(This is a guest post by Varun Ahuja)
A Division Bench of the Madras High Court, in a case titled Harini v. State of Tamil Nadu [HCP No. 2679 of 2022 decided on 28.04.2023], quashed a preventive detention order under the Tamil Nadu Goondas Act, 1982, holding that informing the wife of the detenu about his detention through a Short Messaging Service (SMS) message is improper and violates Article 22(5) of the Constitution (Para 9).
Article 22(5) provides two valuable rights – a right to be informed of the grounds of detention and to be afforded the earliest opportunity to make a representation against the preventive detention order. This post addresses the problems with short-circuiting the first right, namely, to be informed of the grounds of detention; especially, in context of the Tamil Nadu Goondas Act. Additionally, it briefly touches upon the absence of legal aid to detenus under preventive detention and explores the inter-connectedness of the two rights under Article 22(5).
The High Court’s Decision in Harini
The challenge of habeas corpus in Harini was to an order dated 30.11.2022, passed by the Commissioner of Police, Avadi City, Chennai, to detain the petitioner's husband, Ezhilkumar @ Ezhil aged 26 years, under the Goondas Act. A prior case, which formed the basis of the order, was Crime No. 897 of 2022 registered at E-5 Sholavaram Police Station, for offences of rioting and robbery (among others). Therefore, the detenu came under the definition of a ‘Goonda’ as per Section 2(f) of the Act.
The date of the detention order assumes significance, since the bail application of Ezhil was filed just a day prior, i.e. on 29.11.2022, at the Principal District Court, Tiruvallur. It was later dismissed on 02.12.2022. The passing of detention orders against individuals already in custody is not uncommon, and has been upheld by the Supreme Court as lawful [recently in Union of India v. Dimple Happy Dhakad, (2019) 20 SCC 609)]. Nevertheless, the habeas corpus petition was filed and registered with the High Court on 22.12.2022. It took little over four months for it to be finally decided on 28.04.2023.
To reach its decision, the High Court relies on two earlier decisions of the Division Bench of the Madras High Court — Akilandeswari v. State, rep. by Secretary to Government, Home, Prohibition and Excise Department, 2008 (3) MLJ (Crl) 744 & Ganesh @ Lingesan v. State of Tamil Nadu, 2012 SCC OnLine Mad 2187. In both cases, Akilandeswari & Ganesh, information about detention was conveyed by telegram but a copy of the telegram was not supplied to the detenu. Additionally, in Akilandeswari, it was contended by the State that the detenu's family was informed; however, no material was placed on record to substantiate the claim. In both cases, the High Court came to the conclusion that there was an infraction of Article 22(5) and therefore, the detention order was bad in law.
In Harini, the State argued that the grounds had been communicated through an SMS to the detenu's wife on a phone number based on details provided by the detenu himself. Furthermore, it was argued that no representation was made in this regard and the ground of non-imitation has been put forth for the first time (Para 5). The High Court rightly rejected these contentions and specifically observed that the ‘grounds booklet’ bore no signature to show that the phone number belonged to the petitioner.
Goondas Act and the Necessity of Proper Communication
A Look at the Statistics
The Tamil Nadu Goondas Act was enacted in 1982 and covered a wide ambit – involving Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders & Slum Grabbers – for preventing activities ‘prejudicial the maintenance of public order’. Over the years, through various amendments, its scope has been expanded further to include Forest Offenders, Video Pirates, Sand Offenders, Cyber Law Offenders & Sexual Offenders (For a detailed history and application, see here, here & here).
The frequent resort to using preventive detention in the State of Tamil Nadu is clear from looking at the numbers from the NCRB & SCRB. The Prison Statistics Report of 2021 shows that a little over half of detenus (51.2%, 1,775) in the country were in the State of Tamil Nadu. Crime Review 2021, a Report published the Tamil Nadu State Crime Records Bureau, shows that out of the total 3194 persons detained in the year 2021, 2843 (89%) persons were detained under the Goondas Act. Furthermore, in a study of the habeas corpus petitions decided by the Madras High Court (both Benches) from the year 2000 till January 2022 (total of 7,448 cases over 22 years) under all preventive detention laws, it was revealed that 95% of the cases (7,096 out of 7,448) emanated from the Goondas Act.
