To counter the frivolous use of preventive detention laws by the governments of these two states, a proactive approach by the judiciary is paramount.
Representative image. Photo: Tum Hufner/Unsplash
Recently, while overturning a Telangana high court judgement affirming a preventive detention order, Supreme Court judge Justice R.F. Nariman opined that the Telangana Prevention of Dangerous Activities Act (TDA), 1986 is a “draconian law clearly against the liberty of persons. It is surprising that no one has challenged the validity of the law.” This was not the first time that a higher court has made such comments.
In the past three years, while Telangana detained around 500 citizens every year under the law, Andhra Pradesh detained less than 30 per year. Telangana adopted, amended and expanded the Andhra Pradesh Prevention of Dangerous Activities Act, 1986 to make the TDA.
Both states invoke these laws against citizens in order to escape the burden of prosecution on the basis of evidence and valid grounds. As a result, the only option detenus are left with is to approach the high courts for relief.
An attempt has been made to examine around 70 judgments of the Andhra Pradesh and Telangana high courts on preventive detention orders for 2019, 2020 and 2021. In these three years, they have upheld only 25 of the 70 cases challenging the detention orders. Yet, there are wide variations in their responses to these detentions.
In a recent case, one Akshinthala was deemed a goonda under the Act and detained for four instances of theft. The Telangana high court quashed the order, opining that “when there is a specific statute to deal with the offences alleged to have been committed by the detenu, invoking the ‘draconian’ law of detention is unwarranted”.
However, in another case, one Touphik’s detention as a “white collar offender” for putting up false advertisements for the sale of automobiles was upheld. The court upheld this order stating that such white-collar crimes have an adverse effect on the economy and are detrimental to “public order”.
This is in contrast with the case of Ram Singh who allegedly ran a chit fund scam and collected Rs 3,000 crore from 60 lakh people. The Telangana high court quashed Singh’s detention order, saying that while the offence committed was grave, “public order” was not affected.
The lack of consistency in the approach of the courts towards these arbitrary detentions is a serious concern.
Despite all this, there seems to be no stopping the detaining authority from substituting ordinary laws with preventive detention laws. The reason behind this is that preventive detention laws invoke extraordinary procedures and supplant ordinary penal statutes.
The courts seem to be most willing to uphold detention orders in cases of sexual assault and narcotics, purportedly to protect the modesty of women and control the proliferation of drugs. While these are valid objectives, these offences are already comprehensively covered under ordinary laws. The statute books allow the police to choose between either prosecuting the accused under ordinary laws through the judiciary or through executive detentions and increasingly, they are opting for the latter, thus circumventing the due process of law.
We have observed a pattern in how these preventive detention laws are being invoked. One can see three spheres in which the Supreme Court guidelines in this regard are being circumvented: converting “law and order” offences into “public order” issues, invoking detentions to counter the accused’s right to bail and taking shelter in the “subjective satisfaction” of the detention law.
‘Public order’ versus ‘law and order’: authorities confused or callous?
The preventive detention laws allow for an individual to be detained in order to keep them from acting in a manner that is “prejudicial to the maintenance of public order.” However, in many detention orders, individuals are detained in the interest of maintaining “public peace” and “law and order” rather than “public order.”
The difference between “law and order” and “public order” has been highlighted by the Supreme Court in a variety of cases. For example, the Court held in Arun Ghosh versus State of Bengal that the concept of public order had a much wider ambit than the concept of law and order.
While a law and order disturbance is less grave and has only a local significance, a disturbance of public order means a disturbance to society “to the extent of causing a general disturbance of public tranquillity.” It is the degree of the disturbance and its effect upon the lives of the community in a locality which determines whether said disturbance amounts only to a breach of law and order or a breach of public order. But the states have been deliberately detaining individuals on the flimsy grounds of disturbances of “public order” without establishing the actual public disturbance caused.
For example, Guduru Sanejeeva Rayudu was detained for “maintaining a gang” and “motivating innocent youths towards committing property and bodily offences.” While quashing the detention order, the Andhra Pradesh high court said that the detaining authority was unable to make up its mind as to whether the activities of the detenu affected “law and order” or “public order”; the detention order used these concepts interchangeably. It did not “reveal relevant and justifiable grounds for ordering the detention of the detenu in order to maintain public order,” the court said.
Bail can still mean jail
In 58 of the cases analysed, the detaining authorities argued one of the two things: first, that in spite of bail granted to the accused under ordinary penal laws, they should be detained to avoid further criminal activities; second, that even though the accused was denied bail under ordinary penal laws, the possibility of a successful bail application in the future entails a valid preventive detention order.
The high courts have upheld detention orders even when the accused have been granted conditional bail, like in the case of Banoth Lachu Bai versus State of Telangana in which just two cases of drug peddling were registered.
In drug cases, the courts have upheld the detention orders on the grounds that narcotics, while seeming like a law and order problem are in reality a public order problem which fuel “nefarious activities like prostitution and terrorism.” If the high courts are concurring with these executive orders, it means the lower judiciary is mindlessly granting bail without considering factors such as the gravity of the offence or the likelihood of the offence being committed again.
These orders have been passed even when, in other judgements of the same courts, judges have stated that if a reasonable apprehension exists of the accused committing another crime after receiving bail, the police could easily inform the courts of the same when deciding bail petitions.
Justice comes too little, too late
The detention laws allow detaining authorities to detain a person for a period not more than three months. However, governments have been routinely extending detentions up to one year on the basis of the opinions of advisory boards. In the majority of cases we analysed, detenus had already spent five to eight months in jail before their detention orders were quashed by the high courts.
The high courts of these two states also avoid imposing any costs on their governments for abusing the detention laws, despite a large percentage of them being quashed. This is unlike the Bombay and Calcutta high courts which often impose costs on the governments in detention cases.
For instance, the Bombay high court imposed a sum of Rs 10,000 on the state for the non-application of mind by the detaining authority in the case of Yuvraj Ramachandran Pawar versus Dr. Ramaswami while the Gujarat high court imposed a cost of Rs 1.5 lakh in the case of Visamanbhai D. Dhola versus State of Gujarat.
The Telangana and Andhra Pradesh high courts, while observing that preventive detention laws are being applied incorrectly, have only advised the governments to follow the Supreme Court’s guidelines while invoking detention laws. However, these guidelines have largely been ignored.
For instance, in the case of Daphne Gertrude Briggs, the Andhra Pradesh high court asked the government to “bring to the notice of the detaining authorities and the sponsoring authorities the law laid down by the Supreme Court in the Champion R. Sangma’s case and the consequences thereof.”
A combination of the factors highlighted above has encouraged the governments of these two states to keep using preventive detention laws to detain individuals for trumped up reasons and with impunity. This includes, for instance, using preventive detention laws against those who questioned the Andhra Pradesh government’s decision to have three capitals for the state.
Given the trends, unless the high courts take a more proactive approach in keeping the authorities in check with respect to the indiscriminate application of preventive detention laws, they are on the path of becoming ordinary laws, thus rendering the Criminal Procedure Code meaningless.
Rishabh Warrier and Harsh Jain are law students and Murali Karnam is a faculty member at NALSAR University of Law, Hyderabad.
SOURCE ; THE WIRE
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