Tamil Nadu Govt Misusing Preventive Detention Laws, Will Order State To Pay Compensation Whenever Detention Is Found Frivolous: Madras High Court

We, therefore, hold 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 would be mulcted with punitive damages for depriving the liberty of the subject, without any lawful justification.

The division bench of Justice MS Ramesh and Justice Anand Venkatesh gave the ruling in two habeas corpus petitions filed by relatives of the detenues under 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 court, which decided to look into the data on use of preventive detention in the State, said that for a whole decade, the Tamil Nadu state has occupied an unenviable first place in detaining the maximum number of people under its preventive laws in the entire country.

"In 2021, the State accounted for 51.2% of all detentions in the country. The numbers appear to only rise with each passing year. 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 added that the gross abuse of preventive detention has reached Orwellian proportions in the state.

The court also noted that almost all of the cases end up being quashed or become infructuous and there was not a single case in the current year, at least before Madurai Bench, in which the court upheld the order of detention.

From the aforesaid statistics, it is clear that out of the 517 cases filed 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. In other words, there is not a single case, under the Goondas Act, in the current year before the Madurai Bench where the order of detention has been upheld.

The court held that such callous indifference towards the violation of fundamental rights guaranteed under Article 21 of the Constitution clearly constituted a "Constitutional Tort". It added that such detention orders, which are passed ignoring the law, only to be set aside, clearly shows the State's refusal to follow the law.

Ignoring the law, and passing detention orders that only beg to be set aside when challenged before this Court under Article 226 demonstrates a clear and wilful refusal of the State to follow the law. This is, therefore, a clear case of conscious abuse of statutory power. It must follow that an irrepressible urge to use preventive detention must be now be sternly dealt with by imposing punitive damages on the State.

In the two petitions, the court observed that there was nothing to show that the public order was affected or that their alleged actions affected the society at large. It quashed the detention orders and directed release of the detainees. 

The Act of 1882

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 Section 3(1) authorizes the State Government, on being satisfied with respect to any bootlegger or cyber law offender or drug-offender or forest offender or goonda, to authorise the detention of such persons with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.

Section 3(2) empowers the District Magistrate or the Commissioner of Police to authorize the detention of such persons. Orders of detention made under Section 3(2) are to remain in force for a period of twelve days unless, in the meantime, the same is approved by the State Government.

The court noted that the act had now become a hunting ground for the police to deal with common criminals and other undesirables.

..preventive detention has become an instrument of convenience whereby such elements 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 petition for habeas corpus.

The court observed that it has been dragged into a vicious cycle.

"... all the institutions must wake up to the reality and must cross the comfort zone. Many a times, an exercise which causes embarrassment to an institution, actually acts as the catalyst for evolution which results in improving the standards of criminal justice system. This Court hopes that the State and the Executive takes this order seriously, since this Court has indicated that in cases where the detention is found to be illegal, cost will be imposed against the State in each case." 

Case Title: Sunitha v. Additional Chief Secretary to Government and others

Citation: 2022 LiveLaw (Mad) 462

Case No: H.C.P(MD)Nos.1710 & 1206 of 2022

Counsel for the Petitioners: Mr.Henri Tiphagne, Mr.K.Dinesh

Counsel for the Respondents: Mr.A.Thiruvadi Kumar Additional Public Prosecutor

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