Preventive detention cannot be normalised - Hindustan Times
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Preventive detention cannot be normalised

Dec 12, 2022 08:41 PM IST

The Madras high court’s judgment, thus, strikes an important blow for individual freedom against State impunity. It reminds us that, for all our criticism of the courts, an independent judiciary is the surest bulwark against authoritarianism

newLast month, the Madras high court passed a very important judgment on the issue of preventive detention (i.e., detention without trial). Like many other states, successive governments of Tamil Nadu, over the years, have utilised preventive detention laws as alternatives to the criminal justice system and to keep certain troublesome people behind bars for possible future crimes, instead of taking the trouble to prosecute and punish them for something they have already done (central governments have also not been far behind on this). Unfortunately, barring a few exceptions, the courts have been exceedingly deferential to the State on matters of preventive detention, something that was particularly evident in the aftermath of the effective abrogation of Article 370 in Jammu & Kashmir, when habeas corpus petitions against detention went unheard for months.

It is crucial to remember that preventive detention is meant to be used only in the most exceptional of circumstances. As a general rule, we do not curtail the liberty of individuals for things that they might do in the future, but have not yet. (Getty Images/iStockphoto)
It is crucial to remember that preventive detention is meant to be used only in the most exceptional of circumstances. As a general rule, we do not curtail the liberty of individuals for things that they might do in the future, but have not yet. (Getty Images/iStockphoto)

In that context, the high court’s judgment in Sunitha vs State, delivered by a bench of justices MS Ramesh and N Anand Venkatesh, is a deeply welcome one. Considering two preventive detention cases before it, the court began by noting that, in its experience, the State was involved in the repeated abuse of the preventive detention law, illustrated by the number of cases that came before the court, and where hearings were delayed until the detention period was over, and the case became infructuous. The court did not stop at a simple eyeball test, though: It went through official statistics to find that Tamil Nadu had repeatedly topped the list of states using the preventive detention law (in this case, the Goondas Act), and that none of its detention orders had survived substantive judicial scrutiny (they had either been set aside or become infructuous).

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Thus, identifying what had essentially become an unconstitutional state of affairs, the court then held that a preventive detention order would be set aside unless the State could demonstrate that ordinary criminal law was insufficient to address the issue (or, in other words, demonstrate that preventive detention was necessary). It applied the standard rigorously to the cases before it: In the first case, for example, the allegation was that the detenu had abused a public servant. The court found, however, that even if true, the said abuse had taken place in a private dwelling, and, therefore, there was no question of undermining “public order” (a sine qua non to trigger preventive detention). The court, therefore, found that the State had failed to demonstrate that it could not deal with the case under ordinary criminal law, and set aside the preventive detention order. It did the same with the second case before it as well.

The high court’s analysis is extremely important. It is crucial to remember that preventive detention is meant to be used only in the most exceptional of circumstances. As a general rule, we do not curtail the liberty of individuals for things that they might do in the future, but have not yet. Preventive detention is only permissible when the threat is proximate, severe and unavoidable, i.e., when ordinary law simply isn’t adequate to deal with the issue. The court’s focus on that point – and its rigorous scrutiny of State action – is necessary to limit preventive detention to truly exceptional circumstances, and to avoid normalising it.

However, the court went even further. Noting the pattern of abuse and misuse spread out over the years, it held that there would need to be an adequate deterrent to check this abuse of power. This deterrent, it held, would take the form of compensation. Compensation for wrongful arrest, prosecution, and punishment is well-known the world over. The Indian courts have, however, been hesitant to enforce the principle, on the basis that it might “demoralise” the police force and investigative agencies. This, however, entirely subordinates the individual’s right to freedom to the imperatives of the State, and effectively sanctions State impunity: It makes wrongful and frivolous imprisonment costless. Thus, the high court’s stress that it would award compensation in cases where the State failed to show why ordinary law was insufficient to deal with an individual’s case, and why preventive detention was required. Somewhat disappointingly, the actual compensation the court awarded – 25,000 – was a paltry amount, and is unlikely to prove too much of a deterrent; however, the foundations, at least, were laid, and other cases can, in the future, take it forward.

The Madras high court’s judgment, thus, strikes an important blow for individual freedom against State impunity. It reminds us that, for all our criticism of the courts, an independent judiciary is the surest bulwark against authoritarianism.

Gautam Bhatia is a Delhi-based advocate.

The views expressed are personal.

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