Earlier this month, the Supreme Court woke up to the fact (again) that states across India have laws on preventive detention of accused persons. The Supreme Court was hearing a case of a stock trader accused of duping five persons, and though the accused man was given bail in all the five cases, the Cyberabad police invoked the Prevention of Dangerous Activities Act and his detention continued — a clear case of abuse of power. Learning that Telangana had the authority to bypass the judiciary, the Supreme Court in strong terms called the Telangana Prevention of Dangerous Activities Act 1986, a “draconian law.” Wondering how such a law existed, the apex court said, “It is...clearly against the liberty of persons. It is surprising that no one has challenged the validity of the law.”
The Supreme Court’s comments are, however, surprising as the law on preventive detentions is not unique to Telangana — almost all states in India have a similar law. And this law has made detention absolutely legal and valid under the provisions of the Indian Constitution.
In the southern states for example, Tamil Nadu has the 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 — a law which it has used even against people who dissented against the state. Under this law, Thirumurugan Gandhi, the leader of the May 17 movement, and a second-year journalism student, Valarmathi, were detained. The allegation against Thirumurugan Gandhi was that he participated in an agitation against the government, for which he spent 53 days in prison. The allegation against Valarmathi was that she was distributing pamphlets against the hydrocarbon scheme in Neduvasal, for which she was jailed for 57 days.
Kerala has the Kerala Anti-Social Activities (Prevention) Act, 2007, which has been challenged too. The state of Andhra Pradesh has its Andhra Pradesh Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land-Grabbers Act, 1986. Karnataka introduced the Prevention of Dangerous Activities Of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum Grabbers And Video Or Audio Pirates Act in 1985. Video piracy was also included under this Act in 2014 through an amendment.
So why have these states introduced this law, especially when the Indian Penal Code has provisions to prosecute such offences?
The preventive detention empowers police to imprison a person merely on the apprehension that the accused may commit a crime in the future, without any actual offence being committed. The ambit of the PD Act is really broad, making grounds for even petty offenders to be imprisoned without any judicial intervention. The Telangana PD Act almost runs seven lines: “The Telangana Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986.”
Under the Act, the State can detain anyone who is accused of any of the above-mentioned crimes. Once an accused gets booked under the Act, the Superintendent of Police, who also acts as the District Magistrate, can send the person directly to the jail without the need to produce them before the Judicial Magistrate for a period of three months. Further, the detenu can only appeal for their release at the advisory board. The proceedings at the advisory board are opaque — as the recordings are kept confidential. No lawyers can be part of this hearing.
According to lawyers and human rights activists, the victims of such arbitrary detentions are mostly poor people. Those charged under this law allege that the police deliberately file multiple cases across different stations to invoke the PD Act, effectively nullifying the court’s bail orders. In many cases, the police even decide to impose the Act if the investigation process is slow and chargesheets are delayed, just to show an update in the probe and to prevent the accused from being released on default bail.
Most appeals for the release get rejected, as the advisory board member, who is a district judge, works as an executive member of the state, allege human rights activists. “The State appoints a lawyer with seven years of experience as a board member, and inevitably, they end up working as an executive member of the State,” says Gorepatti Madhava Rao, Telangana president of the Human Rights Forum. “In Telangana, even a pimp, who is merely a facilitator, is being booked under this Act. Most of the detenues are poor people who are forced into crime due to poverty,” he adds.
Lawyers who are studying the PD Act say that though Article 22 of the Constitution legally allows for preventive detention, it works against the spirit of the Constitution. And invariably, most states have fairly similar laws for the preventive detention of an accused.
If we take a closer look at the law, Article 22 of the Constitution guarantees protection against arrest and detention in certain cases. Under Clause 1 of Article 22: “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”
Clause 2 of Article 22 states, “Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.”
However, Clause 3 provides the exception. Clause 3 states that none of the rights mentioned in Clause 1 and 2 of the Article will apply for a person who “is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.” And predictably, states have taken advantage of this Clause.
Recently, the PD Act came under public scrutiny when the DMK-led Tamil Nadu government was found using the law against criminals, based on popular public opinion. In three cases that had caused public outrage, the Tamil Nadu police invoked PD Act. The accused persons were Kishore K Swamy, ‘toxic’ Madan and G Rajagopalan. Kishore is a supposed political commentator known for harassing women journalists and making provocative comments against people opposed to his ideology; Madan, a YouTuber, is accused of making abusive comments against women; and Rajagopalan, a school teacher, who was accused of sexually harassing female students in school.
