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Writ[e] & Talk | Ep 3 | Preventive Detention, Habeas Corpus, and Delay at the Apex Court

Listen to the episode here: Spotify | YouTube

Host: Mr. Prakhar Raghuvanshi

Speaker: Mr. Shrutanjaya Bharadwaj


Mr. Prakhar Raghuvanshi: Hello and Welcome all to the third episode of ‘Writ and Talk’, the podcast hosted by Centre for Comparative Constitutional Law and Administrative Law at National Law University, Jodhpur. In this podcast we explore the fascinating world of law and legal scholarship. Today we have the pleasure of hosting Mr.Shrutanjaya Bharadwaj. Shrutanjaya is a practicing advocate in the Supreme Court specialising in Criminal Law, Constitutional Law, Administrative Law and Service Law. He did his undergraduate law degree from National Law University, Delhi and his L.L.M from Michigan Law School in 2019. In the realm of his academic work, Shrutanjaya researches and writes on issues of constitutional interpretation, judicial process, preventive detention, freedom of speech, reservation and religious freedom. In addition to that he himself hosts a podcast in a mix of Hindi and English called ‘Law Varta’ which simplifies complicated legal issues in comprehensible language. He is also a visiting faculty at National Law University, Delhi where he teaches an optional seminar course of ‘Free Speech Law’. Today this podcast will be discussing his article titled ‘Preventive Detention, Habeas Corpus and Delay at the Apex Court- An Empirical Study’ which is published in NUJS Law Review in 2020. In this article Shrutanjaya undertakes an empirical analyses of the delay in adjudication of the Habeas Corpus petitions in preventive detention cases from the period ranging from 2000 to 2019. He utilizes indicators such as time spent between detention order and final disposal, time spent at Supreme Court level and time spent in detention. The study suggests that in many cases the Habeas Corpus is reduced to a meaningless remedy, with this we welcome our speaker today.

So, welcome Shrutanjaya, it’s a pleasure to host you today. Today we’ll be talking about your article Preventive Detention, Habeas Corpus and Delay at the Apex Court- An Empirical Study’ which is published in NUJS Law Review in 2019.

Mr. Shrutanjaya Bharadwaj: Thank you so much Prakhar for having me!

Mr. Prakhar Raghuvanshi: So the very first question that we have for you is, give us a brief background to your article and perhaps also the inspiration behind it. Why did you decide to undertake this specific area, how were you exposed to this specific field and what did you find extremely intriguing in it which you thought was not covered by the available literature when you were writing the article.

Mr. Shrutanjaya Bharadwaj: So basically this article stemmed from some experiences I had while working with my former bosses Mr. Gopal Shankar Narayanan and Ms. Haripriya Padmanabadh. There was a bunch of cases I was doing with Gopal Sir at the time that were Habeas Corpus petitions at the Supreme Court and just observing the general attitude of the court towards these petitions was sort of intriguing and pushed me to undertake this exercise because. I felt that the court was not giving importance to these petitions, the kind of importance that should be given. The most important part of giving this importance is to treat them with some alacrity, we have to be quick about it. The court was, at least I felt, was casually granting adjournments in these matters and not short adjournments like 2 days to hear from the government rather a 3 week or a 4 week adjournment, just like you would do in a regular civil appeal for example. I felt that that could not possibly be right. If preventive detention is such a draconian power as they all say, not just academics but Supreme Court judges have said it repeatedly in judgements that you know preventive detention is a draconian power, it’s an exceptional power, so we should exercise it very sparingly and the government there has to be put to very strict tests when it wants to justify preventive detention. So this kind of a practice where adjournments were granted for the asking because the government advocate is not available, he is on lex in another court so please adjourn it by 4 weeks. All of this was happening and some of this was in backdrop of the revocation of Article 370 in Jammu and Kashmir. So it had great political significance, so I just thought maybe I’m wrong in sensing this and maybe what would give me a better picture, a bigger picture of the actual practice of the Supreme Court is an empirical study. This is because you can easily get misled in one or two instance but over a period of few years, 20 years for example as this paper studies. Let me give you a clear picture of what exactly the attitude of the Supreme Court is, so that was basically my motivation and that was also what I have said in the paper, that I am doing this because I want to actually test the Supreme Court’s sort of alacrity. The Supreme Court also says that we should have alacrity but do we actually have that alacrity is what I wanted to study.

