PREVENTIVE DETENTION

1
Under the Constitution of India, the Legislature has been empowered to provide for preventive detention even in times of peace. Entry 9 of List I, of course, relates to reasons connected with war or the external security of India; but Entry 3 of List III authorises the Union and State Legislatures to provide for preventive detention to maintain internal security, public order and the essentials of life, apart from any condition of war. This is undoubtedly an extraordinary departure from the English ideal of personal liberty. And this is why courts have to particular care and caution in applying a law passed under this power even though they may not be competent to question the wisdom or propriety of the provision itself. Since the above view was expressed at p. 172 of the 2nd Ed. of this Commentary, the Supreme Court of India has observed: Preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the court.1

2
The right to know, receive and impart information has been recognised under the right to freedom of speech and expression.2 A citizen has a fundamental right to use the best means of imparting and receiving information and as much as such to have an access to telecasting for the purpose. The right to know has, however, not yet extended to the extent of invalidating Section 5 of the Official Secrets Act, 1923 which prohibits disclosure of certain official documents. In S.P. Gupta v. Union of India3, it was admitted that whenever disclosure of document is clearly contrary to the public interest it is immune from disclosure. But the decision on such immunity will rest with the court and not with the head of government or department. Rejecting the plea for disclosure of supporting documents and evidence in Vohra Committee report, held that transactions which had serious repercussions on public security can legitimately be claimed to be secret in the public interest.4 In Prabha Dutt v. Union of India5, the Supreme Court of India directed the Superintendent of the Tihar Jail to allow the representatives of a few newspapers to interview two death sentence convicts under Article 19(1)(a) though with the observation that the right under Article 19(1)(a) is not an absolute right, nor indeed does it confer any right on the press to have an unrestricted access to means of information. The right to know or the right to information was
1

Ram Krishna v. State of Delhi, AIR 1953 SC 318 (320): 1953 SCR 708: 1953 CrLJ 1241. [ See also Rameshwar v. D.M., (1964) II SCA 724 2 S.P.Gupta v. Union of India, 1981 Supp SCC 87: AIR 1982 SC 149 at p. 234; Secy, Ministry of I&B Govt. of India v. Cricket Assn. of Bengal, (1995) 2 SCC 161 3 1981 Supp SCC 87 at pp. 284-286. Also State of U.P. v. raj Narain, (1975) 4 SCC 428 4 Dinesh Trivedi v. Union of India, (1997) 4 SCC 306 5 (1982) 1 SCC 1 : AIR 1982 SC 6

uniformly recognised by the Court in a number of cases as an aspect of freedom of speech and expression in Article 19(1)(a) until finally it was incorporated in the Right to Information Act 2005 and given full mechanism for its realisation.6

3
The court can interfere on the ground that what has been stated is insufficient for making a representation. But interference can be had on the ground that what has been stated is insufficient for making a representation or that the authority has failed to apply his mind to whether the supply of such facts would be prejudicial to the public interest, in which case, the order would be treated as arbitrary.7 The sole test for determining the sufficiency of the facts disclosed is the sufficiency for giving an opportunity to make representation.8 What is of utmost importance in this case is that the valuable right of the detenu to make a representation under Article 22(5) of the Constitution is breached by the arbitrary decision of authority to not disclose the facts

See, e.g. Sheela Barse v. State of Maharashtra, (1987) 4 SCC 373; State v. Charulata Joshi, (1999) 4 SCC 65; Union of India v. Assn. For Democratic Reforms, (2002) 5 SCC 294; PUCL v. Union of India, (2003) 4 SCC 399; PUCL v. Union of India, (2004) 2 SCC 476: AIR 2004 SC 1442 7 Ganga Ramchand Bharwani v. Government of Maharashtra, AIR 1980 SC 1744 : (1980) 4 SCC 624 8 State of Bombay v. Atmaram, (1951) SCR 167 : AIR 1988 SC 2090 : (1988) SC 1744