Detention without reason should be compensated

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 07.11.2022 Pronounced on : 14.11.2022 CORAM: THE HONOURABLE MR. JUSTICE M.S.RAMESH AND THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH H.C.P(MD)Nos.1710 & 1206 of 2022 and Crl.M.P(MD)No.12692 of 2022

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Introduction

Of all the things a system should fear, Complacency heads the list. The case on hand gave us a wake-up call and made us question ourselves as to whether we have become complacent and conditioned while dealing with preventive detention cases. Having got that call from within, we decided to shake up and wriggle out of the complacency and do a reality check.

Prelude

Preventive detention, commonly alluded to as the jurisdiction of suspicion, is constitutionally tolerated under Article 22(4) of the Constitution of India. It hardly requires any reiteration that preventive detention is essentially a freckle on the Constitutional canvas, and as Patanjali Sastri, J. reminds us, “This sinister looking feature, so strangely out of place in a democratic Constitution which invests personal liberty with the sacrosanctity of a fundamental right and so incompatible with the premises of its Preamble is doubtless designed to prevent an abuse of freedom by anti-social and subversive elements which might imperil the national welfare of the infant Republic.” 

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We notice that the term “detenue” has been defined in the relevant glossary in the Prison Statistics in India Report to mean “Any person detained in prison on the orders of the competent authority under the relevant preventive laws”.

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17. Way back in 2009, a Division Bench of this Court was confronted with a similar situation in Irusammal v. State reported in 2008-2-LW (Crl)1433, concerning a bootlegger under Act 14 of 1982. The Division Bench took note of the callous manner in which detention orders were being passed and observed: “The reason for detaining a person in these Acts is interalia to safeguard the security of the State or maintain public order. This alone justifies executive detention without trial. When persons are detained on this ground the orders should be passed with extreme care and vigilance. But if orders are passed which beg to be quashed, then we may conclude that the authority is casual or careless. If so, even one hour of such detention is neither morally acceptable _______________ Page No.20 of 56 https://www.mhc.tn.gov.in/judis VERDICTUM.IN H.C.P(MD)Nos.1710 & 1206 of 2022 nor legally sustainable and may even justify the award of compensation.” The Division Bench then proceeded to set out the usual grounds of challenge, which have been set out supra in paragraph 12, and observed: “The attitude of the Authority is inexplicable. On an earlier occasion, we had asked the learned Additional Public Prosecutor the reason for this. The learned Additional Public Prosecutor submitted today that a note has been circulated to the Sponsoring Authorities and the Detaining Authority regarding the decisions of this Court so that such mistakes are avoided. We express our appreciation of this prompt action of the learned Additional Public Prosecutor. (vii) There is of course, the possibility of genuine errors creeping in, which are beyond the control of the Detaining Authority or the Sponsoring Authority. Sometimes it may be a purely legal issue which results in quashing of the detention order. That is understandable, for after all no one is _______________ Page No.21 of 56 https://www.mhc.tn.gov.in/judis VERDICTUM.IN H.C.P(MD)Nos.1710 & 1206 of 2022 infallible. But these mechanical, recurrent, repetitive defects should definitely be avoided. We, in fact, asked the learned Additional Public Prosecutor whether the percentage of orders of detention being quashed is not very high. We do not have the statistics. But surely it will be more than 50% and not less. The State incurs a huge expenditure in this whole process of passing orders of preventive detention and detaining persons under the relevant Acts. Therefore, we expect the Detaining Authority and the Sponsoring Authority to be aware of the views of the Court before passing their orders of detention. That would result in saving of time and energy of the Court, time and energy of the officers concerned and in fact, more importantly saving of the funds of the exchequer. Above all, the protection of Article 21 of the Constitution of India cannot be whittled away casually.”

17. Way back in 2009, a Division Bench of this Court was confronted with a similar situation in Irusammal v. State reported in 2008-2-LW (Crl)1433, concerning a bootlegger under Act 14 of 1982. The Division Bench took note of the callous manner in which detention orders were being passed and observed: “The reason for detaining a person in these Acts is interalia to safeguard the security of the State or maintain public order. This alone justifies executive detention without trial. When persons are detained on this ground the orders should be passed with extreme care and vigilance. But if orders are passed which beg to be quashed, then we may conclude that the authority is casual or careless. If so, even one hour of such detention is neither morally acceptable _______________ Page No.20 of 56 https://www.mhc.tn.gov.in/judis VERDICTUM.IN H.C.P(MD)Nos.1710 & 1206 of 2022 nor legally sustainable and may even justify the award of compensation.” The Division Bench then proceeded to set out the usual grounds of challenge, which have been set out supra in paragraph 12, and observed: “The attitude of the Authority is inexplicable. On an earlier occasion, we had asked the learned Additional Public Prosecutor the reason for this. The learned Additional Public Prosecutor submitted today that a note has been circulated to the Sponsoring Authorities and the Detaining Authority regarding the decisions of this Court so that such mistakes are avoided. We express our appreciation of this prompt action of the learned Additional Public Prosecutor. (vii) There is of course, the possibility of genuine errors creeping in, which are beyond the control of the Detaining Authority or the Sponsoring Authority. Sometimes it may be a purely legal issue which results in quashing of the detention order. That is understandable, for after all no one is _______________ Page No.21 of 56 https://www.mhc.tn.gov.in/judis VERDICTUM.IN H.C.P(MD)Nos.1710 & 1206 of 2022 infallible. But these mechanical, recurrent, repetitive defects should definitely be avoided. We, in fact, asked the learned Additional Public Prosecutor whether the percentage of orders of detention being quashed is not very high. We do not have the statistics. But surely it will be more than 50% and not less. The State incurs a huge expenditure in this whole process of passing orders of preventive detention and detaining persons under the relevant Acts. Therefore, we expect the Detaining Authority and the Sponsoring Authority to be aware of the views of the Court before passing their orders of detention. That would result in saving of time and energy of the Court, time and energy of the officers concerned and in fact, more importantly saving of the funds of the exchequer. Above all, the protection of Article 21 of the Constitution of India cannot be whittled away casually.”

