Preventive detention: The police State and the need to ‘police’ the State

A recent judgment of the Madras High Court brings into clear focus how the executive has failed its citizens and how the judiciary has, while expressing its anguish repeatedly, been unable to quash these detention orders in time due to the huge backlog of cases.

—–

What is the significance of the Madras High Court's recent decision in Sunitha versus Additional Chief Secretary to Government & Ors.?

THE judgment of the Madras High Court on November 14 in the case of Sunitha versus Additional Chief Secretary to Government & Ors. is of increased significance for two reasons. Firstly, it acknowledges the transformation of the welfare State into a police State that has scant regard for personal liberties of citizens, and believes in slapping preventive detention laws in a manner as to shock the conscience of the ordinary citizen; secondly, it admits the further manner in which the citizen is wronged by the courtroom delays that only seem to rub salt into injury instead of redressing it forthwith.

The judgment by a division bench consisting of Justices M.S.Ramesh and N. Anand Venkatesh is a hard hitting and compelling read for the facts, figures and factors spelt out therein, while propelling the legislature to revisit preventive detention laws, and the executive to introspect into its administration of the law.

Also read: Preventive Detention Laws in India: A tool for executive tyranny?

Why was a provision on preventive detention included in our Constitution?

The latter part of Article 22 (that deals with preventive detention) of the Constitution is clearly the odd man out in the chapter on Fundamental Rights, which is essentially a Charter of Rights and the most expansive one in the whole world. It also has the distinction of being one of the most hotly debated and contested Articles (Article 15-A of the Draft Constitution) of the Constitution in the Constituent Assembly on September 15 and 16, 1949, when tempers flew high and members expressed radical views, going so far as to argue whether preventive detention, which is anathematic to the idea of personal liberty, has any legitimate place in a Constitution like ours.

Its inclusion was vociferously opposed, and it was emphasised that no Constitution in the world has provisions on preventive detention. A reading of the Constituent Assembly Debates would indicate that Dr. B. R. Ambedkar, the Chairman of the Drafting Committee, was strongly in favour of including the provisions of preventive detention in the Constitution for two reasons:

1. The volatile situation prevailing then necessitated a preventive law in order to maintain peace and law and order, and it was thought that as a matter of abundant prescient caution, some provision contemplating preventive detention was essential to tackle disturbance to the maintenance of public order in the interest of defence and security of the State. In such extreme cases alone, sacrifice of individual personal liberty was necessary in the larger interest of the public and the State, it was posited.
2. After having included preventive detention in the interest of defence and security of the State as fields of legislation under Entry 9 of the Union List and Entry 3 of the Concurrent List of the Seventh Schedule of the Constitution, the provision on the limitations of legislative power ought to be made in the chapter dealing with the fundamental rights, with specific reference to liberty, it was argued.

The apprehensions and fears raised by the members of the Constituent Assembly that the preventive laws would be employed only for abuse against political opponents and for other extra-legal reasons, unfortunately came true in the very first case in which was invoked, in A.K. Gopalan versus State of Madras (1950).

To the existing notoriety of the preventive detention law and its consistent abuse, has been added the recent trend of the State applying preventive laws to cases that are highly undeserving of it, and for extraneous reasons that cannot stand legal scrutiny. This trend is seen glaringly in Tamil Nadu, which has the unenviable distinction of having the highest number of preventive detention cases in the last decade, closely followed by the states of Telangana and Gujarat, and the former state of Jammu and Kashmir.

Also read: Implement Provision to Stop Misuse of Preventive Detention, Say Former Civil Servants

What did the Madras High Court hold in Sunitha?

Sunitha is one such case where the Madras high court called it a textbook case of abuse of preventive laws in which the detenue was detained for protest against land acquisition. The high court has candidly admitted that a person detained under the detention laws in the state suffers incarceration for a minimum of six months as disposal of habeas corpus petitions take a minimum of that much time in the high court.

What is even more appalling is that the court has placed on record the fact that not a single case of preventive detention has been upheld in a whopping 798 number of cases under the Tamil Nadu Act 14 of 1982 (the preventive detention law in Tamil Nadu, popularly known as the T.N. Goondas Act, which covers sexual offenders, bootleggers, drug offenders, sand offenders, slum grabbers, video piracy offenders, cyber law offenders and immoral traffickers, among others) in 2022 alone, before the Madurai bench of the Madras high court. These figures speak for themselves and prod us to hang our heads in shame, given the lofty place that the fundamental right to life and liberty has been given in our Constitution, without which the Constitution would be an ornate body without the quintessential soul.

The judgment also brings into clear focus how the executive has failed its citizens and how the judiciary has, while expressing its anguish repeatedly, been unable to quash these detention orders in time due to the huge backlog of cases. The high court, while being alarmed and stating that the abuse of preventive laws has reached Orwellian proportions, has laid down good precedent by stating that costs and compensation should be awarded to citizens, payable by the State, in cases where the detention orders are quashed.

Why must interim bail be granted as an extension of the principle of restorative justice, in such cases?

In this context, as a reverse extension of the very same principle, courts may consider granting of interim bail in glaring cases of abuse of preventive laws. In exceptional cases, where the adverse case is much prior in time or where the ground case is not of a nature as to disturb the peace, law and order or the ordinary tempo of the life of society, courts must be liberal in granting interim bail at the initial stage itself.

In The Government of Tamil Nadu & Anr. versus S.Indramoorthy (2020), the high court has held in favour of severe restraint by courts in granting bail in habeas corpus cases. In light of the facts that have now come to light and the unpardonable state of affairs, this view of the court may have to be revisited and a more liberal consideration may be given to granting of interim bail in habeas corpus cases challenging preventive detention.

It is for the judiciary to watch out that the exceptional powers of preventive detention do not devolve into a draconian and arbitrary exercise of state authority, as stated by the Supreme Court in Mallada K Sri Ram versus State of Telangana & Ors. (2022).

Also read: SC quashes preventive detention based on stale material and non-application of mind

What are some other measures that the judiciary can adopt to prevent the misuse of preventive detention laws?

As a follow-up to this judgment, the following measures are suggested with the twin motive of bringing down cases in which preventive laws are slapped, and to effectively deal with cases in which these laws are invoked.

• Courts must lay down precise and stringent tests to be complied with by the State before preventive detention laws are invoked, such as:
• Concrete evidence must be present to meet the standard of adversely affecting the "maintenance of public order".
• A mere apprehension or surmise of breach of law and order is not sufficient.
• The adverse case must be of recent origin – perhaps less than three months prior to the date of detention.
• However grave the nature of allegations, detention laws cannot be invoked if the crime is capable of being dealt with in the ordinary course of criminal law.
• The subjective satisfaction of the authority should be such as to meet the ordinary standard of reasonableness and proportionality.
• Separate benches to deal only with habeas corpus cases challenging preventive detention cases to be constituted in the high court.
• Grant of interim bail in glaring cases of abuse of preventive detention laws.
• A strict time-frame for disposal of these cases to be put in place.
• Courts must impose costs on the State and order compensation for the citizens in every case where the detention order is quashed.

The guiding words of the Supreme Court in Hare Ram Pandey versus State of Bihar & Ors. (2003) that "[t]he law has to be justified by the genius of its administration so as to strike the right balance between individual liberty on the one hand and the needs of an orderly society on the other" must be borne in mind in order that preventive detention does not become the Frankenstein's monster of the Constitution.