Safeguards and procedures: On India’s

preventive detention laws

APRIL 12, 2023

Curbing crime needs efficient policing and speedy trials,

and not unfettered power and discretion
The Supreme Court’s observation that preventive detention
laws are a colonial legacy and confer arbitrary powers on the
state is one more iteration of the perennial threat to personal
liberty that such laws pose. For several decades now, the apex
court and High Courts have been denouncing the executive’s
well-documented failure to adhere to procedural safeguards
while dealing with the rights of detainees. While detention
orders are routinely set aside on technical grounds, the real
relief that detainees gain is quite insubstantial. Often, the
quashing of detention orders comes several months after they
are detained, and in some cases, including the latest one in
which the Court has made its remarks, after the expiry of the
full detention period. Yet, it is some consolation to note that
the Court continues to be concerned over the misuse of
preventive detention. In preventive detention cases, courts
essentially examine whether procedural safeguards have
been adhered to, and rarely scrutinise whether the person
concerned needs to be detained to prevent prejudice to the
maintenance of public order. Therefore, it is salutary that the
Court has again highlighted that “every procedural rigidity,
must be followed in entirety by the Government in cases of
preventive detention, and every lapse in procedure must give
rise to a benefit to the case of the detenu”.
Some facts concerning preventive detention are quite stark:
most detentions are ultimately set aside, and the most
common reason is that there is an unexplained delay in the
disposal of representations that the detainees submit against
their detention to the authorities. Failure to provide proper
grounds for detention, or delay in furnishing them, and
sometimes giving illegible copies of documents are other
reasons. In rare instances, courts have been horrified by the
invocation of prevention detention laws for trivial reasons —
one of the strangest being a man who sold substandard chilli
seeds being detained as a ‘goonda’. An unfortunate facet of this
issue is that Tamil Nadu topped the country (2011-21) in
preventive detentions. One reason is that its ‘Goondas Act’
covers offenders who range from bootleggers, slum grabbers,
forest offenders to video pirates, sex offenders and cyber-
criminals. The law’s ambit is rarely restricted to habitual
offenders, as it ought to be, but extends to suspects in major
cases. Across the country, the tendency to detain suspects for
a year to prevent them from obtaining bail is a pervasive
phenomenon, leading to widespread misuse. Preventive
detention is allowed by the Constitution, but it does not relieve
the government of the norm that curbing crime needs efficient
policing and speedy trials, and not unfettered power and
discretion.
 Change in status: On the national party
tag and impact on some political parties
APRIL 12, 2023

The divergent fortunes of the AAP, the Trinamool and

the NCP are linked to the Congress
In most electoral democracies, where the first-past-the-post
system prevails, competition results mostly in a duopoly, but
India has been an outlier. This is largely because its vast
federal set-up and diversity have led to the flowering of
several regional parties that have become salient in their
respective States. For the Aam Aadmi Party to be recognised
as a national party by the Election Commission of India (ECI)
in this milieu — there are six such now — is a creditable
achievement for a force that emerged out of a popular civil
society movement during the United Progressive Alliance’s
tenure. From notching up repeat victories in Delhi and
capturing Punjab, to registering respectable vote shares in
Gujarat and Goa, the party has grown into an electoral
alternative in some States where the Congress is weak. This
has allowed it to cross the threshold set by the ECI for
“national party” recognition. That said, the AAP’s
distinguishing factor as a political force remains its record in
Delhi where its municipal work has won it some accolades as
a party focused on governance. Yet, the lack of a coherent
ideology — it could tack to the right of the Bharatiya Janata
Party at opportune moments or to the left of the Congress at
times, while its positions on national and international issues
remain inchoate at best, and its commitment to secularism
remains tokenist in practice — is a limitation which could hurt
it in the long run.
Three other parties have lost their “national party” tag — the
Communist Party of India (CPI), the Trinamool Congress and
the Nationalist Congress Party (NCP). The CPI has been in
decline for decades, and even its limited electoral successes in
States such as Kerala are a consequence of its alliance with a
larger Left ally in the CPI(Marxist). The conditions that
necessitated the Left split in the early 1960s are no longer
relevant in a much changed world and both Left parties will be
better off with a merger, at least for reasons related to
ideological cohesion. The Trinamool and NCP are limited to
West Bengal and Maharashtra, even though they recently won
a small number of seats in Meghalaya and Nagaland,
respectively. Both parties originated in the 1990s due to the
differences their leaders had with the Congress’s high
command, but they have evolved differently since then. Unlike
the NCP, the Trinamool has retained a relatively hostile
posture towards the Congress. Its foray into Tripura was
rendered fruitless as the Congress managed to make a relative
comeback as an oppositional force while the NCP’s differences
with the Congress are no longer as salient as they were in the
1990s to help it grow at the latter’s expense.