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21. In Rekha v. State of T.N., reported in (2011) 5 SCC 244, the Supreme Court pointed out that whenever an order under a preventive detention law is challenged, one of the questions the Court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present cases, the relevant provisions in the Penal Code were clearly sufficient to deal with the _______________ Page No.27 of 56 https://www.mhc.tn.gov.in/judis VERDICTUM.IN H.C.P(MD)Nos.1710 & 1206 of 2022 situation. Consequently, the detention orders are ex-facie illegal and constitute a clear case of abuse of statutory power. As was pointed out by Krishna Iyer, J. in Bhut Nath Mete v. State of W.B., reported in (1974) 1 SCC 645, which was a case concerning preventive detention : “An administrative order which is based on reasons of fact which do not exist must therefore be held to be infected with an abuse of power.”

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22. Faced with this situation, must the Courts sit back and express helplessness? Even prior to the coming into force of the Constitution, this Court had clearly and unequivocally declared its role as a sentinel on the qui vive guarding the citizen from the excesses of the executive. In A.K Gopalan v. District Magistrate, Malabar [AIR 1949 Mad 596] Subba Rao, J. (as he then was) had the occasion to observe: “Now that we have attained freedom, it is the sacred duty of this court to see that no citizen of this province, whether he is rich or poor, whether he belongs to this or _______________ Page No.28 of 56 https://www.mhc.tn.gov.in/judis VERDICTUM.IN H.C.P(MD)Nos.1710 & 1206 of 2022 that political persuasion, is illegally detained for one minute. Of course, this is subject to the restrictions imposed on the personal liberty of the subject by the legislature in its supreme wisdom having regard to emergent situations. But the executive should not be allowed to overstep the boundaries fixed by the Legislature and must prove that the action is strictly within the spirit and the letter of the law. No provision of the statute restricting the liberty of the citizen can be overlooked and no breach of any provision thereof can be condoned on the ground of administrative convenience or pressure of work.” 23. The Supreme Court echoed a similar sentiment in Arnab Goswami v. State of Maharashtra reported in (2021) 1 SCC 802, when it observed: “Our courts must ensure that they continue to remain the first line of defence against the deprivation of the liberty of citizens. Deprivation of liberty even for a _______________ Page No.29 of 56 https://www.mhc.tn.gov.in/judis VERDICTUM.IN H.C.P(MD)Nos.1710 & 1206 of 2022 single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.” 24. In Ummu Sabeena v. State of Keralareported in(2011) 10 SCC 781, the Supreme Court reiterated this duty when it said: “This facet of the writ of habeas corpus makes it a writ of the highest constitutional importance being a remedy available to the lowliest citizen against the most powerful authority (see Halsbury's Laws of England, 4th Edn., Vol. 11, para 1454). That is why it has been said that the writ of habeas corpus is the key that unlocks the door to freedom (see The Common Law in India, 1960 by M.C. Setalvad, p. 38).” As persistent judicial appeals to the authorities continue to fall on deaf ears, the time has come to devise new methods to secure implementation of the orders of this Court and the Supreme Court and to ensure that the rule of law is not reduced to a charade. We are constrained to do so on _______________ Page No.30 of 56 https://www.mhc.tn.gov.in/judis VERDICTUM.IN H.C.P(MD)Nos.1710 & 1206 of 2022 account of the fact that detention orders are being routinely set aside by the Courts and that too on the very same grounds/defects that have been expressly pointed out in Irusammal. The irresistible inference is clearly one of extreme callousness. It is shocking that even after thirteen years, nothing has changed. Taking a cue from the observations made in Irusammal, the time has now come for this Court to explore the possibility of awarding damages in cases where detention orders are set aside after finding that it was invoked on wholly extraneous and irrelevant grounds, which amount to a conscious abuse of power. 25. This approach can be seen in Sengodan v. State of Tamil Nadu (2010 4 MLJ 1165), in which a claim for compensation for wrongful detention under Act 14 of 1982 was dismissed by a learned Single Judge of this Court, upholding a claim of immunity under Section 16 of Act 14 of 1982. The Division Bench upheld the order on appeal. However, in N. Sengodan v. State of T.N. reported in (2013) 8 SCC 664, _______________ Page No.31 of 56 https://www.mhc.tn.gov.in/judis VERDICTUM.IN H.C.P(MD)Nos.1710 & 1206 of 2022 the Supreme Court set aside the order of the Madras High Court and awarded Rs. 2 Lakhs as compensation, holding that the State had abused its power citing the observations of Krishna Iyer, J. in Bhut Nath Mete, referred supra. 26. Callous indifference in passing detention orders coupled with total apathy towards the violation of the fundamental right guaranteed under Article 21 would clearly constitute a “constitutional tort”. The concept was explained by the Supreme Court in MCD v. Uphaar Tragedy Victims Assn. reported in (2011) 14 SCC 481, wherein it was observed that constitutional courts can, in appropriate cases of serious violation of life and liberty of the individuals, award punitive damages, when an intentional doing of some wrongful act by the State was established. Ignoring the law, and passing detention orders that only beg to be set aside when challenged before this Court under Article 226 demonstrates a clear and wilful refusal of the State to follow the law. _______________ Page No.32 of 56 https://www.mhc.tn.gov.in/judis VERDICTUM.IN H.C.P(MD)Nos.1710 & 1206 of 2022 This is, therefore, a clear case of conscious abuse of statutory power. It must follow that an irrepressible urge to use preventive detention must be now be sternly dealt with by imposing punitive damages on the State. In Rudul Sah v. State of Bihar [(1983) 4 SCC 141], the Supreme Court has pointed out that such compensation is a palliative for the unlawful acts of instrumentalities of the State ostensibly acting in the name of public interest and which present, for their protection, the powers of the State as a shield. We, therefore, hold that, while quashing preventive detention orders, if the Court finds that the detention was wholly frivolous or was based on non-existent or irrelevant grounds, the consequence would be that the State would be mulcted with punitive damages for depriving the liberty of the subject, without any lawful justification. 27. At this juncture, it is necessary to call the attention of the State to the following observations of the Supreme Court in State of Punjab v. Jagdev Singh Talwandireported in(1984) 1 SCC 596: _______________ Page No.33 of 56 https://www.mhc.tn.gov.in/judis VERDICTUM.IN H.C.P(MD)Nos.1710 & 1206 of 2022 “This Court has observed in numerous cases that, while passing orders of detention, great care must be brought to bear on their task by the detaining authorities. Preventive detention is a necessary evil but essentially an evil. Therefore, deprivation of personal liberty, if at all, has to be on the strict terms of the Constitution. Nothing less. We will utter the oft-given warning yet once more in the hope that the voice of reason will be heard.”

