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Journalism of Courage
As the campaign for the November 30 election picks up steam in Telangana, there is one issue on which there’s hardly any traction: the manner in which the state applies its stringent preventive detention law to address law and order — and deny bail. So what if the Supreme Court has repeatedly red-flagged it, calling it “a callous exercise of exceptional power” and “a pernicious trend… in Telangana…”.
The name of the law itself is the first indication: 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.
So, it’s hardly a surprise that this law (PD Act) — amended in 2017 to add 13 new offences (five already existed) and a host of IPC provisions from cheating, theft, rape under its ambit, from selling spurious seeds to gaming — has been used against a sweeping range of citizens: from an Opposition MLA for allegedly provoking communal tensions to those accused of selling spurious seeds and even motorcycle theft. As per the 2021 Prison Statistics by the National Crime Records Bureau, Telangana ranks second among all states in the number of detainees in prison, behind Tamil Nadu. At the end of 2021, Telangana had as many as 396 detainees under this special law.
Among those detained under the PD Act for “inflammatory speeches”, in November last year, was BJP MLA T Raja Singh. He was released in three months when the High Court struck down the detention order on technical grounds, as “a translated copy of the grounds of detention was not provided to him”.
On Sunday, the BJP revoked Raja Singh’s suspension and refielded him from Goshamahal, which falls in the Hyderabad parliamentary constituency.
Preventive detention laws give powers to the police to arrest an individual to maintain “public order.” The detention orders are examined by an advisory board, also formed by the state. Crucially, a detainee is not allowed legal representation before the advisory board and the law under Section 8(2) allows the state to not disclose the grounds of detention if it considers it to be “against the public interest.”
“Public order” is defined broadly in the explanation to Section 2(a) of the law as encompassing situations that cause “harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave wide-spread danger to life or public health”.
“Preventive detention is an exceptional law to be used sparingly. When it is applied to simply circumvent bail and continue keeping a person in jail, it violates due process,” said senior advocate Mohana Reddy, whose practice mostly focuses on preventive detention.
Both the Supreme Court and the Telangana High Court have underlined while striking down detention orders that preventive detention cannot be invoked to circumvent granting of bail — that the state cannot detain an accused when he is likely to be released on bail for the same offences.
An illustrative and revealing example is the 2022 case of Anantha Ganesh before the Telangana High Court.
Ganesh was arrested in November 2021 for the alleged theft of six motorcycles, which were all reported stolen from public places in Hyderabad’s Vanasthalipuram within a month. In January 2022, Ganesh was granted conditional bail in all these six theft cases but, on the eve of his release, the Telangana Police designated him a “goonda” under the PD Act and kept him in the same jail. The police, exercising powers of a District Magistrate, cited the same six cases in which courts had granted bail to argue that Ganesh had caused “large scale fear and panic among the general public” affecting “public order”.
It took nine months for the Telangana High Court to strike down Ganesh’s detention as unlawful and hold that there was “no need for the detaining authority to invoke the draconian preventive detention law.”
In October 2016, Unnam Mohan Rao, an agro-business owner was arrested in three different FIRs under Section 420 of the Indian Penal Code for selling “spurious seeds” when the chilli seeds he sold did not “yield sufficient crops.” While Rao got bail in one of the cases, a preventive detention was confirmed on the grounds that he was a “goonda” and “there was every likelihood of his being released on bail.”
While the Telangana High Court dismissed Rao’s appeal against the detention order, in May 2017, the Supreme Court held that a person cannot be termed 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.”
When asked about such cases and the court’s indictment, Telangana’s top law officer Advocate General B S Prasad told The Indian Express that the state’s detention law is the same as the law in other states.
“Invoking PD is mandated by law and it is upheld by the judiciary. Of course, courts can check excesses by police but using detention as a tool to curb crime itself cannot be criticised,” he said.
In cases where the state used the detention law to circumvent bail, Prasad said that the law targets repeat offenders who are likely to commit crime again. “It is not as if those booked under the detention are innocent people…They are not Mr Cleans…they have a chequered history. Ultimately, citizens have to be protected from crime so the police are doing its job,” Prasad said.
While Tamil Nadu, with 1775 detainees in 2021, has topped the list for several years, Telangana, formed only in 2014 has had a steep climb to the top.
Consider this: a study by Dr Murali Karnam, professor at NALSAR University of Law in Hyderabad found 152 preventive detentions in Andhra between 2015-2019. In contrast, in the same period, Telangana has had 1,728 preventive detention cases.
Karnam attributes this sharp rise after the 2014 bifurcation of the state to increasing police powers. “Telangana created seven new Commissionerates and this brought vast parts of the state under police who can also order detention,” he said.
Commissioners are given the powers of district magistrate for specific purposes including ordering detention.
Cyberabad, Khammam, Nizamabad, Karimnagar Warangal, Siddipet, Rachakonda and Ramagundam are designated as Commissionerates in Telangana.
According to Karnam’s study, of 403 individuals detained in Hyderabad from 2015-2019, 99% of the detention orders are issued by the police and only 1% by district magistrates.
The study also notes that the Advisory panel has revoked only 43 of the 403 detention orders for lack of sufficient cause, implying that the state upheld 90% of its own orders.
In a ruling on September 4, an apex court bench of Justices Surya Kant and Dipankar Dutta noted that “a pernicious trend prevalent in the state of Telangana has not escaped our attention” while striking down a detention order that was issued to prevent the accused from being released on bail.
In a judgment in April 2022, a Supreme Court Bench headed by Justice DY Chandrachud had termed Telangana’s use of the preventive detention law “a callous exercise of the exceptional power”. And called upon the state to “evaluate the fairness of the detention order against lawful standards”.
