“Cancel Bail, Don’t Detain” – Supreme Court Directs States to Exhaust Ordinary Criminal Remedies before Invoking Preventive Detention
Commentary on Dhanya M v. State of Kerala (2025 INSC 809)

1. Introduction

Dhanya M v. State of Kerala arose from a preventive detention order passed against Rajesh, a registered moneylender in Palakkad, Kerala, branded a “notorious goonda” under the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAA(P)A). Four criminal cases—largely relating to money-lending violations and an assault—were cited to justify detention. Although the detenu was already on court-ordered bail in each case, the District Magistrate issued a detention order under s.3 of the Act. The Kerala High Court upheld the detention. Rajesh’s wife, Dhanya, appealed to the Supreme Court, challenging the legality of the order and seeking restoration of liberty.

2. Summary of the Judgment

The Supreme Court (Sanjay Karol J., with Manmohan J. concurring) allowed the appeal and quashed both the detention order (20 June 2024) and the High Court’s judgment (4 Sept 2024). The Court ruled that:

• Preventive detention is an extraordinary measure and cannot substitute ordinary criminal processes such as seeking cancellation of bail.
• For detention under the KAA(P)A, the State must demonstrate activities “harmful to the maintenance of public order”, not merely violations affecting a few individuals (“law & order”).
• The detaining authority failed to record how the detenu’s conduct imperilled public order or why lesser measures were inadequate.
• The State’s assertion that bail conditions were violated was unsubstantiated; no application for cancellation of bail had been filed in any of the pending criminal cases.

3. Analysis

3.1 Precedents Cited and Their Influence

• Rekha v. State of Tamil Nadu

Established that preventive detention is an exception to Article 21 and must be invoked sparingly. The present Court re-emphasised this principle to frame detention as a measure of last resort.

• Mortuza Hussain Choudhary v. State of Nagaland (2025)

Reiterated the “draconian” nature of preventive detention and the strict constitutional safeguards that accompany it. The Court paraphrased this decision in its opening discussion to stress procedural rigour.

• Icchhu Devi v. Union of India

Placed the burden of justification squarely on the detaining authority. This shifted the evidentiary onus away from the detenue in the present case.

• Banka Sneha Sheela & Mallada K. Sri Ram

Clarified the law-and-order vs public-order dichotomy under preventive detention statutes. The Court adopted the same template to test whether Rajesh’s alleged conduct was of public-order magnitude.

• SK Nazneen; Nenavath Bujji

Both Telangana “Goonda Act” cases where detention orders were struck down for mistaking bail situations for preventive-detention scenarios. They formed the backbone for the Court’s observation that the State should pursue bail cancellation first.

• Ameena Begum

Warned against “circumvention of ordinary criminal procedure” by using preventive detention. Echoed verbatim in para 21.

• Vijay Narain Singh

Described preventive detention law as “hard law” and cautioned against its misuse where bail exists. This historical citation helped cement the current ruling in longstanding precedent.

3.2 Court’s Legal Reasoning

1. Constitutional Framework: Article 22(3)(b) approves preventive detention but Articles 21 & 22(5) impose stringent safeguards. An “extraordinary power” requires meticulous justification.
2. Statutory Scheme of KAA(P)A: The Act targets ‘known goondas’ engaged in activities “harmful to public order” (s.2(j), 2(o)). Section 3 permits detention only to prevent further anti-social acts threatening public order.
3. Public Order vs Law & Order: Drawing on Ram Manohar Lohia and subsequent cases, the Court underscored that public-order disturbance must transcend private disputes and disrupt “the even tempo of society”. The detenu’s acts largely concerned alleged usury and a single assault—insufficient to meet the higher threshold.
4. Alternative Remedies Exist: Since Rajesh was already on bail, the State’s proper recourse was to apply for bail cancellation. Preventive detention must not become a “shortcut” to negate a judicial bail order.
5. Procedural Deficiencies: The detention order lacked specific reasons, dates, or material showing how the detenu violated bail or threatened public order. Absent such particulars, the constitutional mandate of “earliest opportunity to make a representation” (Art 22(5); s.7 KAA(P)A) was breached.
6. Proportionality & Six-Month Cap: The Court noted that although Rajesh had already been released on 10 Dec 2024 (completion of maximum six-month detention), the question of legality remained alive to ensure future compliance and clarify the law.

3.3 Likely Impact of the Decision

• Kerala-specific: District Magistrates must now record concrete material showing imminent threat to public order and explain why cancellation-of-bail proceedings are inadequate. Mere labelling as “notorious goonda” is insufficient.
• National: The reasoning is not limited to the Kerala statute; it will influence similar “Goonda Acts” (Tamil Nadu, Telangana, Karnataka, etc.) that often face challenges for overbreadth.
• Judicial Scrutiny Elevated: High Courts exercising habeas corpus jurisdiction must scrutinise whether the detaining authority considered—yet rejected—ordinary criminal-law measures before opting for detention.
• Administrative Discipline: Police and executive authorities are incentivised to gather stronger evidence for bail-cancellation motions rather than rely on preventive detention to neutralise accused persons.
• Human-Rights Discourse: The judgment strengthens the liberty narrative under Article 21 by emphasising proportionality and the exceptional nature of preventive detention.

4. Complex Concepts Simplified

• Preventive Detention – Confinement of a person without trial before an alleged future offence, aimed at preventing anticipated danger. Unlike regular imprisonment, it is based on suspicion, not conviction.
• Detaining Authority – The government officer (here, District Magistrate) empowered by statute to issue detention orders.
• Public Order vs Law & Order – “Law & order” covers individual or localised offences; “public order” concerns acts that disturb society at large, causing widespread fear or disorder.
• Cancellation of Bail – A court process where the State alleges breach of bail conditions; if found, the accused is re-arrested. This is an ordinary criminal-law remedy, unlike preventive detention.
• Known Goonda (s.2(o) KAA(P)A) – An individual already found guilty or investigated in two separate instances for specified anti-social activities.

5. Conclusion

Dhanya M v. State of Kerala fortifies the constitutional firewall around personal liberty by clarifying that preventive detention under the Kerala Anti-Social Activities (Prevention) Act cannot be wielded as a surrogate for bail cancellation. The Supreme Court’s insistence on demonstrating a genuine threat to public order and on exhausting ordinary criminal remedies first sets a robust precedent against executive overreach. Future detention orders that fail to distinguish public-order disruptions from mere law-and-order issues, or that bypass available bail-cancellation mechanisms, are now liable to be struck down. In essence, the message is clear: **exceptional powers demand exceptional justification.**