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40. As indicated in the prelude to this order, it is high time that this Court starts imposing compensation on the State whenever this Court interferes with the detention order, in deserving cases. The learned Additional Public Prosecutor opposes imposition of compensation by pointing out to Section 16 of The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber Law Offenders, Drug Offenders, ForestOffenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexualoffenders, Slum-Grabbers and Video Pirates Act, 1982. This submission _______________ Page No.42 of 56 https://www.mhc.tn.gov.in/judis VERDICTUM.IN H.C.P(MD)Nos.1710 & 1206 of 2022 made by the learned Additional Public Prosecutor does not hold water since the protection is given under the said provision as against imposing personal liability for action taken in good faith. However, compensation can be imposed in cases of this nature whenever this Court finds that there is an infraction of Article 21 of Constitution of India. To substantiate the same, the judgment of the Apex Court in D.K.Basu vs. State of West Bengal reported in (1997) 1 SCC 416 will be of relevance. The Apex Court made it very clear that whenever there is infringement of the indefeasible rights guaranteed under Article 21 of Constitution of India, this Court has the power and jurisdiction under Article 226 of Constitution of India to impose compensation and to protect the fundamental rights of the citizen. This has to be done in cases where the Courts find that there has been misuse of the preventive detention law against a detenu who could have been proceeded against under the available penal laws. _______________ Page No.43 of 56 https://www.mhc.tn.gov.in/judis VERDICTUM.IN H.C.P(MD)Nos.1710 & 1206 of 2022 41. In the result, (i) H.C.P(MD)No.1710 of 2022 is allowed and the order of detention in M.H.S.Confdl.No.85 of 2022 dated 19.09.2022, passed by the second respondent is set aside. The detenu, viz. Jeyaraman, S/o.Kanagamani, aged about 58 years, is directed to be released forthwith unless his detention is required in connection with any other case. (ii) There shall be a direction to the first respondent to pay a sum of Rs.25,000/- as compensation to the detenu for having violated his right guaranteed under Article 21 of Constitution of India. This compensation shall be paid within a period of four weeks from the date of receipt of a copy of this order.