Source: Supreme Court 

Why in News? 

Recently the Supreme Court in the matter of Dhanya M v. State of Kerala difference between 'public order' and 'law and order' and clarified that preventive detention cannot be used merely as a substitute for criminal prosecution or to circumvent bail orders. 

What was the Background of Dhanya M v. State of Kerala (2025) Case? 

Background and Initial Circumstances: 

• Rajesh (detenu) was running a registered lending firm named 'Rithika Finance'. 
• He was involved in multiple criminal cases related to money lending activities. 
• District Police Head, Palakkad declared him a 'notorious goonda' and threat to society at large. 

Criminal Cases Against the Detenu: 

• Crime No.17/2020: Under Section 17 of Kerala Money Lenders Act, 1958, and Section 3, 9(1)(a) of Kerala Prohibition of Charging Exorbitant Interest Act, 2012, at Kasaba Police Station. 
• Crime No.220/2022: Under Section 3 read with Section 17 of Kerala Money Lenders Act, 1958, and Section 9(a)(b) read with Section 3 of Kerala Prohibition of Charging Exorbitant Interest Act, 2012, at Town South Police Station. 
• Crime No.221/2022: Under Section 294(b), 506(I) of Indian Penal Code, 1860, and Section 3 read with Section 17 of Kerala Money Lenders Act, 1958, and Section 9(a)(b) read with Section 3 of Kerala Prohibition of Charging Exorbitant Interest Act, 2012. 
• Crime No.401/2024: Under Sections 341, 323, 324, 326 of Indian Penal Code, 1860; Section 17 of Kerala Money Lenders Act, 1958; Section 4 of Kerala Prohibition of Charging Exorbitant Interest Act, 2012, and Section 3(2), (va), 3(1)(r), 3(1)(s) of SC/ST Prevention of Atrocities Act, 1989. 

Legal Proceedings Journey: 

Court of District Magistrate: 

• On 29th May 2024, Palakkad District Police Head made Recommendation No.54/Camp/2024-P-KAA(P)A. 
• On 20th June 2024, District Magistrate, Palakkad issued detention order under Section 3(1) of Kerala Anti-Social Activities (Prevention) Act, 2007. 
• Detenu was taken into custody pursuant to this order. 

High Court: 

• Dhanya M (appellant/wife of detenu) filed writ petition WP(CRL)No.874/2024 before High Court of Kerala at Ernakulam. 
• She prayed for the writ of Habeas Corpus against illegal detention of her husband. 
• On 4th September 2024, the High Court dismissed the challenge and affirmed the detention order. 

Supreme Court: 

• Appellant preferred Criminal Appeal No.2897 of 2025 arising out of SLP(Crl.) No.14740/2024. 
• The Supreme Court granted leave and heard the matter.

What were the Court’s Observations?

On Preventive Detention as Extraordinary Power: 

• Preventive detention is an extraordinary power in the hands of the State that must be used sparingly. 
• It curtails liberty of individual in anticipation of commission of further offences 
• Must not be used in the ordinary course of nature. 
• Power finds recognition under Article 22(3)(b) of the Constitution of India, 1950 (COI).  
• It is an exception to Article 21 and must be applied only in rare cases. 

On Burden of Proof: 

• Given the extraordinary nature of preventive detention, the burden is on detaining authority to prove actions are in conformity with procedure established by law. 
• The action of preventive detention has to be checked with Article 21 of the Constitution and relevant statutes. 

On Public Order vs Law and Order Distinction: 

• Person who indulges in activities "harmful to maintenance of public order" is covered by the Act 
• A crucial distinction exists between public order and law and order situations. 
• 'Law and order' are wider in scope while 'Public order' has narrower ambit. 
• Public order is even tempo of life of community taking country as whole or specified locality. 
• True distinction lies not merely in nature or quality of act, but in the degree and extent of its reach upon society. 
• Acts confined to a few individuals directly involved raise problems of law and order only. 
• Acts affecting a wide spectrum of the public effect public order. 

On Present Case Analysis: 

• Attending facts and circumstances do not fall under the category of public order situation. 
• Observations in detention order do not ascribe reason as to how detenu's actions are against public order of State. 
• No reasons assigned by detaining authority as to why actions warrant exercise of exceptional power. 
• The authorities stated detenu was violating bail conditions, but no application filed by the State alleging such violation. 
• Bail conditions were not even spelled out in order. 

On Use of Preventive Detention Instead of Bail Cancellation: 

• State should move for cancellation of bail instead of placing detenu under preventive detention. 
• Provisions of extraordinary statute should not be resorted to when ordinary criminal law provides sufficient means. 
• Circumstances did not warrant circumvention of ordinary criminal procedure to resort to extraordinary measures. 
• Order of detention cannot be sustained as circumstances may be ground for bail cancellation but not preventive detention

What is Preventive Detention? 

Constitutional and Legal Framework: 

• Preventive detention is a draconian measure whereby a person who has not been tried and convicted can be detained for a determinate period. 
• Extreme mechanism is sanctioned by Article 22(3)(b) of Constitution of India 
• Article 22 provides stringent norms to be adhered to while preventing preventive detention. 
• Article 22 speaks of Parliament making law prescribing conditions and modalities relating to preventive detention. 
• Preventive detention deprives person of individual liberties by detaining for length of time without being tried and convicted. 

Principles and Safeguards: 

• Prescribed safeguards must be strictly observed to ensure due compliance with constitutional and statutory norms. 
• The power of preventive detention is an exception to Article 21 and must be applied as such. 
• It must be applied only in rare cases and as an exception to the main rule. 
• The law of preventive detention is a hard law and should be strictly construed. 
• Care should be taken that liberty of person is not jeopardized unless the case falls squarely within four corners of relevant law. 

Burden and Standard of Proof: 

• Burden on detaining authority to prove that actions are in conformity with procedures established by law. 
• Action of preventive detention has to be checked with Article 21 of the Constitution and statute in question. 
• Material available must satisfy the requirements of legal provisions authorizing such detention. 

Restrictions on Use: 

• Should not be used merely to clip wings of accused involved in criminal prosecution. 
• Not intended for keeping a person under detention when under ordinary criminal law, it may not be possible to resist bail orders. 
• When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinizing validity of preventive detention orders. 
• Particularly when preventive detention is based on the very same charge to be tried by a criminal court.