Gujarat HC Provides Suggestions in the Amendment Act of Gujarat Prevention of Anti-Social Activities Act

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The Gujarat High Court has welcomed the step of the State Government to widen the scope of the Gujarat Prevention of Anti-social Activities Act, 1985. However, misuse of the provisions at the stage of execution was also taken into consideration. Therefore, the Court has reiterated the observations made in a past case to ensure more considerable public interest.

Brief Facts

The Gujarat Prevention of Anti-social Activities Act, 1985 provides for preventive detention of bootleggers, dangerous persons, drug offenders and immoral traffic offenders to prevent the anti-social and dangerous activities prejudicial to the maintenance of public order. Such persons can be detained on the satisfaction of the officials. Further, the State Government has decided to extend the provisions to cybercriminals, loan sharks and sexual offenders.

While deciding the present case under application of the said Act, the Court has commented on the State Government’s decision to extend the scope.

The suggestions were made by the Coram comprising Chief Justice Vikram Nath and Justice J. B. Pardiwala.

Court’s Observations

The Court has observed the shortcomings of the Act and suggested solutions to rectify the same. It was noted that ample of detentions under the said Act was challenged in the Court. However, the State was unable to defend, as most of them were issued casually. While exerting the powers of preventive detention, the State must be mindful of the terms ‘law and order’, ‘public order’ and ‘security of the State’. An act may affect law and order but not public order, just as an act may affect public order but not the security of the State. Therefore, the legislation must be careful in using these expressions.

Moreover, according to Section 3(2) of the said Act, the State Government may confer the power to the District Magistrate or a Commissioner of Police in whose jurisdiction anti-social activities prevail ‘or’ may prevail in future. Here, the Court has observed that the use of disjunctive ‘or’ without any specific period provides for a blanket delegation of powers. There has been no review of the delegation of power as the subordinates continue to issue orders for preventive detention according to the 1985 notification.

Further, the Court remarked that the State Government owes a duty to apply its mind while exerting powers under Section 3(3) of the said Act. The section provides for the power of confirmation or approval of the order of detention. It asserted- “The stage of approval should not be treated as an empty formality. The Government owes a duty to see whether the order of detention passed by the Detaining Authority is in accordance with the law, more particularly in conformity with the judicial pronouncements of the Supreme Court and the High Court of Gujarat.”

Therefore, the power of grant of approval cannot be exerted mechanically as it is an additional safeguard introduced by the statute. In view of the aforesaid circumstances, the legislature must ensure implementation of the same.

Relevance

Owing to the unprecedented situation, the Central and State Government has issued guidelines throughout the lockdown period. The executive has invoked provisions of several legislations to enforce the norms. It includes Section 144 of CrPC, the Epidemic Diseases Act, sections of the Indian Penal Code, etc. One of the widely invoked preventive measures has been the Prevention of Anti-social Activities Act. The Act permits preventive detention of a dangerous person on the subjective satisfaction of the police officials. Therefore, it becomes imperative to monitor and control any misuse of such provisions to ensure the principles of democracy.    


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