Tamil Nadu, the state with the most preventive detentions, is using laws that allow for detention without charge or trial to “control crime and dissent” instead of an exigency measure, while the Madras High Court fails to provide timely relief to those detained, according to three studies.
These studies are an overview of the laws of detention, an in-depth look at the Tamil Nadu Goondas Act, 1982, and the Madras High Court’s delays in disposing of habeas corpus petitions—funded by the Florida-based Thakur Foundation.
Preventive detention laws have existed since colonial rule and India’s independence in 1947. After the Defence of India Act, 1939, passed following the outbreak of the Second World War, came the Preventive Detention Act, 1950, passed a month after the adoption of the Constitution and repeatedly extended till 1969, the Maintenance of Internal Security Act, 1971 and the National Security Act, 1980.
Today, there are 25 state and federal laws on preventive detention in India.
What makes these repressive laws even more egregious is that all central preventive detention (PD) legislations and 12 out of 17 state legislations have been enacted after an ordinance, Neha Singhal, a senior resident fellow at Vidhi Center for Legal Policy, noted in her June 2021 report Scoping Study on Preventive Detention Laws.
Citing Shubhankar Dam’s Presidential Legislation in India: The Law and Practice of Ordinances, Singhal writes, “Ordinances, once promulgated, have the effect of tying Parliament’s hand. This repeated reliance on ordinances to enact PD measures can best describe creating legislation by cheating democracy.”
In Tamil Nadu, a series of amendments to the state Goondas Act has given it the title “Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber Law Offenders, Drug offenders, Forest offenders, Goondas, Immoral Traffic Offenders, Sand-offenders, Sexual Offenders, Slum-grabbers and Video Pirates Act, 1982.”
An analysis by Chennai-based advocate Akila R S of the prisons statistics report published annually by the National Crime Records Bureau, and the Crime Review, published annually by the Tamil Nadu State Crime Records Bureau, showed that Tamil Nadu has the highest number of preventive detentions in India despite relatively low levels of public order disturbances.
Governments in Tamil Nadu have been run by either the Dravida Munnetra Kazhagam (DMK) or the All India Anna Dravida Munnetra Kazhagam (AIADMK).
A large number of detenus in Tamil Nadu from 2016 to 2020 were around 18-50 years, illiterate or had less than a high school education and belonged to a backward caste.
Detention under the Goondas Act contributed to 84.2% of all preventive detentions in 2020 and 89.5% in 2019 in Tamil Nadu.
Data analysis from 2009 to October 2020 showed that the Act is predominantly used in cities. Seven urban districts account for over 40% of all detentions under the Act, with the highest in Chennai.
Women account for around 2-4% of preventive detentions under the Act for bootlegging, drug offences, immoral trafficking and as “goonda” for law and order offences from 2009 to 2020 (up to October).
Akila’s report on the TN Goondas Act— Report on Preventive Detentions under the Tamil Nadu Prevention Of Dangerous Activities Of Bootleggers, Cyber Law Offenders, Drug Offenders, Forest-Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual Offenders, Slum-Grabbers And Video Pirates Act, 1982 —was completed in January 2022.
A third report finding “worrying” delays in the disposal of habeas corpus petitions by the Madras High Court, completed by New Delhi-based advocate Shrutanjaya Bharadwaj in September 2022, said 95% of preventive detention cases invoked the Goonda Act, followed by the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act (PBMMSECA), 1980, Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974, National Security Act (NSA), 1980, and Puducherry Prevention of Anti-Social Activities Act (PoASAA), 2008.
The Goonda Act allows preventive detention for 12 months, PBMMSECA for six months, COFEPOSA for one or two years, NSA for 12 months, and PoASAA for one year.
In the past 22 years, as per the report— Empirical study: Delay at the Madras High Court in Preventive Detention Cases—the Madras High Court has adjudicated the highest number of appeals against preventive detention cases, dismissing 87.9% of them.
The average time a detenu spent in detention by the time the High Court decided their petition was 181 days or six months—half the maximum period of detention.
‘Substitute For Conviction & Punishment’
As early as 1965, preventive detention was criticised for being used as a substitution for ordinary law, used against criminals whose conviction was difficult to obtain in regular criminal courts, said Singhal’s report.
Under the TN Goonda Act, acting in a manner which affects or is likely to affect the “maintenance of public order adversely” is a condition for detaining a person under the Act; when the category of persons in the title of the Act “ directly or indirectly, is causing or calculate to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof or a grave or widespread danger to life or public health or ecological system.”
Akila’s report, based on analysing 4,872 habeas corpus cases, finds the TN Goonda Act “is not used for preventing public disorder but for circumventing procedural guarantees that exist in the Criminal Procedure Code and other laws.”
