Telangana’s law under scanner

Telangana’s law under scanner

Subject : Polity

Section: Constitution

Context: Telangana stringent preventive detention law is under the spotlight.

More about the news:

• Telangana stringent preventive detention law is under the spotlight.
• In at least three separate instances, the Supreme Court has red-flagged the Telangana government’s use of the law.
• The latest was in a ruling on September 4, where the court underlined that the pernicious trend prevalent in the state of Telangana has not escaped the Court’s attention

What is preventive detention:

• Preventive detention is the state’s authority to detain a personbased on suspicion,without trial or conviction, for up to a year with the possibility of extension.
• This differs from pre-trial detention, where a person awaits trial for a specific crime.
• In India, the Constitution permits preventive detention under Part III, which deals with fundamental rights, even though it emphasizes individual liberty.
• Despite its inclusion in the fundamental rights section, the Constitution contains provisions, notably under Article 22, that allow the state to suspend these rights for preventive detention.
• This sets India apart from countries like Britain, the United States, and Canada, where preventive detention is typically considered a wartime measure.

Under what laws can the state order preventive detention:

• Preventive detention is permitted under various central and state legislations in India. At the central level, examples include the National Security Act and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA).
• In addition to central laws, 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.
• These state laws are designed to address local law and order issues and are quite expansive in their scope. and also have similar acts focused on combating antisocial activities and maintaining public order.
• These laws allow authorities to detain individuals on preventive grounds to manage and prevent potential threats or criminal activities.

What are the powers of the state:

• Article 22 of the Indian Constitution provides protections against arrest and detention, but it has an important exception specified in Article 22(3)(b), which excludes these protections when an individual is detained under a law related to preventive detention.
• The operational procedures for preventive detention are explained within this legal framework.
• First, the state, often represented by the district magistrate, can issue a detention order when it is deemed necessary to maintain “public order.” This authority can also be delegated to the police.
• If the detention extends beyond three months, Article 22(4) requires the approval of an Advisory Board, typically consisting of retired judges and bureaucrats.
• Importantly, detainees are not typically granted legal representation before these Boards.
•  If the Board affirms the detention, the detainee has the right to challenge the order in court.
• Additionally, Article 22(5) mandates that the state must promptly communicate the grounds for detention to the detainee and provide them with the earliest opportunity to present their case against the order.
• This communication must be in a language that the detainee understands.
• However, Article 22(6) does somewhat diminish these safeguards by permitting the state not to disclose facts it deems against the public interest.
• In summary, Article 22 balances individual rights with the need to maintain public order by outlining protections and procedures for preventive detention in India.

How do courts assess the detention orders:

• In cases of preventive detention, the Constitution places significant weight on the state’s “subjective satisfaction” when ordering a detention, limiting the grounds for judicial review. 
• The court’s assessment primarily centers on the state’s subjective judgment rather than the constitutional rights. This means the court cannot independently verify the accuracy of the facts cited as reasons for detention.
• Judicial review is thus confined to ensuring the Advisory Board’s due diligence, consideration of all relevant facts, and the absence of any clear misconduct by the state.
• Due to these limitations, courts often invalidate detention orders based on technical issues, such as delays in Advisory Board decisions or problems related to the timely communication of grounds in a language understandable to the detainee.

What is the history of Preventive Detention Laws in India:

• The history of preventive detention laws dates back to the Bengal Regulation Act, 1818 under which people could be detained on mere suspicion which was applicable to the three Presidencies, that is, Calcutta, Bombay and Madras during the British era.
• Later the ‘Black law’ commonly called the Rowlatt Act was introduced in the year 1919 which ensured indefinite detention on mere suspicion without formal trial and judicial review.
• Under Entry 9 of List I (Union List), the Constitution of India provides the Parliament with the exclusive power to enact a law for preventive detention for the reasons connected with defence, foreign affairs, or security of India.
• On the other hand, under Entry 3 of List III (Concurrent List), both Parliament and State Legislature have powers to enact such laws for the reasons related to maintenance of public order or maintenance of supplies or services essential to the community.
• Subsequently, the Parliament has enacted several laws in this respect –
  • Preventive Detention Act, 1950
  • The National Security Act, Section 13, 1980 
  • The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
  • The Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, Section 13, 1980
  • The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, Section 10, 1988.