Can a suspect seek the grounds of detention under RTI prior to arrest?
The Preventive Detention Act was passed by Parliament in 1950 and upon its expiry in 1969, it was replaced by the Maintenance of Internal Security Act (MISA) in 1971. Subsequently, the Conservation of Foreign Exchange and Prevention of Smuggling Act (COFEPOSA) came in 1974 and the TADA (Terrorism and Disruptive Activities (Prevention) Act was enacted in 1985. The MISA and TADA are no longer in existence and have been repealed. Many states have their own preventive detention laws. Unlike other laws which grant the power to the law enforcing authorities to arrest a person after his arrest, the Preventive detention is imposed by way of detaining a person in order to prevent him/ her from committing a crime, if that person is "deemed likely to commit" a crime.
Appearing before a three-judge bench comprising of Justice Altamas Kabir, Justice Gyan Sudha Mishra and Justice Chalameshwar, the Additional Solictor General P P Malhotra submitted on behalf of the Central Government that the provisions of the RTI Act, 2005 were not available to suspects as the legislation was subordinate to Article 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. of Constitution which provided for preventive arrest of a person. The ASG claimed that the Right to Information (RTI) Act was enacted to bring about transparency in the working of various departments of the Government and it has nothing to do with the detention orders.
As per the Article 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. (5) of the Constitution, a detenue is entitled to the grounds of detention only after his arrest and not prior thereto. As per COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling Act), the grounds of detention could be served on the detenue within 5 days after arrest and upto a maximum period of 15 days in exceptional cases. Earlier the Bombay High Court had passed a judgment in the matter which was being challenged before the Supreme Court. The hearing in the matter is in progress.
The RTI Act overrides any other law in existence but cannot prevail upon any constitutional provision as the constitution is supreme.