Guest Post: Judicial Review of Preventive Detention Orders – The Supreme Court’s Progressive Judgment in Mallada v State of Telangana

[This is a guest post by Varun Ahuja.]

“…But, Sir, what the Government is after is not the power to take preventive action; what it is after is immunity from the responsibility to prove guilt or intent before a court of law. What they want is to substitute suspicion for evidence, substitute the pleasure of the executive for conviction by the judiciary. The Bill, therefore, is not only an attack on the citizen’s rights, but is also an attack on the judiciary, the power of the judiciary to protect the citizen.”

– Shri Ravinder Varma, Lok Sabha Debates, 15 December, 1980, Debate on the National Security Bill, 1980


On 4th April 2022, a two-judge bench of the Supreme Court delivered a judgment titled Mallada K Sri Ram v. State of Telangana (“Mallada”) quashing a preventive detention order under Section 3(2) of the Telangana Prevention of Dangerous Activities Act, 1986 (“TDA” or “the 1986 Act”). The detenu had filed an appeal against the Telangana High Court judgment which had upheld the order of detention. The order was quashed because it was passed on ‘stale grounds’ and that there was non-application of mind by the detaining authority; specifically, by the time the order of detention was passed, the detenu was already on bail and no incident had happened even after the bail conditions imposed had lapsed.

In India, the Executive enjoys a lot of powers when it comes to preventively detaining individuals to ‘prevent’ a commission of an offence. There are four central laws (Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, National Security Act, 1980, Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 and Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988) under which authorities can preventively detain individuals, and the States have their own power to enact laws authorizing preventive detention. The Parliament, under Entry 9 of List I, is authorized to make laws providing for preventive detention on subject of ‘defence’, ‘foreign affairs’ or the ‘security of India’. Simultaneously, the States can make laws under Entry 3 of List III for reasons connected with ‘security of a state’, ‘maintenance of public order’, or the ‘maintenance of supplies and services essential to the community’. The constitutionality of these terms – vague and over-broad in their own right – was upheld by the Supreme Court in A.K. Roy v. Union of India. The Court admitted that the terms might be vague and incapable of a precise definition; but refused to strike down the law (National Security Act, 1980) on the ground of vagueness and uncertainty and ‘hoped’ that they will be applied and interpreted narrowly. Furthermore, judicial review of detention orders is largely limited to only procedural grounds barring few exceptions in certain cases in order to ensure some fairness and uniformity.

Three important aspects set Mallada apart in the Supreme Court’s preventive detention jurisprudence. First, the Chandrachud J rightfully holds that mere apprehension of breach of law and order will not be sufficient to meet the threshold of ‘maintenance of public order’ to justify invoking preventive detention (Para 15). Second, on the judicial reviewability of subjective satisfaction by the detaining authority, the judgment falls into the exception where the court reviews if an order of detention could have been passed on the material placed before the detaining authority. Third, the Court highlights the misuse of the 1986 Act and deviates from the normal procedure by not allowing the State to file a counter affidavit.

In this article, I examine the Court’s jurisprudence on judicial reviewability of the detaining authority’s subjective satisfaction comparing Mallada to an earlier decision of the Court in Union of India v. Dimple Happy Dhakad (“Dhakad”). I also comment upon the procedure adopted by the Court in not allowing the State to file a counter affidavit and how it can benefit the Court in more efficiently deciding habeas corpus petitions against preventive detention.

Judicial Review of Subjective Satisfaction

For a preventive detention order to be passed, the detaining authority has to review the material placed before it by the police or any other agency asking for the detention, apply their mind, and then take a decision whether to authorize it. There are many judgments which state that this subjective satisfaction of the detaining authority (whether a detention order should be passed on the material placed before it) is not to be interfered with. [See Senthamilselvi v. State of Tamil Nadu, (2006) 5 SCC 676].

