Expressing concerns over the “gross misuse” of the Preventive Detention Act (also known as the Goondas Act), Tamil Nadu State Public Prosecutor Hasan Mohammed Jinnah has written to Director General of Police C Sylendra Babu directing him to apply the law only in cases where the “public order is adversely affected veraciously and unquestionably.”
The Public Prosecutor said that the powers under the Tamil Nadu [Prevention of Dangerous Activities of Bootleggers, cyber law offenders, drug offenders, forest offenders, goonda, immoral traffic offenders, sand offenders, sexual offenders, slum grabbers and video pirates] Act 14 of 1982 are “exceptional powers”, and the law should be invoked with prudence, else it would amount to violation of articles 21 and 22 of the Constitution, encroaching on the liberty and freedom of an individual.
The Preventive Detention Act empowers the 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.
Civil rights activists term the law ‘draconian’ because any accused booked under it can be sent to jail without the need to produce them before a Judicial Magistrate for a period of three months. These cases are also heard in a non-transparent manner. The detenu can only appeal for their release at the advisory board, and the recordings are kept confidential. No lawyer can be part of these hearings.
In his letter to the DGP, the PP cited the 2009 Madras High Court judgement of Irusammal vs State, which involved a bootlegger being booked under the stringent Act.
“The reason for detaining a person in these Acts interalia is to safeguard the security of the State or maintain public order. This alone justifies executive detention without trial. When persons are detained on this ground, the orders should be passed with extreme care and vigilance. But if orders are passed which beg to be quashed, then we may conclude that the authority is casual or careless. If so, even one hour of such detention is neither morally acceptable nor legally sustainable and may even justify the award of compensation,” the court had said.
The PP said that of late the detention orders passed in several cases by District Magistrates and District Collectors were set aside by the Madras High Court. He said that there is a need to distinguish “Public Order” from “Public Law and Order.”
He said that every breach of peace does not lead to public disorder. The accused can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order, the PP said, citing the Ram Manohar Lohia vs State judgement.
Making a case for the methodical application of the PD Act, the PP asked the DGP to direct the District Superintendents of Police to invoke the Act only in cases where the public order is adversely affected.
He further asked the DGP to consider and explain ways and means to check the actions of the DSPs before they invoke the PD Act.