Mr. Prakhar Raghuvanshi: Right so you mentioned Article 370, we actually have a very specific question to you with respect to that but since most of our listeners are also undergraduate students, so before proceeding to that specific question we would like you to elaborate a bit upon preventive detention laws in India in general and you know how the Constitution provides for it, how the Constitution would actually provide for a safeguard in those cases or how is it enabling those.

Mr. Shrutanjaya Bharadwaj: Yeah, so just to give a background, detention is of two types. First is punitive, which is to say that detention is given to you as a punishment for something you have done. The other kind is preventive, which means that you haven’t done anything but the government feels that you are about to do something wrong and therefore the government puts you in custody. Now by its very nature because it’s based on apprehension, the possibility of misuse is just immense right, because the government can at any point just say that I think and I have reasonable suspicion that this person is going to commit this offence and they are going to incite a riot or in many cases we fund they were theft cases. I conducted a follow up study for the Madras High Court and many of the cases are theft of electricity or he is just lurking around in one area, stuff like that. It is not necessarily always grave offences like murder or smuggling or foreign exchange etc. Because it is a draconian power the constitution puts some safeguards and there is a huge debate on whether preventive detention should be allowed at all, because when the constituent assembly was debating this some people had said that we don’t want such a power given to the government. It is a draconian power why do you need preventive detention. If at all, you wait for them to commit the offence and if they commit the offence, then you jail them but do not do it preventively then it is simply a matter of politics. Whoever hates whoever can use that power against them.

So, the constitution after a compromise it was decided that we will have a preventive detention power but it would be subject to some safeguards and one of the safeguards is that there must be an outer limit to how much or for how long you can detain somebody, on a preventive basis and that limit in most parliamentary laws and state laws is one year. There are a few exceptions such as Prevention of Black-Marketing Act where it is six months and one of the central laws which I think is the National Security Act where it is two years. So there is one law where it is two years, one law where it is six months but by and large most laws provide for one year as the outer limit which means that even if the detention is legal, suppose the government has done it mala fide, or on bad grounds then after one years the person is to come out, there is no question of holding him or her in custody after that one years, so that makes this alacrity even more important that in order for the exercise of the court’s jurisdiction to be meaningful it has to be quick and so quick that remedy is not rendered illusory. So, in preventive detention law, therefore the court that is both constitutional court, High court and supreme court will have the power to issue a writ called habeas corpus, it of course is Latin for produce the body and what that means is that if someone is in illegal detention, the state will sort of call them. Traditionally, our seniors tell us that habeas corpus was exercised in a very quick manner. In the sense that today you file a habeas corpus petition, allege that the state has wrongly detained me and tomorrow the court will direct you to be present in court so the state will be directed that the detainee is to be produced before the court and all arguments will happen then. So, with the detainee present in court before the judge, in some high courts it happens even now, every high court has its own rules on how habeas corpus petitions will be processed and some high courts do follow this. But the supreme court for instance, does not follow it. Now what happens is that you file a habeas corpus petition and as usual the Supreme Court will issue notice, call upon the state to reply, give it two three weeks to file reply. Then the state comes and the arguments is supposed to take place so that two-week three-week time is sort of taken for granted that at least that period will be spent, and so that’s about it. The role of the court at stepping in at the right time is very important because of the short time for which anywhere this person can be in custody. One year is not short at all, but what I mean to say is, compared against the kind of time that courts usually take with their matters, one year is nothing. Nothing gets decided in one year in our country. There is a special need for the courts to step up .

