Congratulations, Sonam Wangchuk, on the government’s revocation of the preventive detention order passed against you.Congratulations, Gitanjali Angmo, for contesting, against all odds, the habeas corpus petition filed by you in the Supreme Court for the release of Sonam Wangchuk. As they say, persistence sometimes pays. However, no congratulations yet to Sonam Wangchuk’s legal team because the battle for his freedom is not over. I say this for several reasons. An order of preventive detention can be passed by the detaining authority only by invoking a draconian law such as the National Security Act (NSA) or the Public Safety Act (PSA) or, as in the past, the Maintenance of Internal Security Act (MISA). Such draconian laws have been described as a necessary evil. Therefore, an order of preventive detention should never be passed because the detaining authority has the power to do so; it should only be passed for compelling and objective reasons to prevent a public order or national security situation arising in the more or less immediate future. Otherwise, a preventive detention order becomes not a misuse of power, but an abuse of power. If a draconian power is abused, consequences must follow to prevent recurrent abuse.‘Not punitive detention’An order of preventive detention is not passed for a crime committed, but for the prevention of a crime, hence the term “preventive detention” and not punitive detention. It is passed not because a person has committed an offence, however serious or grave it may be. This is because an offensive act can be punished under the law of the land; that’s what the rule of law is all about. It is passed to prevent a person from committing an act prejudicial to public order (not law and order) or national security. By definition, therefore, a preventive detention order is passed on a reasonable prognosis that a person is more than likely to create a situation by which public tranquillity or national security will probably be endangered, not that it has been endangered. The distinction is quite clear.Reports streaming in show the preventive detention of Sonam Wangchuk suffering from procedural lacunae. It is well settled law – through a series of judgments delivered by a Constitution Bench of the Supreme Court – that a preventively detained person has a fundamental constitutional right to make an effective representation against his detention and at the earliest. The word “effective” is crucial. To enable this, all information available with the detaining authority must be supplied to the detenu so that he can make an effective representation. If the entire material is not supplied to the detenu, the preventive detention order is liable to be immediately quashed for the violation of a fundamental constitutional right. From the material available in the public domain, it does appear that Wangchuk was not given the entire material placed before the detaining authority. That being so, he was disabled from making an effective representation. It must follow, therefore, that Wangchuk’s fundamental constitutional right to make an effective presentation was denied. The preventive detention order must be quashed on this ground alone and a writ of habeas corpus issued.The law also requires that after a representation is made by a detenu, it must be considered by the detaining authority with alacrity. Under the Constitution of India, unexplained delay in considering a representation by the detaining authority is fatal to the continued detention of the person. In fact, in some cases, the Supreme Court has gone to the extent of holding that even one day’s unexplained delay in considering a representation is fatal to continued detention. In Wangchuk’s case, the facts regarding consideration of the representation are not available in the public domain, so it is difficult to comment on this aspect of the case. ‘The path of least resistance’Did all or some of these factors persuade the detaining authority to revoke the preventive detention order? As at present advised, we will never know the truth, unless the Supreme Court delivers judgement in the petition filed by Gitanjali Angmo. From the submissions reportedly made by the detaining authority and the government in the Supreme Court, it does appear the preventive detention order cannot be sustained and the detaining authority is on shaky ground. It also appears the Supreme Court will, in the normal course, quash the preventive detention order and issue a writ of habeas corpus. Therefore, one can guess that the detaining authority and the government seem to have decided that rather than lose face, it is better to take the path of least resistance and revoke the draconian order and plead that the writ petition is now infructuous. The question is, should the government be allowed to get away with this and is an order of revocation the end of the story of harassment and soft torture? I don’t think so.Lets hark back to the days of the Emergency. The respected journalist Kuldeep Nayar was detained under the MISA soon after Emergency was imposed. His wife Bharti Nayar challenged the preventive detention order in the Delhi high court and sought a writ of habeas corpus. A Division Bench the Delhi high court consisting of Justice Rangarajan (a senior judge) and Justice R.N. Agarwal (an additional judge) heard the writ petition expeditiously, as it should have been. During the hearing, the detaining authority and the government sensed that the high court is likely to quash the preventive detention order. And so, lo and behold, the detention order under MISA was revoked and the judges were informed accordingly. It was suggested that the writ petition had become infructuous with the revocation. But guess what. The judges would have none of these theatrics. They decided the writ petition on merits in September 1975, quashed the detention order and issued a writ of habeas corpus and fully explained why they did not dismiss the writ petition as infructuous. Kuldeep Nayar was released after spending barely three months in detention. What about the courageous judges? Justice Rangarajan was transferred to Gauhati high court. Justice Agarwal was not made a permanent judge of the Delhi high court and was, therefore, reverted to his substantive post as a District Judge. For different reasons, Kuldeep Nayar’s brother-in-law Justice Rajinder Sacher was transferred from Delhi to the Sikkim high court. The government is playing a similar game with the same cards in the case of Sonam Wangchuk’s preventive detention. While there are obvious similarities with Kuldeep Nayar’s case, there are also some dissimilarities. Kuldeep Nayar spent about three months in detention while Wangchuk has spent about six months. Justice Rangarajan and Justice Agarwal were high court judges while Wangchuk’s case has been heard by Supreme Court judges. Justice Rangarajan could be and was transferred out of Delhi and Justice Agarwal could be and was reverted from the post of high court judge to the post of district judge. The judges of the Supreme Court can neither be transferred out of Delhi, nor can they be reverted. The government is stuck and must face judgment – the ball is in the Supreme Court. Please do no not dismiss the writ petition as infructuous, but tell us the truth.One final thought. Having realised the error of their ways, and now corrected it, should the detaining authority and the government be allowed to get away for ruining six months of the life of Sonam Wangchuk and Gitanjali Angmo? Shouldn’t they be adequately compensated at least in monetary terms? Shouldn’t there be some accountability of the powers that be? What can our constitutional courts do to ensure that draconian preventive detention laws are not abused by the executive? For too long, the executive has got away with preventively detaining persons for long periods even when there is no threat to public order or national security and for the flimsiest of reasons. How much longer should we wait? Surely, the position today is better than during the Emergency?Justice Madan B. Lokur is a former judge of the Supreme Court of India.