 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 taken into 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 claim upon opining that at present there is only one in arrest. In the opinion of the petitioner, he can be detained under the Goondas Act because a co-accused was also detained.