Rendering Criminal Law Meaningless: On the Draconian Telangana Preventive Detention Law

By Abinav Sekhri

In 2017, the Telangana government passed a Bill to ratify and ordinance which had made the “Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land-Grabbers Act 1986”, into 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 Substance Offenders, Arms Offenders, Cyber Crime Offenders, and White Collar or Financial Offenders Act 1986”. The Centre had at first questioned this expansion — not due to any rights’ concerns, but on grounds of legislative competence — but the President approved the act in 2018, leading to Act 13 of 2018 being passed by the Telangana government (with retrospective effect). Which gave us the Act
This preposterously named statute is not designed to create fast-track criminal courts for the many kinds of “offenders” it lists out in the title, or provide different rules on bail, or even reverse the onus of proof. Rather, this statute refers to categories of persons against whom the Telangana Government can exercise its powers of Preventive Detention. To understand what this process of Preventive Detention is all about, you should take the 4 minutes it takes to go through this wonderful set of illustrations by PenPencilDraw
Simply put, it is a process which enables police to jail people for up to 3 months at a stretch even if they have not committed a crime by a process which involves no proper judicial scrutiny of the allegations, and no right to counsel. What makes preventive detention even worse is that it is often used in tandem with the regular criminal justice system for offences allegedly committed by persons, where detention orders are passed when accused persons are pursuing bail applications or are just about to be released on bail. 
The expanded Telangana Preventive Detention Law is, in fact, seemingly designed to operate in this way. The various categories of “offenders” identified under the Act are defined in a way which expressly links them to the commission of different cognizable and non-bailable offences — for instance, “sexual offender” is defined as anyone who has committed or abetted commission of offences under Protection of Children from Sexual Offences Act 2012, besides certain other Penal Code offences. If a person is accused of having committed such a crime, they will be arrested, and any “threat” to public order posed by them is therefore necessarily linked to their release, or potential release, on bail by a court.    
In this manner, the executive authority fully subverts the judicial process, sending the clear message that it does not matter whether a court applied its mind to a case and thought a person deserves to be released on bail – we can still keep her imprisoned.
When the Telangana Preventive Detention Law was recently involved in a case before the Supreme Court, the bench was surprised that it had not yet been challenged and called the law “draconian” [This was during the course of hearing and deciding Banka Sneha Sheela (Crl. Appeal No. 733 of 2021, decided on 02.08.2021)]. Preventive Detention, as I have argued elsewhere, is inherently draconian in a legal system which is based on the idea of a fair trial being necessary to impose severe sanctions of imprisonment upon anyone. Time and again, states which preach fidelity to this idea endorse Preventive Detention, relying upon that old friend called necessity. This argument acknowledges the need for Preventive Detention but, at the same time, also recognises the need for keep it confined to a domain of extraordinariness. 
By and large, it is fair to say that this has been the Indian approach, in theory,since the Constitution was passed in 1950. Which is what makes statutes such as the Telangana Preventive Detention Law so strikingly dissonant to the law, and so clearly draconian. I say statutes such as the Telangana law, because this is perhaps only the most egregious example from similar laws prevailing across states. And it is also apparent that other states have flirted with the idea of expanding the scope of their Preventive Detention laws in the past — Tamil Nadu, for instance, took a step back in 2014 considering an expansion would run afoul of the Constitution.
What Telangana has done with its Preventive Detention Law, and what other states have either wanted to do in the past and might yet do in the future, is to effectively render the criminal process redundant and in its place erect a crude system of speedy “justice” through jail time for persons “known” to be criminals. The Supreme Court has said that it is cannot be a quick alternative to the regular criminal process, but honestly, that is what Preventive Detention is today. And in a criminal process plagued by delays at every level, it is easy to understand why there is an acceptance for such measures within the government, if not also within society at large. 
Sure, a state government may suffer the odd rap on the knuckles in court for adopting tactics where such obvious deprivation of rights is involved. But on a balance of considerations, is that not worth the cost when what the government stands to gain is a reduction in the crime rate. Want to curb spurious seed sales? Bring it under Preventive Detention. Want to show a tough stance on sexual offences? Bring that also under Preventive Detention. Same for cyber crimerave parties, and any other kind of undesirable activity you can find. 
Is not the deprivation of liberty for a few justified when it leads to the improvement in the quality of life for the many? This is a false equivalence if there ever was one — this relationship between crime rates and Preventive Detention is no scientifically identified cause and effect but the police crediting any measure they like after the data comes in. It is obvious that they will credit measures which confer upon them almost boundless power and take away the “hassle” of criminal procedure. But the problem is that this false equivalence sells and is easy to fall for. Which is why more states are likely to go down the Telangana route in the future, I suspect, as it is unlikely that any of them are going to actually make the kind of investment required to actually improve how the criminal process functions.
The Telangana Preventive Detention Law might yet be successfully challenged in court and trimmed down to size, but until the criminal process begins to assume some degree of speed, the attractions of “doing justice” through Preventive Detention will remain very high for governments. 

[The author is a criminal lawyer based in New Delhi. This article first appeared on his blog, ‘The Proof of Guilt’.]

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