Mr. Prakhar Raghuvanshi: Thank you so much for the brilliant explanation, so before we proceed to “unclear audio”, we would also like to ask you as you mentioned that the period is taken for granted by mistake, how much do you think, where does the blame actually lie? Is it on the court? Or on the state? Where is this coming from, becoming courts are also delaying it and the more time you give to the state they take further extensions in filing counter affidavits or Additional Solicitor or Additional Advocate Generals aren’t present because they are handling other matters which are considered more important. Do you think considering the number of petitions which are filed every year, there are already a lot of cases specifically habeas corpus petitions and every year more and more of these petitions are filed. Do you think it is humanely possible for only the Supreme Court to take charge of it and dispose these petitions in time ensuring that the specific fundamental rights are not affected

Mr. Shrutanjaya Bhardwaj: Yeah, that is very important question, that is to say the question of the backlog that the supreme court already has. Yeah, I think that – I mean it is very unfortunate that the supreme court is under that backlog and humanely really it is not possible for the supreme court to sort of without compromising on other cases to give priority to these cases. But I feel like with these cases that should be a non-question and it is very obvious that habeas corpus matters have to be given that priority at whatever cost. The issue is that there are so many human rights matters, constitutional matters of grave importance pending before the court and the court struggles o find time to manage these matters and this is of course a larger discussion on how should we reform the supreme court. Should there be a separate court of appeals and should the supreme court only be hearing Constitutional Law matters. That is of course a larger discussion to be had. But I am sort of unwilling to yield to that position that till that happens the supreme court is justified in dilly dallying these important petitions and I would say that I really don’t care how much pendency you have, there are some matters that deserved to be heard at the top of the list, which are bail matters, habeas corpus matters, sometimes matters of fundamental rights that are urgent in the sense that rights are being violated every day. They have to be heard, you cannot push them back and the supreme court has always recognised this at least in these judgements. So that is far as the second part of your question is concerned. As far as the first part is concerned, as to who does the blame lie with? My own sense is that the government and the court, I would always place it more on the court. There are some matters that deserve to be heard at the top of the list, which are bail matters, habeas corpus matters, sometimes matters of fundamental rights that are urgent in the sense that rights are being violated every day. Those matters have to be heard. You can’t push them back. And the Supreme Court has always recognized this, at least in its judgments. Once again, so as far as the first part is concerned as to who does the blame lie with my own sense is that it lies both with the government and the Court. I would always place it more on the Court. The reason is that you can legitimately expect the government to be perhaps not legitimately, but you can expect the government to be a political entity, driven by its own politics. And every government is likely to be like that. But the Court especially is supposed to act as a neutral arbiter and its allegiance has to lie only to the Constitution.

Now, it is not enough for the Supreme Court and the High Court to just say that yes, our allegiance lies with the Constitution. The problem is that judges hesitate to be strict about it. And what we really need is strict judges in matters like these who, I mean, the government lawyer may ask for time on any excuse say, I am not well, the SG has to argue this matter, The Attorney General has to argue this matter, Attorney General is busy before a constitution bench in another court. These sound like very important excuses because the state has decided that this matter is so important that the Attorney General should argue it. Will the Court force a junior lawyer who has appeared in court to argue that matter? Because remember, every time the government is waving that flag of national security or public order, then this man, if you let him out, he’s a terrorist, he’s this, he’s that, and he will kill people, et cetera, et cetera. That’s what they’re saying.

So, the blame in that sense, I would always pin more on the Court because they're not strict and these kinds of excuses still fly. And I’m not particularly excited about this. I would rather that the Court would come down heavily on this practice of asking for adjournments in matters like these. And sometimes the Court does say that sometimes the judges are fair in these matters and they say that, look, this is a matter of personal liberty. You ask the Attorney General or the Solicitor General or whoever has to appear, additional Solicitor General, whoever, just ask them to come at 02:00 today, we’ll fix the matter at two. So that sort of takes care of both concerns. And if that is not possible, then they say then you send somebody else. But this matter has to be argued today. That’s the kind of alacrity we want from our constitutional courts in these matters. And I think that has to be routine. So, unless that is achieved, I would continue to blame the judicial institution because they are the ones who are the protectors. The government is also supposed to be a protector, but we all know how that works.

Mr. Prakhar Raghuvanshi: So, you also mentioned about judges not being strict enough. On that point, In the last three years, we have had a Chief Justice Sharad Arvind Bobde who said while hearing a petition that you don’t come for 32, you go under 226. At the same time, right now you have someone like Justice Chandrachud who has mandated that we’ll hear ten bail matters every day. How much do you think the role of the Chief Justice can be in this specific instance? And what can we expect if the Chief Justice is labelled like a liberal Chief Justice?