However, over the years the Courts have consistently pushed the boundaries of this limitation to ensure that there is some kind of fairness to the decision-making power. Therefore, decisions can be classified broadly into two types; one where the Court follows the general rule that it will not place itself in the shoes of the detaining authority to see if, in fact, detentions order could have been passed. And second, where the Court allows review of this subjective satisfaction to prevent arbitrariness and ensure that the procedure remains reasonable. For example, in a situation where a material fact (most commonly, if the detenu was already in judicial custody) is not placed before the magistrate, an order made on such a material will be quashed by the Court [See, Farooq Ahmad Bhat v. UT, J&K, 2021 SCC OnLine J&K 369]. I highlight that the judgement in Mallada, which falls in the second category of decisions, starkly differs from the Court’s approach in Dhakad.

To review or not to review

The decision in Dhakad has been criticized on many counts. Most importantly, that being a two-judge bench, it holds contrary to a three judge bench decision in Rekha v. State of Tamil Nadu [(2011) 5 SCC 244]. For our discussion, its only relevant to state that Dhakad holds: firstly, it is not illegal to pass a detention order against a person who is already in custody and about to be released on bail, and secondly, imminent possibility of release is an issue that depends upon the ‘subjective satisfaction’ of the detaining authority and as such, is beyond the scope of judicial review (Para 46). It has been argued that this pronouncement dilutes the ‘trend of heightened review’ set in cases where the detenu is already being processed under regular criminal law; and furthermore, that the requirement to specifically record satisfaction that states ‘there is an imminent possibility of release’ and ‘a grave likelihood of the person returning to the prejudicial activities’ does not interfere with the subjective satisfaction of the authority but only makes it clear that the authority had considered the issue. It is important to keep in mind that the issue that Dhakad was dealing with was that preventive detention orders were passed against a person who was already in custody and therefore, posed no threat to public order per se. The argument that an order in such case is to prevent a person being released on bail only goes to indicate the normalization of the extraordinary powers of the executive.

The judgment in Mallada does not stop by simply saying judicial review of subjective satisfaction is not possible if the authority records satisfaction to the effect that there is possibility of bail and the detenu might repeat the offence. It adds that the order stated that the detenu ‘may violate the bail conditions’ and that ‘there is an imminent possibility of him committing similar offences’. Therefore, the detaining authority, in its wisdom, had reached the conclusion that there is an apprehension of the detenu violating bail conditions and repeating similar offences. However, the Court analyzed both the grounds and stated that the conditions of bail had concluded as of April 2021 and the order was only passed in May 2021. Moreover, there had been no further incident after the bail conditions expired. It concludes by stating that the case is of clear non-application of mind and competent to be dealt under ordinary criminal law. Interestingly, the State had neither moved to apply for cancellation of bail nor appealed the order granting bail; instead, it used its extraordinary powers to preventively detain the individual for an incident in which a Court had already granted bail.

Reports have shown that the the 1986 Telangana Act is used quite often as a tool to supplant ordinary criminal procedure and deny bail to individual, even in cases where no bail application is pending before the court but there might be a possibility that the detenu might file one. A recent amendment to the Act has  further broadened its scope and the procedure made more efficient in subverting ordinary judicial process. In 2018, to get away from justifying the invocation of the Act by showing that an activity was an actual threat to public order (the only ground on which the Act could be invoked – Section 3), the Title of the Act was amended to explicitly include more categories of offences which could normally be dealt by the ordinary criminal procedure. It now includes – ‘Spurious Seed Offenders’, ‘Insecticide Offenders’, ‘Fertiliser Offenders’, ‘Food Adulteration Offenders’, ‘Fake Document Offenders’, ‘Scheduled Commodities Offenders’, ‘Forest Offenders’, ‘Gaming Offenders’, ‘Sexual Offenders’, ‘Explosive Substances Offenders’, ‘Arms Offenders’, ‘Cyber Crime Offenders’ and ‘White Collar’ and ‘Financial Offenders’. The Court in Mallada has rightly called out the abuse of law by stating the number of orders quashed by it and directed the Government to look at the challenges pending before various courts and the advisory board to ensure ‘fairness’ (Para 17).