When it comes to detaining people, Tamil Nadu has the worst record. As per the National Crime Records Bureau report of 2019, Tamil Nadu had the highest number of detenues (1,240) in the country followed by Gujarat (698) and Jammu & Kashmir (404). It is not surprising that Tamil Nadu has the maximum number, as it has incentivised such detentions, says retired judge Justice K Chandru from Tamil Nadu.
"In a city like Chennai, the Commissioner of Police has instituted a rolling shield to be given to an Inspector of Police, who has recommended the maximum number of detentions under the Goondas Act. Tamil Nadu has the highest rate of detention in India. In the year 2014, as per the NCRB data, out of 3237 total detenues (under various detention laws) Tamil Nadu accounts for 1892 including 37 women which is 58% of the total detenues," he told TNM.
According to Justice K Chandru, for the past 39 years thousands of poor people have been detained under this law. “Many cases filed challenging such detentions have become infructuous, thanks to the High court not hearing them within the one period of detention,” he says.
Akila RS, a senior lawyer working at the Madras High Court says, “The reason for which these cases often do not go to the Supreme Court is because of Article 22. The Constitution itself allows for some amount of preventive detention to exist. But nevertheless, it is definitely a draconian law since it is used to deprive people of their liberty.”
“The PD Act also bypasses the traditional criminal procedure. Using this, the state has been abusing the law. What is meant as an exceptional power for the police to detain people who are a threat to public order, has been used for individual cases of law and order. Public order is a serious threat compared to law and order. Individual incidents of violence or threat cannot affect public order, but yet the police are exploiting this law,” she adds.
Speaking about the non-transparency of the procedure, Akila says, “The entire process is opaque. That is why these cases frequently don’t go to the attention of the courts. A bail cannot be procured. The detention can be only quashed on technical grounds.”
What’s more worrying is that almost all states have extended the grounds for detention, including for cyber crimes and video piracy, to the PD Act.
“Does video piracy impact public order? Sometimes police are using the law as a parallel prosecution mechanism without having to do the actual work of convicting a person carrying the burden of proof,” Akila argues.
While Tamil Nadu was the first state to bring ‘video piracy’ under the PD Act in 2004 through an amendment, thereby expanding its scope and definition, the state of Maharashtra followed it and included those who pirate video or audio as ‘digital offenders’ through the legislation in 2009. The state of Karnataka followed suit in 2014.
And the most important question of whether the law is acting as a deterrence against crimes being committed remains a mystery, as there is no review on it, solely because these proceedings under the advisory board are non-transparent. However, a senior police official from Telangana claims that the “aggressive invocation” of the PD Act has led to a drastic fall in the crime rate in the state.
Responding to the case of ‘toxic’ Madan, Akila says that the police are undermining the existing criminal laws of outraging modesty of a woman and other charges in the Indian Penal Code. “Preventive Detention is not a punishment. Why isn’t the police punishing them under relevant criminal laws? Why are they going for a mechanism that unjustly detains people without a trial? The PD Act goes against fundamental rights and the spirit of the Constitution,” she observes.
“Apart from the Indian Constitution, no other democratic Constitution, including the Reich Germany Constitution, had a provision for preventive detention within the fundamental rights. While police mostly use this Act against habitual offenders, they also invoke this against civil rights activists merely based on apprehension. The PD Act is purely subjective in nature. There need not be actual grounds to apprehend or detain a person, but if a State presumes someone to be a terrorist or a Naxalite merely because the person said something in favour of Dalits or Adivasis, they can detain them,” says Bengaluru-based lawyer Sivamani.
While it is a welcome decision that the Supreme Court has rightly termed the PD Act a ‘draconian’ law which curtails personal liberty, these words are “only for public consumption and not real action,” says Justice Chandru.
“There is not even a single case in the Supreme Court where it has quashed the validity of the detention law, be it state or central. In India, for the last 92 years, right from 1939, we have had one or the other law providing for detention without a trial. The two grounds under which such detentions are challenged are: one, the government did not consider the representation sent by the detenu, or his relatives within a reasonable time, or two, the detaining authority did not apply his mind on all the relevant factors before signing the detention order,” he adds.
Pointing out the observation made by the Supreme Court as ‘ironic,’ he says that when the Tamil Nadu PD Act, also called the Goondas Act, was challenged in 1990, it was the Supreme Court which upheld the validity of the Act. In the case of Mrs T Devaki vs Government of Tamil Nadu & Ors [1990], challenging the law, the apex court had quashed the detention of R Thamaraikani but upheld the validity of the law.
Justice Chandru says he is disappointed that such a law exists, nonetheless under a fundamental right.
“These detentions will continue as long as India has the dubious distinction of having a fundamental right, under Article 22, permitting detention without trial, though with procedural guarantees,” the former judge says.