Team  SoOLEGAL

High Court can intervene at pre-detention stage where there is a potential infringement of fundamental rights: Madras High Court

Team SoOLEGAL 8 Feb 2021 3:14pm

High Court can intervene at  pre-detention stage where there is a potential infringement of fundamental rights: Madras High Court

The High court of Madras recently held that the High Court may exercise its jurisdiction even during the pre-detention stage, when there is a threat under Article 21 of the Indian constitution of violations of fundamental rights.

However, Judge N Anand Venkatesh reiterated that the Court could only intervene in such a way if enough evidence exists to prove that fundamental rights are being threatened. In addition, he has set out broad grounds for exercising the writ powers against arrest order at the pre-execution stage in this regard, i.e.

  1. Where the arrest warrant is obtained against a false person.
  2. Where the arrest warrant for the wrong reason is passed.
  3. Where the order of detention is issued for unclear, and irrelevant reasons.
  4. Where there was no power for the authority that passed the arrest warrant to do so.
  5. Where the order under challenge is not issued under the Act under which it is alleged to have been issued.

Making reference to the Supreme Court ruling in Subash Popatlal Dave v Union of India and Anr, Writ Petition, Justice Venkatesh added that such grounds are merely demonstrative in essence and not exhaustive. He ordered that, "the Hon’ble Supreme Court recognized the fact that the power exercised under Article 226 and Article 32 of the Constitution while reviewing an executive decision can never be subjected to any restrictions and such powers are untrammeled to protect the rights of the citizens. And the Court must bear in mind that a writ of mandamus cannot be granted where it implicitly prevents an authority from executing or exercising its statutory role. In cases of this sort, the Court must conduct a balancing act and intervene at a pre-detention stage depending on the conditions of the case.



Tagged: High Court   fundamental rights   Madras High Court   Indian constitution   Article 21   Judge N Anand Venkatesh   Union of India   Supreme Court  
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