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The state is not under an obligation to disclose under the Right to Information Act(RTI)  the grounds of detention of a person under a preventive detention law before his arrest, the Supreme Court has ruled.

  A three-judge bench of justices Altamas Kabir, Gyan Sudha Misra and J Chelameshwar said a detune under the preventive detention laws like NSA, COFEPOSA etc is not required to be treated in the same manner as a person arrested in connection with the commission of an alleged offence.

  “Since clause (5) of Article 22 provides that the grounds for detention are to be served on a detune after his detention, the provisions of Section 3 of the RTI Act, 2005, cannot be applied to cases relating to preventive detention at the pre-execution stage”.

  “In other words, Section 3 of the RTI Act has to give way to the provisions of Clause (5) of Article 22 of the Constitution,” said Justice Kabir, writing the judgement for the bench.

  Under Article 22 of the Constitution, the authorities are under an obligation to disclose to a person the reasons for his or her arrest.

  “Notwithstanding the provisions of the RTI Act, 2005, the State is not under any obligation to provide the grounds of detention to a detune prior to his arrest and detention, notwithstanding the fact that in the cases of Choith Nanikram Harchandai and Suresh Hotwani & Anr, the grounds of detention had been provided to the detune under the RTI Act, 2005, at the pre-execution stage”.

  “The procedure followed under the RTI Act, in respect of the said writ petitions cannot and should not be treated as a precedent, ” the bench said.

  The apex court gave the ruling while dismissing a bunch of applications seeking disclosure of information under the RTI Act for detunes at the pre-detention stage.

  The apex court said its earlier judgement in the Choith Nanikram Harchandai and Suresh Hotwani case wherein it was ruled that such disclosure was mandatory should not be treated as a precedent.

  It said the provisions relating to production of an arrested or detained person, contained in clauses (1) and (2) of Article 22 of the Constitution, have excluded their benefit in respect of a person detained under any preventive detention law.

  The bench said sub section (1) of Section 8 of the RTI Act, made an exception to the disclosure of information which could be contrary to the interests of the nation or which over-weighed the personal interests of the citizen.

  The apex court also ruled that powers of the Supreme Court and high courts for protecting the fundamental rights of the citizens cannot be curtailed by any judicial order.

  “The exercise of powers vested in the superior courts in judicially reviewing executive decisions and orders cannot be subjected to any restrictions by an order of the court of law.

  “The most precious right of a citizen is his right to freedom and if the same is to be interfered with, albeit in the public interest, such powers have to be exercised with extra caution and not as an alternative to the ordinary laws of the land,’ the bench said.

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4 years 3 months ago

An excellent approach. Our justice system is riddled with equities in favour of the accused. Detention some times very necessary in the larger interests of nation. We should not condemn simple detention without any physical harassment to the citizen.