Mr. Shrutanjayaa Bhardwaj: Yeah, so I personally don’t believe in putting these labels to judges because I really feel that judges decide cases individually based on those specific facts. It’s a matter of perhaps you can sort of classify judges broadly as less willing to interfere with government action. In other words, more deferential to the government and less deferential to the government because that’s a matter of philosophy, really. And that’s not really a matter of politics, so to speak. And I am willing to sort of engage in that kind of a labelling, but otherwise, liberal, conservative, et cetera, is always inaccurate. And you’ll always find judges who are labelled as liberal and who will give you judgments that just don’t explain that label. And the other way around, the conservative judges giving sort of “liberal” judgments.

So as far as the role of the Chief Justice is concerned, it is very important for sure, if the Chief Justice can place bail matters on top of the list every day, then he can certainly also do something similar with habeas corpus matters. And really, there’s no distinction between these two, both are personal liberty issues. And if at all habeas corpus is more serious because this is preventive; in bail at least there's an allegation that this person has done something. But in preventive detention, there is not even an allegation. So that is, yes, 100%, the Chief Justice can step in and do something about it. But about for example, you mentioned Justice Bobde and his comment that we are trying to discourage Article 32 petitions go to the High Court, et cetera. Justice Chandrachud is also like that. In fact, on this principle that Supreme Court will not entertain 32 because High Court is also available. Most judges are on board with this idea.

Sometimes, of course, all judges will agree that when it’s a matter of urgency and when there is a justifiable cause for the petitioner to not have approached the High Court, then, yes, we will hear the petition. But most judges have that philosophy, I don't agree with the philosophy, and I think once again, the Court is moving away from its original function, which is that it has to protect rights. I mean, as you know, the Supreme Court has in its early years in those Constitution bench judgments, many of them, court has repeatedly said that Article 32 uses the word guarantee.

So, the right to move the Supreme Court is guaranteed. And that’s really the only fundamental right that uses that word. And the debates will show you how importantly everybody thought of this, right? So, to say that now, to say that even though those judgments say, we can’t send you to high courts, we will anyway send you to high courts, because this is a phrase that judges use much water has flown down those judgments, as if judgements can be just watered down, the judgements that have been given by six judges. This I don’t agree with, but just on the point that one judge or the other judge, I think all judges have this philosophy, and it is unfortunate and I think everybody should step up as far as this is concerned.

Mr. Prakhar Raghuvanshi: Correct actually, I think recently Justice Chandrachud also gave a similar reasoning while dismissing a 32 petition or directing the petitioner to approach the High Court.

Mr. Shrutunjaya Bharadwaj: Ya, no, but you see, the reason all of them do this is, also, there is a justification to that, once again, we come to the backlog, because the Courts are so, the Supreme Court atleast thinks that it’s so dying in the burden of SLP’s, Civil Appeals and Criminal Appeals, that it does not have time to decide these fundamental right matters. But, the assumption is that if we send you to the High Court, the High Court is freer, High Court will have more time, and therefore the High Court will have less backlog, so the burden will be lesser on the High Court. But, I feel that, that is not always right. Sorry, sorry, I interrupted you.

Mr. Prakhar Raghuvanshi: It ultimately boils down to the larger question of backlog and reforms at the Supreme Court and perhaps other Constitutional Courts as well.

Mr. Shrutunjaya Bharadwaj: Yeah, yeah, that’s right.

Mr. Prakhar Raghuvanshi: So, we’ll proceed to our article 370 question. So, your article basically covers 64 cases from 2000 to 2019 and we know that post revocation of Article 370 there have been floodgates of habeas corpus petitions which again every day we see some or other article saying these are not been heard. Right? Would you say, from an outsider’s perspective, as a student of law, in our limited access to Court, we are unable to decipher that whether this delay in habeas corupus is actually more visible today than pre-2019. From an outsider’s perspective, who doesn’t have similar access to Court as a practising lawyer might have, citizens generally feel that yes, this is true post-2019, the delays are becoming more clearer. Would you agree to that being a practicing advocate yourself?

