Telangana’s Preventive Detention Law

October 26, 2023

As Telangana prepares for upcoming Assembly polls, its use of a stringent preventive detention law has come under scrutiny by the Supreme Court. In at least three instances, the Court has expressed concerns about the state’s utilization of this law.

The Essence of Preventive Detention

Preventive detention involves the detention of an individual by the state without the need for a trial and conviction in court, based solely on suspicion. This detention can last up to a year unless extended, and it is distinct from pre-trial detention, where an individual is detained while awaiting trial for a specific crime. Preventive detention is a measure aimed at preventing potential threats or offenses rather than addressing past criminal behavior.

Legal Basis in the Indian Constitution

India’s Constitution provides for preventive detention under Article 22, which falls within Part III, dealing with fundamental rights. This Article grants the state the authority to suspend certain fundamental rights for preventive detention purposes. While the Constitution emphasizes individual liberty, it also accommodates provisions for preventive detention.

Laws Governing Preventive Detention

Several central and state legislations empower the state to order preventive detention. Central legislations like the National Security Act and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) are examples. Additionally, around 25 Indian states, including Telangana, have their own preventive detention laws, addressing various local law and order issues.

Powers of the State

Article 22 of the Constitution lays down the framework for preventive detention while incorporating certain safeguards:

Order of Detention: The state, typically represented by the district magistrate, may issue an order for preventive detention when it is necessary to maintain “public order.” This power can also be delegated to the police.
Advisory Board Approval: If the detention is intended to extend beyond three months, Article 22(4) mandates the approval of an Advisory Board. These Boards, often comprised of retired judges and bureaucrats, assess the detention order. Detainees usually lack legal representation before the Board, but they can challenge the order in court if it is confirmed.
Grounds of Detention: Article 22(5) requires the state to communicate the grounds of detention to the detainee promptly. The detainee must be afforded the earliest opportunity to make a representation against the order. The grounds must be communicated in a language understood by the detainee.
Non-Disclosure Clause: Article 22(6) allows the state to withhold facts considered to be “against the public interest to disclose.”

Judicial Review and Its Limitations

Judicial review of preventive detention orders is restricted, as the Constitution underscores the state’s “subjective satisfaction” when ordering detention. Courts primarily examine whether the Advisory Board applied its mind, considered all relevant facts, and whether the state acted in obvious bad faith.
The Court cannot substitute the state’s subjective satisfaction with its own, making it challenging to assess the veracity of the facts presented in the grounds for detention.
Given this limited scope of judicial review, courts often strike down detention orders on technical grounds, such as delays in Advisory Board decisions or the timely communication of grounds in a language comprehensible to the detainee.

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