Supreme Court has strongly come down on the Preventive Detention Act in particular to Telangana, saying “the PD ACT in Telangana is a draconian Law”
“It’s surprising that no one has challenged the validity of this law”
What is PD Act?
Under this law, once an accused gets booked, the Superintendent of Police/Commissioner can send the person directly to the jail without the need to produce them before the Judicial Magistrate for a period of 3 months. Further, the detenu can only appeal for their release at the Advisory Board. The proceedings at the advisory board are opaque — as the recordings are kept confidential. No lawyers can be part of this hearing.
What is wrong with PD Act - its implementation or the law by itself?
- The PD Act bypasses the criminal procedure and the Judiciary
- Police are using the law as a parallel prosecution mechanism, only to bypass the procedural judicatory mechanism
- Preventive detention laws are designed to be highly administratively (by the Executive) steered and restrict the scope of judicial interference.
- PD Act as it reads is bound to be misused by the state (Govt/Police).
- Once a person is booked under PD Act the resolution mechanism is not only tough but also against the principle of natural justice. Most appeals for the bail/release get rejected, as the Advisory Board member, who is a judge, works as an executive member of the state, The State appoints the board members, and inevitably, they end up working as an executive member of the State.
For that matter, any law providing for the detention without a trial is bound to be misused by the state, Viz.
- Preventive Detention Act, 1950
- Maintenance of Internal Security, Act 1971 (MISA)
- National Security Act, 1980
- UAPA
Why is it extensively used by the State (Govt/Police)
The extensive use or misuse can be either to create the optics of a strong State, for silencing dissent against the State, or sometimes even for personal revenge by those yielding political power.
In the name of bringing down the crime rate, the police have been applying this strong law on small but serial crime offenders viz. burglaries, cheating, etc
Why is the Supreme Court serious about PD Act implementation?
Supreme Court has on multiple cases came down heavily on the implementation of this law. For better understanding, let's see few observations of SC,
- Police (state) cannot invoke the Preventive Detention laws to arrest citizens on the pretext of possible breach of law and order, Otherwise, it would only be a violation of the liberty of citizens guaranteed under Article 21 (right to life) under the constitution. Possible apprehension of breach of law and order cannot be a ground to detain a person under Preventive Detention Laws.
- ’Law and order’, ‘Public Order’ and ‘Security Of State’ mean different things. Cheating or criminal breach of trust may affect ‘law and order’, it cannot be said that it has affected ‘public order’.
When can the PD Act be applied, Supreme Court’s observation?
“A Preventive Detention Order can only be passed if a person’s activities adversely affect or are likely to adversely affect the maintenance of public order.
“Preventive Detention is a necessary evil only to prevent public disorder”
Supreme Court has in 2019 condemned the detention of a person in Telangana under PD Act on ‘irrelevant grounds’. Here in this case the person named Abdul Basheer was detained on the pretext of his acts carried on 15-20 years earlier. SC said detaining a person on this kind of “stale incident” will be akin to punishing him for a crime without trial.
As observed by the Supreme Court, PD Acts allowing detentions for a year without trial or bail should be applied only in the "rarest of rare cases" as it rapped the Telangana government for keeping a man in jail for nearly a year merely on the suspicion that he "habitually" stole saris.
PD Acts in Telangana is being slapped on political rivals, a case on Cheruku Sudhakar being a known example, people involved in stealing motor vehicles, cheating, etc. Law has its own provisions to deal with these crimes. Invoking PD Act would only subvert those laws on one side and infringe the personal liberty of the person on the other as he/she is already punished languishing in jail without any trail
It is important to note the Supreme Court’s observation in Sudhir Kumar Saha v. Commr. of Police, Calcutta, (1970) that, “the power to detain is an exceptional power to be used on under exceptional circumstances…; it is wrong to consider it as a substitute to the ordinary process of law”
Is the law Constitutional?
Experts who are studying the PD Act say that though Article 22 of the Indian Constitution legally allows for preventive detention, it works against the very spirit of the Constitution
Though the 1 & 2 Clauses provide for the protection of the arrested person, Clause 3 exempts this protection in the name of Preventive Detention. The states have been taking advantage of this very 3rd clause to scuttle the voice of dissent or for the reasons mentioned above.
What is the solution?
The solution shall be to scrap this draconian law by way of amending Article 22, Clause 3, of the Indian Constitution. It is to be scrapped for the reason that no other Democratic Constitutional nation has the kind of PD Act India has.
If not scrapping, there can be the 2nd solution, which shall be as follows,
A person detained under the laws of Preventive Detention should be given the right to consult and be represented by a lawyer of his choice at ‘any stage’ to ensure that the defense of the detainee is effectively put before the Advisory Board to aid it in making an informed decision.
The Advisory Board, which verifies the validity of the PD Act case by the case should be of a Judicial Nature with only the sitting Judges of High Court eligible to be its members, unlike the present form of administrative nature wherein a person is appointed by the Executive (Govt) as a judge.
The actual detention should be applicable only after the approval of such Advisory Board so that the detainee is not forced to stay in jail (detained) for a long time with just an executive (Govt/Police) order. And the maximum time for the Advisory Board to decide the validity should be not more than 14 days as against the present 3 months of time. Because when a court can decide within 14 days whether the normal detention should be extended beyond the judicial remand (14 days), why not the Advisory Board.