“Most commonly, persons are booked under the Act when the police are not convinced that they can file a final report and prosecute a person successfully.
The detention period of one year under the Act becomes a substitute for conviction and punishment. It is also invoked to defeat bail applications that may be filed by the accused and to extend the period of custody during a criminal investigation,” it said.
‘Worrying Delay’ By The Madras High Court
In the study on the disposal of habeas corpus petitions by the Madras High Court, Bharadwaj and his team of researchers typed “habeas corpus” with “detention and detained” into the SCC online, an online research tool. From the 14,500 results they received from 2000 to 2022 (January), 8,500 pertained to the Madras High Court, including 7,448 preventive detention judgments.
To calculate the time taken by the High Court in disposing of habeas corpus petitions, researchers looked at two things: the number of days spent from the date of filing the habeas corpus petition in the court to the date on which it was disposed of, and the actual period spent by the detenu in preventive detention before the court disposes of the habeas corpus petition.
Given that detaining authority must compulsorily release the detenu after the expiry of the maximum period, the report points out the “court must swiftly decide the petition challenging the detention.”
“The court’s performance on this count has been dismaying,” it says.
From the date of filing the petition, the court took 141 days (a little less than five months) to decide a habeas corpus petition from the date of filing the petition including in the 6,547 (87.9% of 7,462) “successful” cases (where the detention was set aside).
The year-wise average ranges from 86 days (lowest) to 184 days, i.e. a little over six months (highest).
The report said the average time a detenu spent in detention by the time the petition was decided, was 181 days (six months), half of the maximum detention period in most laws (one year) while pleading his case in court.
The year-wise averages range from 122 days, i.e. a little more than four months (lowest), to 274 days, i.e. a little less than nine months (highest).
“This delay is worrying by itself, but its real impact on personal liberty is better understood by studying only the ‘successful’ cases, i.e., cases where the court allowed the petition by quashing the detention order because the delay in those cases has, in fact, resulted in continued deprivation of the detenu’s personal liberty without lawful justification,” the report said.
In the 6,547 “successful” cases where the court set aside the detention, the court took 141 days (a little less than five months) to decide a case. A detenu spent 182 days (a little over six months) in illegal detention before the court issued the writ of habeas corpus—awarding no compensation for gross violation of personal liberty.
The year-wise average ranges from 123 days (a little over four months) to 267 days (a little less than nine months).
“It deserves re-emphasis that the maximum period of detention under most laws is one year. Seen in this light, it is almost a mere lip service to allow a habeas corpus petition after the detenu has already undergone nine months of illegal detention,” the report said.
Supreme Court’s ‘Dismaying’ Record
A research paper on habeas corpus judgements decided by the Supreme Court from 2000 to 2019, authored by Bhardwaj and published in the West Bengal National University of Juridical Sciences (NUJS) law review in 2020, found that on average it took 953 days from the date of detention to the date of final disposal, 528 days for the Supreme Court to dispose of habeas corpus petitions, and 344 days in actual detention till the Supreme Court disposed of the petition, of which the Supreme Court was seized of the matter for 111 days.
“Since preventive detention laws permit the government to detain persons for a maximum period of one year, the delay in part of the Supreme Court is dismaying,” wrote Bharadwaj.
In 20 cases where the Supreme Court was the first relief granting court, Bharadwaj found the detenu in four cases had already spent one year in preventive detention, five cases where almost one year had passed, 16, including the ones mentioned above, where more than six months had passed.
Infructuous & Revoked Cases
Bharadwaj and his researchers found 30 “infructuous” cases in the 22 years where the detention period expired before the court disposed of the detenus petition. On average, these cases were disposed of in 368 days (i.e. more than one year) per case after the date of the detention order.
“Though only a minority of detenus had the misfortune of going through the entire period of detention without redressal, these figures require urgent self-correction on the court’s part to ensure that no detenu faces a similar plight in future,” the report said.
The Tamil Nadu government revoked 772 or 10% of cases a few weeks or months after issuance, which, the report said, “frustrates the judicial process by rendering the habeas corpus petition infructuous before the court can pronounce a judgment. In turn, this allows the government to get away with potentially illegal detentions without accountability”.
In 662 cases where the revocation date was available, the average time spent in illegal detention—calculated from the date of detention order toll date of the revocation order—was 116 days, i.e. nearly four months.
“This record, the couple with the court’s nonchalant disposal of the petition without taking any action against the erring officials is particularly worrying as it leaves open a wide door of unaccounted abuse by the executive,” the report said.
On average, 136 days (4.5 months) had lapsed before the court disposed of the petition as infructuous.
“This is relevant in determining judicial alacrity because the court presumably had no knowledge of the revocation prior to the date on which the petition was eventually disposed of, citing the revocation (otherwise, the petition would have been disposed of on an earlier date).”