To better understand the implication of Article 22(5) against this prolific use of Goondas Act, it is important to see what kind of people are detained under the law. The profile of detenus can be ascertained from the NCRB’s report in Prison Statistics India:
- Educational profile - 417 (23.4%) were illiterate, 700 (39.4%) had education below Class X and 369 (20.7%) had education above Class X but below Graduation;
- Domicile - all 1775 detenus were from within the State;
- Caste profile - 657 (37%) belonged to Scheduled Castes, 32 (1.8%) belonged to Scheduled Tribes, 808 (45.5%) were from Other Backward Classes;
- Age profile - 762 (42.9%) detenus were between 18-30 years & 647 (36.4%) detenus were between 30-50 years of age.
(Analysis for the years 2016 to 2020 can be found in this Study at page 4 and shows similar results)
It can be concluded that people being detained are usually young, less educated and from marginalized communities. In these circumstances, it becomes even more crucial that the ‘communication’ mandated by law is scrupulously adhered to and the duty to ensure that grounds are effectively communicated must necessarily rest with the State.
Absence of Legal Aid
Effective communication of the detention order and grounds of detention is also necessary because, as a rule, the Constitution under Article 22(3) envisions a denial of the right to consult an advocate to a person under preventive detention and provides a positive mandate on the detenu to make a representation against their detention. Section 11(5) of the Goondas Act implements this mandate and states that a person is not entitled to appear through a legal practitioner before an Advisory Board.
This denial of the right to counsel was, unfortunately, upheld by the Supreme Court in A.K. Roy v. Union of India, (1982) 1 SCC 271; only adding a caveat that if the detenu is denied legal representation before the Advisory Board, the Government cannot be represented by a Counsel either; moreover, it added that the detenu can be represented by a ‘friend’ of the detenu, so long as they were not a legal practitioner.
Be that as it may, a representation before the Advisory Board is one thing, but to even understand and formulate an ‘effective representation’ the detenu would require assistance to rebut the grounds supplied by the detaining authority, especially if the detenu is less educated or illiterate. So that the representation remains ‘effective’. Over time, the Supreme Court has incrementally developed the right to ensure that the procedure of detention remains fair and reasonable as far as possible. For example, the Court has held that the grounds that are supplied should not be vague, non-existent or irrelevant, stale, suffer from mala fide, should be in a language the detenu understands, and the documents that are relied upon by the detaining authority should not be illegible or blurred.
Additionally, a denial of the right to consult a lawyer shifts the burden on the family members of a detenu, who are constrained to approach the High Court, seeking a writ of habeas corpus. As was the case in Harini; it was the wife of the detenu who approached the High Court, without adequately agitating their case by way of an effective representation.
Two Connected Rights
The Supreme Court recognises that preventive detention, by its nature, is ‘repugnant to democratic ideas and an anathema to the rule of law’. It has, time and again, stated that procedural safeguards under preventive detention have to be followed strictly. Reiterating the principle recently, the Supreme Court held that preventive detention laws in India are a ‘colonial legacy’ and have the ability to ‘confer arbitrary power to the State’. It went on to observe that every procedural rigidity must be followed in its entirety by the Government and the Court’s duty is not only of protecting civil liberties of an individual or the society, but also of ‘preserving our Constitutional ethos’.
The two safeguards that are important for our consideration are enshrined under Article 22(5) of the Constitution. Article 22(5) runs as follows:
When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. [Emphasis Supplied]
Professor M.P. Jain states that these two rights – communication of grounds and the right to make representation – collectively are ‘natural justice woven into the fabric of preventive detention by the Constitution’ (See M.P. Jain, Indian Constitutional Law, 8th Edition at Page 1241). The inter-relatedness of the two rights had also been recognised by the Supreme Court as far back in 1975 in Khudiram Das v. State of W.B., (1975) 2 SCC 81 (Para 6).
Amongst the two, the safeguard of communicating the grounds of detention becomes more important since the other right, namely, making a representation against the detention, can only be realised if the grounds (along with the relevant material) are supplied to the detenu. This has also been acknowledged by the Supreme Court in Bhut Nath Mete v. State of W.B., (1974) 1 SCC 645, observing that “communication of facts is the cornerstone of the right of representation and orders based on uncommunicated materials are unfair and illegal.”
It is axiomatic that unless a detenu knows the reasons why his liberty has been curtailed, there can be no effective representation against such detention. It is apposite to recall Justice H.R. Khanna’s timeless dissent in ADM Jabalpur: “the history of personal liberty is largely the history of insistence upon procedure.” And it still holds true as demonstrated in Harini. The procedural safeguards under Article 22 are the bare minimum of what is required to ensure that the State does not use its exceptional powers arbitrarily. It is only the stubborn insistence on following procedure that can help reduce, or at least keep in-check, the abuse of powers by the State.
No comments:
Post a Comment