[This is a guest post by Varun Ahuja]
On December 23, 2021, the Madras High Court quashed the order authorising preventive detention of one Mr. Kishore K Swamy, under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drug-offenders, Goondas, Immoral Traffic Offenders, Forest-offenders, Sand-offenders, Sexual-offenders, Slum-grabbers and Video Pirates Act of 1982, which in the interest of brevity is commonly referred to as the Tamil Nadu Goondas Act. Kishore Swamy, who has been referred to in reports as a ‘prolific troll’, was well-known for harassing and targeting women journalists on twitter. His preventive detention was authorised for circulating defamatory posts against Tamil Nadu Chief Minister MK Stalin and former DMK leaders Annadurai and M Karunanidhi. While the Act itself is arguably overbroad and its application in the present context warrants scrutiny, this post is restricted to analysing the delay in disposing off the Habeas Corpus petition by the High Court.
One of the many arguments raised on behalf of the detenu while challenging the preventive detention order was a delay in considering the representation submitted by the detenu against the detention order. The government contended that the detention order cannot be quashed only on the ground that there was delay in considering the representation. However, it is settled [Rekha v. State of T.N., (2011) 5 SCC 244 (Para 12)] that preventive detention orders can indeed be quashed if there is delay in passing the detention order, or delay in executing it, or delay in deciding the representation of the detenu.
In the present case, the detention order was passed on 24.06.2021, the representation was submitted on 09.08.2021. Government asked the detaining authority to send remarks against the detention order on 11.08.2021 and they were received on 13.08.2021. And then finally, the representation was rejected on 20.10.2021. Therefore, the argument was that there was 2 days unexplained delay (between 11.08.2021 and 13.08.2021) in submitting remarks by the detaining authority and 42 days unexplained delay (there were 68 days between 13.08.2021 and 20.10.2021 but 26 days were government holidays) in considering the representation. In its short order, the Court agreed with the submissions of the petitioner that there had been a delay of 2 days by the Detaining Authority and an unexplained delay of 42 days in considering the representation (Para 10) – thereby quashing the detention order.
Time at the High Court
Assuming that the detenu was taken into custody when the detention order was passed, i.e. 24.06.2021 (even though media reports indicate, he was arrested much earlier on 14.06.2020), the person had spent 182 days in custody till the High Court ultimately quashed the order. It is important to note, that there was no substantial question of law involved in the case. All that the High Court was asked to do was to look at the case records and require an explanation for the delay from the government. There appears to have been no real delay in filing the habeas corpus petition since the registered date of the case was 23.07.2021 (H.C.P. No.1134 of 2021). The record on the ecourts website reflects that the case was listed on three occasions – 28.07.2021, 22.09.2021, 10.12.2021 — with the judgment delivered on 23.12.2021. As I have been unable to locate order-sheets online, it is not possible to state why these adjournments were granted and, more importantly, why there were delays of 2-3 months at a time between hearings (essentially, was this due to a specific request, or down to the general backlog in the court).
On the judgment itself, while it is understandable for judgments to be brief and to the point, perhaps in the context of preventive detention a Court ought to provide us with certain basic details about the procedural life of the preventive detention so as to enable observers and the public at large to get a glimpse of the workings of the state machinery. It might not be a need elsewhere, but since preventive detention does not involve court hearings and proceedings before advisory boards are in camera, there is very little scope for a curious and concerned citizen to know what is going on. I would go so far as to contend that it is imperative in the preventive detention context, because while use of this power is sanctioned by the Constitution, it has to be read strictly and even a minor deviation from the procedure makes the order liable to be quashed. And an unavailability of this kind of data removes any possibility to analyse how the State has been using (or abusing) its powers under preventive detention laws.
A Meaningless Remedy
There is no context in which the homily of “justice delayed is justice denied” rings truer than for the context of habeas corpus. This remedy is at highest risk of being rendered meaningless if courts do not decide cases quickly, one way or another. Sadly, available evidence suggests that Indian constitutional courts have miserably failed to keep this in mind. In an empirical study conducted by Mr. Shrutanjaya Bhardwaj analysing habeas corpus petitions disposed by the Supreme Court from 2000-2019, it found that the Supreme Court generally took more time than the maximum period prescribed for detention (generally one year), to hear and decide a habeas corpus petition. As a result, it reduces the writ of habeas corpus to a meaningless remedy. For instance, in the previous year, the Jammu and Kashmir High Court Bar Association had written to the Chief Justice of India that after the abrogation of Article 370, when many people in the valley were detained, where the letter stated that while over 600 habeas corpus petitions had been filed by persons preventively detained before the High Court of UT of J&K at Srinagar, not even 1% of such cases were decided by the J&K High Court by then.
The Bar Association in the letter cited the case of its President, Mian Abdul Qayoom, as an illustration of the issue. In the case of Mr. Qayoom, the detention order was passed on 07.08.2019, a single judge decided the writ petition on 07.02.2020 against which an Letter Patent appeal was preferred which was decided on 28.05.2020. Therefore, in this case too, the petition spent about 182 days (6 months) at the High Court. An appeal was preferred before the Supreme Court which was registered on 18.06.2020 [SLP(Crl) No. 002833 - 002834/2020] and finally decided on 29.07.2020. Even then, the Court did not rule on the legality of the detention order but decided the petition on the government’s concession that since the Petitioner had anyway served the maximum period of detention he shall be released. All in all, Mr Qayoom was incarcerated for the maximum period (one year) prescribed under law without trial, without ever receiving final adjudication if his detention order was indeed legal.
The delay caused by a constitutional court in ruling on a habeas corpus petition has a dramatic effect on how much time the person serves under preventive detention, in case its judgment is challenged in appeal. A High Court being the first judicial body adjudicating on the legality of preventive detention must be more proactive in deciding habeas corpus petitions. This in turn, will allow the Supreme Court enough time in deciding the appeal and not let the remedy become meaningless.
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