V SELVAKUMAR Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE two petitioners have separately moved this Court for a writ of mandamus seeking interference by this Court in the matter of any detention order they may be made against them by the respondents in the respective petitions under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as the "Act").

(2.) THAT such a pre-detention petition is maintainable is no longer in doubt. Art.226(1) of the Constitution of India like Art.32 which empowers the Supreme Court with respect to the enforcement of fundamental rights, empowers the High Courts throughout the territories in relation to which they exercise their respective jurisdiction to issue to any person or authority, including in appropriate cases, any government within these territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. It also empowers the High Courts to make interim orders, whether by way of injunction or stay or in any other manner in such a proceeding. Arts.21 and 22 which fall in Part HI of the Constitution provide for protection of life and personal liberty. They also provide that no person shall be deprived of his life or personal liberty except according to procedure established by law.

(3.) THUS, while it is well settled that there can be a pre-detention writ to restrain the detaining authorities in cases of any threatened potential violation of the right under Art.21 of the Constitution of India, the question invariably in every case will be as to what precisely is the alleged threat or imminence of violation. The Supreme Court has clarified and said that law surely cannot take action for internal thoughts but can act only after overt acts. THUS, if it is seen that overt acts towards violation have already been done, and respondents when called upon to show cause failed to demonstrate that they have not resorted to any overt act but have acted strictly in accordance with law, the Court may issue necessary order/direction to restrain, otherwise not. THUS, fortified by the law when we look to the case of V.Selvakumar, petitioner in W.P.No.9383 of 1988, we came to the conclusion that this Court should interfere. But on an examination of the facts of the case of Varadarajan, petitioner in W.P.No. 11006 of 1989, we find that any interference pre-detention is not warranted. We may here take stock of the facts of the two cases.