Preventive Detention Revisited: Reaffirming the Necessity of Real Bail Possibility and Communication in a Known Language

Introduction

The Supreme Court of India, in MORTUZA HUSSAIN CHOUDHURY v. THE STATE OF NAGALAND (2025 INSC 321), examined the legality and constitutional propriety of preventive detention orders issued against two individuals under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (“the Act of 1988”). The petition was filed by the brother of one of the detainees, challenging the orders on multiple constitutional and procedural grounds.

The dispute revolved around whether the authorities had validly complied with the requirements under the Act of 1988 and Article 22 of the Constitution of India, especially in circumstances where the detainees were already under judicial custody and did not understand the language in which their detention orders were served. The Court’s decision reaffirms critical principles and safeguards relating to preventive detention, including the need to establish a real possibility of bail for those already in custody and the necessity of communicating the grounds of detention in a language understood by the detainee.

The key parties involved in this case were the appellants—namely, Mr. Mortuza Hussain Choudhary, who represented the detainees (his brother, Mr. Ashraf Hussain Choudhary and Ms. Adaliu Chawang)—and the respondents, primarily the State of Nagaland and its Home Department.

Summary of the Judgment

The Supreme Court allowed the appeals by setting aside the Gauhati High Court’s dismissal of the detainees’ challenge to the preventive detention orders. The Court concluded that the authorities had failed to demonstrate a real likelihood of the detainees’ release on bail. Additionally, the detention orders and the supporting documents were not served in a language the detainees could understand. Hence, the statutory and constitutional conditions for preventive detention were deemed not to have been met.

In light of these findings, the Supreme Court quashed the detention orders issued against Mr. Ashraf Hussain Choudhary and Ms. Adaliu Chawang, directing that they be released from detention forthwith unless they were validly required to remain in custody in connection with any other case.

Analysis

1. Precedents Cited

The Court referred to a series of landmark decisions clarifying the conditions for a valid preventive detention when an individual is already in custody:

• Kamarunnissa vs. Union of India (1991) 1 SCC 128: The Court held that issuing orders for preventive detention against a person already in jail is permissible only if the detaining authority is aware of the ongoing incarceration and believes, based on credible information, that the person is likely to be released and would continue prejudicial activities upon release.
• Binod Singh v. District Magistrate, Dhanbad, Bihar (1986) 4 SCC 416: Emphasized the need for cogent material to form an opinion that the detainee is likely to be released on bail. This opinion should not be a mere assumption by the detaining authority.
• Rekha v. State of Tamil Nadu (2011) 5 SCC 244: A three-judge Bench reiterated that if no bail application is pending and there is no material showing imminent bail release, there is no real possibility that the detainee would be released. In the absence of such evidence, a preventive detention order cannot stand.
• Union of India v. Paul Manickam (2003) 8 SCC 342 and Union of India v. Dimple Happy Dhakad (2019) 20 SCC 609: Both decisions reaffirm that authorities must show an awareness of the likelihood of bail, backed by reliable material, to justify preventive detention for someone in judicial custody.
• Harikisan vs. State of Maharashtra (AIR 1962 SC 911): A Constitution Bench decision holding that serving detention orders in a language not comprehensible to the detainee violates Article 22(5) of the Constitution. Oral explanations by police officers are insufficient to cure the defect.

2. Legal Reasoning

The Court's legal reasoning predominantly hinges on two issues:

1. Real Possibility of Bail: The Supreme Court observed that both detainees, Ashraf Hussain Choudhary and Adaliu Chawang, were already in judicial custody when the detention orders under Section 3(1) of the Act of 1988 were passed. At that time, there was no pending bail application or evidence pointing to their imminent release. Drawing upon its own precedents—including Kamarunnissa and Rekha—the Court held that the detaining authority must demonstrate a real and imminent possibility of bail. Such a requirement was not satisfied here because the State's assertion that they might continue unlawful activities if released was mere ipse dixit rather than a reasoned conclusion.
2. Communication of Detention Grounds: The Supreme Court found that the detention orders and their accompanying documents were extensive and written in English, a language not understood by either detainee. Despite the authorities' claims that these documents were orally explained, the Constitution Bench ruling in Harikisan mandates that detainees must receive detention grounds in a language they can read and comprehend. The Court emphasized that oral or cursory translations are inadequate, particularly when the documents are bulky and meant to inform a detainee’s statutory right to challenge detentions effectively.

Furthermore, the Court noted that the Special Secretary, Home Department, relied upon the Investigating Officer’s proposals without independently articulating the grounds of detention required by Section 6 of the Act of 1988, thus showing a lack of application of mind.

3. Impact

This Judgment serves as a significant reaffirmation of the rigorous standards necessary for preventive detention under Indian law. Notable impacts include:

• Increased Safeguards for Detainees: Authorities must carefully justify the detention of individuals already in custody. They need to produce cogent evidence of likely bail release rather than relying on generic statements about potential prejudicial activities.
• Stricter Language Compliance: The Supreme Court’s reaffirmation underscores how essential it is for the detainee to personally and fully understand the grounds. This will compel government authorities to ensure that all supporting documents are served in a language comprehensible to the detainee.
• Guidance for Future Cases: Courts across the country are likely to follow this approach more rigorously, especially in verifying the “likelihood of bail” and the requirement of effective communication of grounds. The decision thus fortifies individual liberty and ensures strict constitutional compliance in matters relating to preventive detention.

Complex Concepts Simplified

1. Preventive Detention: Unlike regular imprisonment, which follows a conviction, preventive detention enables authorities to detain an individual without trial upon suspicion that the individual may engage in activities detrimental to public order or specific national interests. It is permitted by the Constitution (Article 22) but is subject to strict scrutiny.
2. Article 22(5) of the Constitution: A crucial constitutional safeguard requiring that anybody detained under preventive statutes be informed promptly of the grounds and given the earliest opportunity to challenge the detention.
3. Ipse Dixit: A Latin term meaning “an assertion without proof.” The Court used this term to criticize statements made by authorities that lacked evidentiary backing, such as claiming detainees would continue illicit activities upon release without any supporting factual material.
4. Default (Statutory) Bail: A type of bail granted when the prosecution fails to file a charge sheet or complete the investigation within the prescribed time limit. Although the detainees were granted this type of bail, they remained in custody solely because of the preventive detention orders.

Conclusion

The Supreme Court’s decision in MORTUZA HUSSAIN CHOUDHURY v. THE STATE OF NAGALAND reiterates the rigorous scrutiny to which preventive detention orders must be subjected. Plainly put, the authorities cannot take shortcuts: they must convincingly demonstrate a likelihood of bail if a detainee is already in custody, clearly express independent and reasoned grounds for detention, and serve the grounds of detention in a language the detainee understands. By quashing the impugned orders, the Supreme Court has underscored the principle that individual liberty, guaranteed by the Constitution, should not be compromised by mere administrative formalities or perfunctory assessments.

As a result, this Judgment stands as an important milestone, reminding law enforcement and the judiciary that preventive detention laws must be applied sparingly, carefully, and strictly in compliance with the Constitution.