Telangana’s law under scanner: How preventive detention works

A pre-trial detention is not the same as preventive detention. While the former is an undertrial accused of a crime, a detainee can be taken into custody just as a preventive measure even if he has not committed a crime.

In countries such as Britain, United States and Canada, preventive detention is a wartime measure. In India, the Constitution itself makes space for preventive detention. Part III of the Constitution, which deals with fundamental rights, also gives the state the power to suspend these rights for preventive detention. Despite its emphasis on individual liberty, Part III, which forms the basic structure of the Constitution that cannot be amended, also contains provisions for preventive detention under Article 22.

Under what laws can the state order preventive detention?

Among central legislations, the National Security Act, the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) are examples of laws under which preventive detention can be ordered.

As many as 25 states also have preventive detention legislations, like the Telangana law, which is called The Telangana Prevention of Dangerous Activities of BootLeggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, (PD Act), 1986.

These are expansive laws specifically addressed to local law and order issues. Other examples are the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Trafficking Offenders and Slum Grabbers Act, 1982; the Gujarat Prevention of Antisocial Activities Act, 1985; the Bihar Control of Crimes Act, 1981, etc.

What are the powers of the state?

Article 22 prescribes protection against arrest and detention but has a major exception. It says in Article 22 (3) (b) that none of those safeguards apply “to any person who is arrested or detained under any law providing for preventive detention.” The remaining clauses — Article 22(4)-(7) — deal with how preventive detention operationalises.

First, the state, which would be the district magistrate, would issue an order to detain a person when it is necessary to maintain “public order.” The state can delegate this power to the police as well.

If the detention ordered is for more than three months, under Article 22(4), such a detention requires the approval of an Advisory Board. These Boards are set up by states and normally consist of retired judges and bureaucrats. A detainee is generally not allowed legal representation before the Board. If the Board confirms the detention, the detainee can move Court challenging the detention order.

Article 22(5) of the Constitution mandates that the state is required “as soon as maybe,” to communicate to the detainee the grounds of detention and “shall afford him the earliest opportunity of making a representation against the order.”
A basic set of facts that are the grounds for detention are required to be communicated in one instalment, and the state cannot then add fresh, new or additional grounds to strengthen its original detention order. The grounds have to be read in a language that the detainee understands.

However, even this safeguard is diluted to a certain extent by Article 22(6), which says that nothing in clause 5 shall require the state to “disclose facts that the state considers to be “ against the public interest to disclose.”

How do courts assess the detention orders?

For preventive detention, there are very narrow grounds of judicial review because the Constitution emphasises the state’s “subjective satisfaction” when ordering a detention. The touchstone on which the order is examined is this subjective opinion of the state rather than the fundamental rights enshrined in the Constitution. When the Court cannot substitute the subjective satisfaction of the state with its own satisfaction, it essentially means that it cannot check the veracity of the facts mentioned in the grounds of detention.

A judicial review is limited to whether the Advisory Board applied its mind, considered all material facts and whether the state showed obvious malafide in ordering detention. Because judicial review is limited, courts often strike down detention orders on technical grounds, such as delay in the decision of the advisory board, communication of grounds in a timely fashion and in a language that the detainee understands, etc.