‘Mechanical’ preventive detentions stealing time of courts: Experts

CHENNAI: Invoking the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Ordinance, 1982 — widely known as the Goondas Act — has become the new normal in the State. A recent order of the Madurai Bench of Madras High Court has thrown light on how Tamil Nadu tops among states in passing preventive detention orders on the accused. Advocates and former judges assert that the mechanical way of passing detention orders under the Act is wasting court hours and is an infringement of Article 21 of the Constitution.

Disposing of a batch of habeas corpus petitions of kin of the detenus, a division bench of Justice MS Ramesh and Justice N Anand Venkatesh of the Madras HC’s Madurai Bench wrote that he can hold without fear of contradiction that at least 15-20 detention orders are set aside every day in the Principal seat as well as the Madurai Bench, not to mention the 10-15 fresh admissions. “In effect, we set aside 15-20 detention orders only to find 10-15 fresh cases being added to the list,” the judges emphasized about the passing of preventive detention orders.

According to Justice Venkatesh, who wrote the order, there is not a single case under the Goondas Act this year before the Madurai Bench where the detention order has been upheld. He further gave figures that show the appalling condition that prevails in TN as the State tops in the country in invoking preventive detentions since 2012. The trend never faded but grew as 1,775 orders under the Goondas Act were passed in 2021 itself.

The judge further highlighted the fact that about 517 cases under the Goondas Act have come before the Madurai Bench of Madras HC alone.

“It is clear that out of the 517 cases challenging the detention under the Goondas Act, the detention order was quashed in 445 cases (86%) and the remaining 14% were cases which had become infructuous on account of the detention period coming to an end or on account of the detenues being released on the orders of the Advisory Board,” the court noted.

After quashing the preventive detentions in a batch of cases, the judges gave out a warning call to the State and executive that in cases where the detention is found to be illegal, the cost will be imposed against the State in each case. The bench not just accused the state and executive saying, “If we are to find fault with the state and the executive, unwittingly this court has also been dragged into the vicious cycle and the above statistics reveal that by the time we take up the HCP case for final hearing, a minimum of six months’ detention gets over and thereafter, we complete the formality of invariably setting aside the detention orders.”

The bench stressed that all institutions must wake up to reality and must cross their comfort zone. Many times, an exercise that causes embarrassment to an institution, actually acts as the catalyst for evolution which results in improving the standards of the criminal justice system.

Former Justice K Chandru said, “the detention orders are stereotyped and mostly quashed on technical grounds.” He further added that since the poor are detained mostly, as they were unable to afford lawyers or thanks to the court’s delay, they will end up in jail for one year.

“It is mostly a cat-and-mouse game played by the police. The police commissioner has instituted a rolling trophy to be given annually to the inspector of police who recommends maximum Goondas Act detentions. Unfortunately, courts also play hide-and-seek games on it. While they have upheld the constitutional validity, they have quashed as many detentions as possible. It is high time Madras High Court, instead of doing pontification, quashes the most pernicious Act and saves thousands of poor people getting incarcerated at the hands of the police,” the retired judge told DT Next.

Speaking about the relief, Justice Chandru indicates that the only safeguard provided under this Act is the reasons that must be provided by the detaining authority, and an advisory board to consider the adequacy.

Justice Chandru recalled that the law of preventive detention is authorised by Article 22 of the Constitution and even at the time of enactment there was opposition to including it under the Fundamental Rights chapter. He also reminded me that the Act was justified in AK Gopalan’s case on narrow grounds.

Human rights activist and advocate, Henri Tiphagne, who argued before the Madurai bench in the above said cases stressed the necessity to dispose of the preventive detention cases.

“When my client was detained under the Goondas Act, we made representations to the state and Advisory Board, and the same was rejected without any proper grounds.

“If the police want a person to be in jail, they would invoke the Goondas Act against him. When we file a Habeas Corpus petition, it takes at least four months for a hearing. Therefore, a dedicated bench should be constituted to hear the HB petitions as Article 21 ensures the freedom of life,” he said.

Advocate Tiphagne further said the advisory board is roughly hearing around 2,000 Goondas Act cases. “However, we feel that the board is not considering the merit and grounds before rejecting the representations,” the lawyer noted.

Recalling one of his client’s cases, Tiphagne said his client Jeyaraman was a businessman and was detained under Goondas Act for the reason that he disturbed the public order. “Jeyaraman held a peaceful protest against land acquisition proceedings initiated for Tirumangalam–Rajapalayam–Senkottai National Highway. He observed a human chain holding the national flag in his hand. However, the police detained him under Goondas Act although he did not disturb the public order,” Tiphagne told DT Next.

“Article 19 ensures the freedom of peaceful protests and Article 21 ensures the Right to Life. However, Article 22 is allowing preventive detention. So, authorities or the advisory board should properly hear the representations to find whether someone had disturbed the public order?” the advocate opined. He noted that interventions should be allowed in HCP cases.

According to Tiphange, the advisory board had heard 2,662 Goondas Act representations in 2019, 2,800 in 2020, and 2,405 in 2021. The State spends Rs 40 lakh per annum for the advisory board and Rs 9,000 per sitting. There are about 157 sittings a year. Therefore, a proper hearing should be done by the advisory board and it should not reflect the views of the authorities.