Noting that “these figures demand immediate course correction,” the report recommended fast-tacking habeas corpus petitions, setting up short timelines for completing pleadings, a self-monitoring mechanism to keep a check on delays, compensation in cases of illegal detention, and identifying mechanisms to deter state authorities from abusing these extraordinary powers.
“While fixing the schedule for hearing of the petition, the court must be cognizant of the period already spent by the detenu-petitioner in preventive detention,” Bharadwaj’s report said.
Technical Reasons For Quashing Detention
Based on an analysis of 4,872 habeas corpus cases filed against the TN Goonda Act, Akila’s report said that the Madras High Court “has developed a strict adherence to procedural aspects of detention”.
Detention orders are quashed, and detenus are set free because of procedural defects such as delay in considering representation, non-production of relevant documents, providing an illegible copy of documents, not providing translating documents, etcetera, the report said.
In the case of 23-year-old Valarmathi, cited in the report, an environmental activist who distributed pamphlets against a hydrocarbon project in the Kaveri delta, a detention order passed on 17 July 2017 was quashed on 5 September 2017 because there was no intimation of her arrest to her friends or family. There was a five-day delay by the government in considering the representation made by the detenu.
“It missed a valuable opportunity to delve into abuse of preventive detention laws for political reasons,” the report said.
Detention After Original Order
All laws empower detaining authorities to issue fresh detention orders after the revocation or expiry of the original detention order, usually, when new facts have arisen, Singhal’s report on the overview of preventive detention laws noted.
The Jammu and Kashmir Public Safety Act, 1978, allows for another detention order if the original order’s continuance is not legal or if it has been revoked due to apprehension of a challenge on technical defects. This provision, the report said, “gives authorities limitless power to pass repeated orders, each time resetting the maximum period possible for PD, which could potentially result in an individual staying in custody indefinitely”.
The Tamil Nadu acts, the report said, allow orders to be passed without new facts, but such orders cannot exist for more than two months after the original order.
Advisory Board
Article 22 of the Constitution, Akila’s report on the TN Goondas Act noted, relaxes crucial procedural safeguards, such as the right to be defended by a legal practitioner of one’s choice and that no person can be detained for more than 24 hours without being produced before a judicial magistrate, in cases of preventive detention. Article 22(4) replaces judicial review of detentions with limited scrutiny of an advisory board.
Advisory boards are required to have three members.
Some states, such as Andhra Pradesh, Maharashtra, Odisha and Tamil Nadu, allow for all three members who have been judges of high courts or who are qualified to be a high court judge (this could include potentially include advocates who have practised for ten years in a high court) to be members of the AB, Singhal’s report noted.
Other states, such as Bihar, Gujarat, Himachal Pradesh, Jharkhand, and Meghalaya follow the NSA model, where the chairman has to be an acting or retired judge of the high court.
Some states have put in additional requirements, like all three members of the board to be appointed by the government in consultation with the Chief Justice of the high court.
Under the TN Goondas Act, every detention order should be referred to the advisory board within three weeks of the date of detention.
While grounds and material relied on by the detaining authority are provided to the detenu, this material under section 8(2) can be withheld if considered by the detaining authority to be against the public interest.
While the state is represented by the police during the proceedings, under section 11(5), the detenu is not entitled to be represented by a legal practitioner in the inquiry/proceeding before the advisory board.
There is no right to a personal hearing before the advisory board; it is only provided if the detenu makes an express written request to Secretary/State authority, the report said.
The grounds of detention state that no advocate, even in the capacity of a friend/relative, can be present during the personal hearings before the Advisory Board, the report said.
“Such an interpretation is entirely unwarranted and unfairly prejudicial to the detenu,” it said.
In AK Roy vs Union of India (1982), the Supreme Court held that though there is no fundamental right to consult a legal practitioner in preventive detention by virtue of Article 22, it is “necessary for the procedure prescribed by law for proceedings before the Advisory Board must be fair, just and reasonable.”
In the State of AP vs Balajangam Subbarajamma (1985), the Supreme Court held that there should be equal treatment by the advisory board in considering rival representations of the detenu and the state.
Where high-ranking officials represented the state, an opportunity should have been provided for the detenu to be represented “though not by a lawyer, at least by someone equally competent those who appeared for the state.”
As per data received from Right to Information queries, Akila’s report said there is no fixed tenure for the advisory board in Tamil Nadu, it has been reconstituted periodically with only retired judges as members, and only a handful of them have been appointed and re-appointed as members since 2006.
“The advisory board under the TN Goondas Act has not formulated any standard procedural rules which are made available to the public or the detenus,” the report said. “No review of the functioning of the advisory board has been carried out by the state.”
(Betwa Sharma is managing editor of Article 14.)