Madras High Court| Preventive detention laws are being misused by State; Compensation can be imposed, if there is an infraction of Article 21 of Constitution

Madras High Court

Madras High Court: In two writ petitions filed to issue a writ of habeas corpus against the detention orders passed by the District Magistrate and quash the same and direct the respondents to produce the body or person of the detenus, the division bench of M.S. Ramesh and N. Anand Venkatesh held that the impugned detention orders suffer from infirmity and illegality, thus set aside the same, and directed the respondent to release the detenus and pay them compensation.

The Court examined the previous Prison Statistics India Report, and observed that Tamil Nadu has occupied an unenviable first place in detaining the maximum number of people under its preventive laws in the entire country, and said that the inferences drawn can be twofold, either the State is inching towards lawlessness or that the jurisdiction of suspicion has now become a convenient and potent weapon in the hands of the law enforcing agencies to indiscriminately detain people by a conscious abuse of its statutory powers.

The Court while examining the broad scheme of the Tamil Nadu 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 (‘the Act’) noted that an order for detention passed under Section 3(1) shall remain in force for a period not exceeding three months which, upon satisfaction of the State Government, may be extended by such period not exceeding three months at any point of time. Further, an Advisory Board may revoke or confirm the order of detention, and if the detention is confirmed, then it can be continued for a total period of twelve months from the date of detention.

The Court said that the Act has become the favourite hunting ground for the police and an instrument of convenience, whereby common criminals and undesirables are dealt with, on the sure knowledge that once a detention order is passed, such persons are bound to be jailed for at least 3-6 months, pending reference to the Advisory Board or a challenge before this Court by way of a habeas corpus petition.

The Court took note of Irusammal v. State of T.N., 2008 SCC OnLine Mad 659 and said that despite the directive that the sponsoring authorities and the detaining authorities should be sensitised on the decisions of this Court before passing orders of preventive detention, there are several cases where preventive detention is invoked against all, including those involved in civil disputes and petty cases.

The Court referred to V. Shantha v. State of Telangana, (2017) 14 SCC 577, wherein it was held that “to classify the detenu as a ‘goonda’ affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of preventive detention” and further noted that in Rekha v. State of T.N., (2011) 5 SCC 244, the Court pointed out that whenever an order under a preventive detention law is challenged, one of the questions the Court must ask in deciding its legality is, was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal.

The Court relied on MCD v. Uphaar Tragedy Victims Assn., (2011) 14 SCC 481 and said that callous indifference in passing detention orders coupled with total apathy towards the violation of the fundamental right guaranteed under Article 21 of the Constitution would clearly constitute a ‘constitutional tort’.

Further by placing reliance on Rudul Sah v. State of Bihar, (1983) 4 SCC 141 and D.K. Basu v. State of W.B., (1997) 1 SCC 416, the Court held that while quashing preventive detention orders, if the Court finds that the detention was wholly frivolous or was based on non-existent or irrelevant grounds, the consequence would be that the State should provide punitive damages to the detenu for depriving his liberty, without any lawful justification. Thus, compensation can be imposed in cases where the Court finds that there is an infraction of Article 21 of the Constitution.

The Court while dealing with the first writ of habeas corpus, wherein the husband of the petitioner was detained under Section 2(f) of the Act, 1982 for indulging in agitations opposing land acquisition.

The Court said that an act by itself, howsoever grave it is, cannot assume the character of affecting the public order, unless it has the potentiality of impacting society at large, and observed that it is sufficiently clear that the incident had taken place inside a closed room, and there is no material to show that this incident had such a great potential to disturb the tempo of life in the locality or disturb the general peace and tranquility or create a sense of alarm and insecurity in the locality, and even assuming that the allegations are true, it can only be construed to constitute individual offence by the detenu against a public officer.

The Court further said that the officials seem to be under the impression that if anyone questions them or indulges in raising a protest, the same can be shut down by invoking the Act of 1982. Such a mindset goes against the purpose of enacting the preventive detention laws and such casual invocation of these laws will directly result in the infraction of Article 21 of the Constitution.

The Court held that the impugned detention order suffers from infirmity and illegality, thus set aside the same, and directed the respondent to release the detenu and pay him compensation of Rs. 25000/-. for having violated his right guaranteed under Article 21 of the Constitution.

The Court while dealing with the second writ, wherein the son of the petitioner was detained for attacking the complainant and his parents for having been questioned for erecting a fence in the land belonging to the complainant.

The Court said that the act of the detenu was not a condonable act, and deserves maximum punishment, however, this act does not cause disturbance to the public order. Further, this act can be easily dealt by the available penal laws, and it was not necessary to invoke the Act of 1982 just because the detenu indulged in a horrendous act against the police official.

Further, the Court said that, it is a total non-application of mind on the part of the detaining authority for mechanically relying upon some order to conclude that a detenu will be released on bail, as the accused persons, who are similarly placed, being granted bail by the same Court or by a higher Court, cannot be a ground for the detaining authority to come to such a subjective satisfaction without there being any materials to substantiate the same. Thus, the Court set aside the said detention order and imposed a cost upon the State, as the detention was illegal.

[Sunitha v. Additional Chief Secretary to Government, 2022 SCC OnLine Mad 5278, decided on 14-11-2022]

Advocates who appeared in this case :

For Petitioner: Advocate Henri Tiphagne;

For Respondents: Additional Public Prosecutor A. Thiruvadi Kumar.

*Apoorva Goel, Editorial Assistant has reported this brief.

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