‘Live and Proximate Link’

As stated in the beginning, there is another line of decisions where the Court looks at the material on which the detaining authority passes the detention order; for example not considering a material fact that the detenu was in custody. Similarly, the Court in Mallada makes an important point while analyzing the material placed before the detaining authority. Chandrachud J notes that the order was passed nearly seven months after the registration of the first FIR and about five months after the registration of the second FIR and was interestingly executed after one month (Para 11). The Court relies upon its decision in Sama Aruna v. State of Telangana (2018), to iterate that if there is absence of a ‘live and proximate’ link between the incident which is part of the material and the detention order, it will be equivalent to ‘punishment without trial’.

This requirement of a live and proximate link is not a recent safeguard created by the Supreme Court. The first case which acknowledged there has to be a ‘live and proximate link’ between the grounds of detention alleged and the purpose of detention was in Bhawarlal Ganeshmalji v. State of T.N., (1978). Although, the order was not quashed in that case, it stated that this link will be assumed to be ‘snapped’ if ‘there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu.’ Thereafter, relying on Bhawarlal Ganeshmalji, the Supreme Court in Shafiq Ahmad v. D.M. (1989) and P.U. Iqbal v. Union of India (1991) quashed the detention order in the absence of ‘live and proximate link, where the delay was of two and half months and one year respectively. Furthermore, relying on P.U Iqbal, the Court in Sama Aruna had authoritatively stated that a detention without the link is punitive in nature.

The underlying principle for having preventive detention law is not to punish the detenu but ‘prevent’ them from doing a crime. A judicial review, quashing an order, for ‘stale’ grounds, gives an insight behind why the executive chose to exercise the power; not to prevent a crime, but punish the detenu using an extraordinary criminal procedure. The executive is allowed to do this with impunity and an implicit sanction from the Court since it takes too much time in deciding the legality of the detention order; long enough for the Government to achieve its purpose.

A Welcome Deviation

It is important to understand preventive detention as it operates in today’s framework from a punitive aspect, because of the amount of time a person has to spend in custody while the legality the detention order is being decided. Prolonged incarceration aids the State in achieving the objective of keeping a detenu – oftentimes a political dissident – out from interacting in public life. One of the easiest ways to delay the proceeding is to take adjournments to file counter affidavits. Although the problem is not recognized, there is a judgment delivered by Madras High Court, where the Court deprecated the practice of taking multiple adjournments to file a counter affidavit by the detaining authority.

Shrutanjaya Bhardwaj, in a study, analyzed the time taken by the Supreme Court in deciding habeas corpus cases against preventive detention between the years 2000 to 2019. The study concluded that the writ was reduced to a meaningless remedy because of the amount of time taken by the Court was more than the maximum time allowed for detention in various preventive detention acts. At the end of the study, a possible remedy was mooted that the Court should decide a habeas corpus petition without a counter-affidavit from the State and solely on the basis of the documents produced before it; only in cases where the State needs to explain a delay, should a counter affidavit be allowed.

In Mallad the Court did exactly this. It lamented that even though the notice was served no counter affidavit was filed. It proceeded taking into consideration the affidavit filed with the High Court. As a result, the case was decided in a span of 45 days (Supreme Court website shows filling date as 16-02-2022); compare this to the findings of the habeas corpus study with regard to the successful petitions i.e. where the Supreme Court was the first court to grant relief (as was the case in Mallad). The Court on an average took 159 days; the shortest was 34 days and in two cases it took longer than one year to decide the petition (448 and 377 days). Therefore, in cases where the Court can decide matters solely looking at the documents, it should not insist on a counter affidavit and give repeated adjournments for the same.

Admittedly, Courts have often delivered judgments without taking a counter affidavit from the detaining authority, but only after providing multiple opportunities to them (For example, see, here and here). The present case is different because there was only one date of hearing before the judgement was pronounced and thus, only one opportunity of three weeks was given to the detaining authority. Hearteningly, the Court has deployed fierce rhetoric to make its point (‘The liberty of the citizen cannot be left to the lethargy of and the delays on the part of the state’). Of course, it remains to be seen if the Court continues with this practice.

2 thoughts on “Guest Post: Judicial Review of Preventive Detention Orders – The Supreme Court’s Progressive Judgment in Mallada v State of Telangana

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