On 14th November 2022, a division bench of the Madras High Court handed down an important judgment on the subject of preventive detention (Sunitha vs Additional Chief Secretary). The High Court examined – and set aside – two preventive detention orders passed by the State, under the Tamil Nadu Goondas Act. There are three significant features of the judgment, that merit careful study.
A Pattern of Abuse
The Court began by recounting its experience of “scores of habeas corpus petitions” against preventive detention orders being filed every day, which “are inevitably allowed”, albeit after 4-6 months, because of the backlog of cases (paragraph 2). The Court elected to go deeper into the issue, and consider statistics. Consulting prison statistics, it found that Tamil Nadu had the maximum number of people in detention, for every single year between 2011 and 2021 (rising to 51% of the total number of detentions in the country). The Court observed that this could either mean that the state was descending into lawlessness, or that the state was abusing its ‘jurisdiction of suspicion’ (paragraph 6). Given that an overwhelming number of preventive detention orders (86%) were eventually set aside, and indeed, not even one was confirmed, option 2 was evidently more likely. The Court therefore observed that, enabled by the vague provisions of the Goondas Act, “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.” (paragraph 13)
Remedies
Having established this “pattern of abuse,” the Court came to the issue of remedies. It noted that “the time has now come for this Court to explore the possibility of awarding damages in cases where detention orders are set aside after finding that it was invoked on wholly extraneous and irrelevant grounds, which amount to a conscious abuse of power.” (paragraph 24) The Court held that such “indifferent” detention orders would amount to a “constitutional tort”, and therefore give rise to a claim for damages (paragraph 26). Following the judgment in Rudul Shah, the Court characterised this as a public law remedy, flowing from Article 21 of the Constitution.
Enforcement
The Court then went on to find that in the first of the two cases before it, the trigger for compensation had clearly been met. The Preventive Detention Order had been issued on the basis that the detenue had abused a public servant – but given that the said abuse had taken place in a private space, it was the evident that the threshold requirement for the application of the Goondas Act – a threat to public order – had not been met, given the constitutional definition of “public order” (paragraph 35). The Court held that this clearly amounted to a “casual invocation” of the preventive detention law would violate Article 21 of the Constitution (paragraph 38). And because it was a constitutional violation, it overrode the Goondas Act “good faith” immunity for agents of the State. Crucially, the Court noted that this would be necessary in cases of “misuse of the preventive detention law against a detenue who could have been proceeded against under the available penal laws.” (paragraph 40) This is important, because the Court’s focus was not on proving ill-intent or malice against State officials (an almost impossible task), but the fact that preventive detention had been invoked in a case that could evidently have been dealt with under ordinary law. Indeed, this was the basis on which the Court set aside the second detention order as well (although it did not impose costs): in the case, the detenue had abused and bitten the finger of a police constable. The Court noted that while this was a heinous act, there was no reason why it could not be dealt with under ordinary penal law, without the need to invoke preventive detention provisions. The order was, therefore, set aside.
Comment
Compensation for wrongful arrest and detention is a very under-developed concept in India, with courts almost never holding the State to account (indeed, the Supreme Court notoriously refused a compensation claim from people who had been imprisoned for a decade until they were acquitted), on the basis that doing so would “demoralise” the police and the security agencies. In that sense, the High Court’s judgment is welcome, as are its strong remarks about the abuse of the preventive detention law. Also welcome is its focus on asking whether the alleged offence in question can be dealt with under ordinary law. It is worth remembering that preventive detention is meant to be an exception to the normal rules of criminal law, which frown upon imprisoning a person not for something they have done, but for something they might do. That principle, however, has long been lost sight of; the High Court’s judgment reiterates that crucial distinction between ordinary criminal law and exceptional preventive detention law, and warns against blurring the lines between the two.
That said, a few points arise. The first is that the High Court invoked the doctrine of “constitutional tort”, but it could do with more fleshing out. The contours of the doctrine vary in different jurisdictions (for instance, US constitutional tort is distinct from Irish constitutional tort); thus, the nature of the doctrine, and the legal standards that it encompasses, require some development; perhaps that is for a case for another day.
Secondly, there is the question of future enforcement. As noted above, our constitutional culture is yet to normalise the concept of compensation against the State for wrongful arrest; consequently, it is doubtful how effective the High Court’s judgment will be as setting out an effective and continuing deterrent. For this reason, I believe that the High Court could have gone further than it did. Once it had found – as it did – that there was a statewide pattern of abuse, it need not have restricted its finding to the case before it. Previously, on this blog, I have discussed the doctrine of an unconstitutional state of affairs, defined in the following way:
The unconstitutional state of affairs is a legal ruling that allows the Constitutional Court to acknowledge the failure of both the Legislative and Executive branches of government to enforce public policies against widespread and systemic violation of fundamental rights, thus justifying a judicial intervention in order to combat the structural causes of the violations and to put everything back in order with the Constitution.
It is evident that the High Court’s own analysis pointed to the existence of an unconstitutional state of affairs: it found that preventive detention was being repeatedly invoked for frivolous purposes, and effectively to keep people detained for four to six months, until the order would be set aside by the advisory board or by the court. This was evidently a “widespread and systemic violation of fundamental rights.” The declaration of an unconstitutional state of affairs, therefore, would have enabled the Court to address structural causes through tools such as the continuing mandamus, where the bench in question could have commenced continuing oversight over the State’s use of preventive detention, with the possibility of more compensatory orders for breach. This, I submit, would be a more effective deterrent against State impunity.
And thirdly, it is questionable whether the actual remedy is “punitive” or deterrent in any meaningful way. The High Court ordered compensation of Rs 25,000, which – in practical terms – is nothing at all. In order to prove an effective deterrent, it is evident that the compensation amount must be increased by several degrees.
Conclusion
In sum, therefore, the High Court’s judgment breaks important new ground, and is a laudable first step towards combating State impunity in the invocation of preventive detention laws, and the normalisation of preventive detention laws. However, future judgments can now build upon this platform, and go further.