Though Court Has No Jurisdiction To Alter Period Of Detention Under Preventive Detention Law, Article 21 Can Be Invoked In Exceptional Circumstances To Order Release: Kerala HC

While displaying the highest level of paramount importance for human rights, one feels most proud to note that the Kerala High Court in a most learned, laudable, landmark, logical and latest judgment titled Sreeja vs State of Kerala & Ors in WP (Crl.) No. 971 of 2023 and cited in Neutral Citation No.: 2023:KER:68791 that was pronounced as recently as on November 8, 2023 has ordered the release of a woman who was detained under the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter KAAPA Act) considering the humanitarian ground that her daughter is at an advanced stage of her pregnancy and therefore urgently needed assistance and care of close family members. It must be mentioned here that the Division Bench of Kerala High Court comprising of Hon'ble Mr Justice A Muhamed Mustaque and Hon'ble Mr Justice Shoba Annamma Eapen in its most sagacious judgment pointed out most emphatically that notwithstanding statutory limitations, the Constitutional Court could, in exceptional circumstances, recognize the right under Article 21 of the Constitution, ensuring life and liberty, and order the release of an individual detained in custody. It is worth mentioning here that the petitioner who being a lady with her daughter being in an advanced stage of pregnancy had pleaded that there was no one to care for her daughter and child and had therefore appealed for the modification of her detention period on humanitarian grounds. It must also be mentioned here that the Kerala High Court clarified that this decision is not based on any specific law but on the "superior" fundamental right to life and liberty under Article 21 of the Indian Constitution. The Kerala High Court was considering a petition by a woman who was facing over 19 criminal cases that were covered primarily under Section 406 pertaining to criminal breach of trust and Section 420 pertaining to cheating of the Indian Penal Code.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon'ble Mr Justice A Muhamed Mustaque for a Division Bench of Kerala High Court comprising of himself and Hon'ble Ms Justice Shoba Annamma Eapen sets the ball in motion by first and foremost putting forth in para 1 that, "The issue that arises in this writ petition after hearing the learned Counsel for the petitioner and the learned Government Pleader is that whether this Court can modify the period of detention of the detenue under the Kerala Anti-Social Activities (Prevention) Act, 2007 (for short "the KAAPA Act")."

As we see, the Bench then spells out in para 2 disclosing that, "Having gone through the impugned order, we find no reason to interfere with this order, inasmuch as the same was issued to secure the public order. The petitioner herein is a lady, who is involved in more than 19 cases. All most all the cases of the petitioner are related under Sections 406 and 420 of IPC."

On the one hand, we find that the Bench is very forthright in holding in para 3 that, "When a person indulge in anti-social activity, which has become a pattern, then it becomes an issue related to public order. In that sense, we find no reason to interfere with the impugned order. However, the learned Counsel for the petitioner submitted that, the petitioner is a lady and her daughter is in her advanced stage of pregnancy. It is further submitted that an order may be issued to release her to take care of her daughter and child. It is in this context, the question relating to the modification of the detention order arises for consideration before this Court."

Most significantly and so also most commendably and most forthrightly and so also most remarkably, on the other hand, we then see that the Bench minces just no words to state in no uncertain terms most forcefully in para 4 mandating that, "The learned Government Pleader placing reliance on the judgment of this Court in Kumaran v. District Collector reported in 2015(4) KLT 911, submits that the Court has no jurisdiction to alter the period of detention under Section 3 of the KAAPA. The learned Government Pleader is justified in making such submission as normally the Court cannot interfere with the detention order of the detenue under Section 3(1) of KAAPA Act. However, nothing prevents the constitutional Court from recognising the right under Article 21 under the peculiar circumstances in which an individual is placed. In exceptional circumstances, the recognition invoking Article 21 of the Constitution of India, the Court can order release of such person who is detained in custody. This order is not with reference to invoking statutory provision but with reference to superior right available to such person on a justifiable ground under Article 21 of the Constitution to ensure life and liberty of such citizens and others. It is pleaded before us that nobody is there to take care of her daughter and child and on humanitarian grounds, the period of detention be modified."

Finally and far most significantly, we observe that the Bench then concludes by holding most brilliantly and most sagaciously in para 5 that, "The documents produced before this Court establishes that the daughter is in her advanced stage of pregnancy and she needs care and protection from her mother, who is the detenue. The detenue had already undergone substantial period of detention and further period of detention will expire on 15.12.2023. In such circumstances, we are of the view that the detenue shall be released from the jail on 14.11.2023, without serving further period of detention nearly one month.

The Writ Petition Criminal is disposed of accordingly."

All said and done, we thus see most distinctly that in this leading case considering the humanitarian ground of detenue's daughter's advanced pregnancy that certainly cannot be ever glossed over and the detenue's claim that there is nobody to take care of her daughter and child, the Court while rising to the occasion and displaying the paramount respect for legal rights and human rights on humanitarian grounds deems it fit to intervene and thus decided to modify the period of detention which has to be indubitably lauded as it was the crying need of the hour also! We also cannot lose sight of the irrefutable fact that the documents provided also confirmed the daughter's advanced pregnancy and since the detenue had already undergone a substantial period of detention and so the Court deemed it fit to order her release from jail one month before the scheduled expiration of the further period of detention which has to be applauded and admired by one and all! As a consequence, we thus see that this writ petition was disposed of accordingly! There can definitely be no gainsaying that we have to concede that the Kerala High Court while conceding graciously that the Court lacked jurisdiction to alter the period of detention under Section 3 of the KAAPA Act and acknowledging this limitation simultaneously but underscored that, in exceptional circumstances, the Constitutional Court can recognize the right under Article 21 of the Constitution, ensuring life and liberty and order release.

Of course, there can be no quibbling with what the Kerala High Court has ruled here and we have to acknowledge, applaud and accept that such rulings are the crying need of the hour and all the Courts in India and all the Judges in India must definitely emulate such most sagacious and superb judgments which accord sacrosanct human rights and constitutional rights the highest priority which certainly stands paramount above which there cannot be anything else! Very rightly so! No denying or disputing it!