Safeguards and procedures: The Hindu Editorial on India’s preventive detention laws 

The Supreme Court’s observation that preventive detention laws are a colonial legacy and confer arbitrary powers on the state is one more iteration of the perennial threat to personal liberty that such laws pose. For several decades now, the apex court and High Courts have been denouncing the executive’s well-documented failure to adhere to procedural safeguards while dealing with the rights of detainees. While detention orders are routinely set aside on technical grounds, the real relief that detainees gain is quite insubstantial. Often, the quashing of detention orders comes several months after they are detained, and in some cases, including the latest one in which the Court has made its remarks, after the expiry of the full detention period. Yet, it is some consolation to note that the Court continues to be concerned over the misuse of preventive detention. In preventive detention cases, courts essentially examine whether procedural safeguards have been adhered to, and rarely scrutinise whether the person concerned needs to be detained to prevent prejudice to the maintenance of public order. Therefore, it is salutary that the Court has again highlighted that “every procedural rigidity, must be followed in entirety by the Government in cases of preventive detention, and every lapse in procedure must give rise to a benefit to the case of the detenu”.

Some facts concerning preventive detention are quite stark: most detentions are ultimately set aside, and the most common reason is that there is an unexplained delay in the disposal of representations that the detainees submit against their detention to the authorities. Failure to provide proper grounds for detention, or delay in furnishing them, and sometimes giving illegible copies of documents are other reasons. In rare instances, courts have been horrified by the invocation of prevention detention laws for trivial reasons — one of the strangest being a man who sold substandard chilli seeds being detained as a ‘goonda’. An unfortunate facet of this issue is that Tamil Nadu topped the country (2011-21) in preventive detentions. One reason is that its ‘Goondas Act’ covers offenders who range from bootleggers, slum grabbers, forest offenders to video pirates, sex offenders and cyber-criminals. The law’s ambit is rarely restricted to habitual offenders, as it ought to be, but extends to suspects in major cases. Across the country, the tendency to detain suspects for a year to prevent them from obtaining bail is a pervasive phenomenon, leading to widespread misuse. Preventive detention is allowed by the Constitution, but it does not relieve the government of the norm that curbing crime needs efficient policing and speedy trials, and not unfettered power and discretion.