Mr. Shrutunjaya Bharadwaj: I am not sure, I haven’t felt that sort of increase, but I think the Jammu-Kashmir context is a very specific one and I would certainly agree as long as that context is concerned the performance of our constitutional Courts has been very bad. They have not lived up to the expectation. I think for a long time. The Jammu & Kashmir High Court was not even hearing matters because its like covid hit and then the High Court just started adjourning all matters on block, even habeas corpus matters are not been heard. So it is a situation where you have just been picked up from your house, placed under house arrest, or under some other kind of arrest and just on a preventive sort of an idea and now you have nowhere to go to challenge this kind of preventive detention order, so, your detention may be right or wrong, makes no difference because there is no remedy. Ya, I can’t say overall it has increased or decreased but in the Jammu-Kashmir context, I think there is enough research and writing now to show that, in that specific context, we did a very bad job.

Mr. Prakhar Raghuvanshi: So, also considering that constitutional Courts are not living up to the expectation, not just expectation , I would not say expectation, not doing their basic duty, if we can out that into as simple terms as possible. So you have talked about providing for monetary compensation, right, as a relief against preventive detention and the degree of monetary compensation will always remain subjective.

Mr. Shrutunjaya Bharadwaj: Yeah

Mr. Prakhar Raghuvanshi: In most cases, the Court granted the compensation, the compensation amount is barely anything that can act as a deterrence to the action of the state machinery, right. So, would it be fair to say that constitutional torts neither act as punitive measure nor as deterrent measure where the Respondent is the State?

Mr. Shrutunjaya Bharadwaj: Ya, I think this is a very important question and really it boils down to whether the State is bothered about this kind of a relief at all and therefore, I think, it is not just enough to say that the state will pay out of the ex-chequer. I think at some level you have to fix responsibility on the officials, personally, who are concerned and this will require us to sort of break away from the traditional rules of tort law, which are of vicarious liability, so the State will always be responsible and that the servant who is acting in course of his duties, is not liable, the master is liable. That principle we will have to break away from when it is a matter of fundamental rights and maybe we will have to develop a stricter regime, perhaps tort law is not even adequate for it, perhaps we need a statute which lays down that if you arrets somebody or detain somebody illegally, these are the consequences, we will start disciplinary inquiry against you. If the Court finds that they did not have reasonable basis to pick up this person and if the Court suggest it then we will start disciplinary inquiry against you. I think that’s the kind of deterrent we will ultimately need or to say that that specific officer will have to pay the compensation, it won’t be given out of the States ex-chequer, so, unless that liability is made a bit more personal than just saying that the State has to pay, you are right, I think, there will be very little deterrence.

Mr. Prakhar Raghuvanshi: But even if we fix that liability let’s say to the specific officer concerned, don’t you think in cases where officers are called from CM’s office or Home Ministry, when they receive a call from higher officials, they won’t be willing to say no to them, so, ultimately it will boil down to an officer who will be perhaps losing his job or having a bad entry in disciplinary proceedings in cases where the State could have paid the compensation.

Mr. Shrutunjay Bhardwaj: There are rare few exceptions where its political and yes, in those situations it will become extremely complicated. How do you fix liability on this officer when he was just or she was just discharging an order? But I guess, I mean, these are all details to be figured out in the law that will hopefully, come one day. And I suppose, if the officer wants, he/she is at liberty to disclose the name of whoever gave him/her the orders, and then the court can always, sort of, mould the relief in that manner.

Mr. Prakhar Raghuvanshi: Right, so we actually have two, two more questions. The last one is on the last study you have mentioned. Before that, one specific thing: How much do you think is the role of lower courts and of course, the High Courts, including High Courts, in this specific area, preventive detention cases, Habeas Corpus petitions. Is there something lacking from the High Courts which can actually provide for better relief or ensure that personal liberty is not hindered as much as it is hindered at this particular point of time?

Mr. Shrutunjay Bhardwaj: Yeah, in fact, I mean, if you compare all the High Courts generally, and I am currently, sort of just starting to work on the other High Courts also, it seems like, I am making a broad brush statement which may be proved later, to be wrong by the data, but my sense is that High Courts are generally better in, in performing these roles and some High Courts specifically will decide it on a, hear it on a, day-by-day basis, and dispose it of very quickly. Some other High Courts are not doing very well. But as a general statement perhaps, I would say whatever is true of the Supreme Court is also true of the High Courts. They should be careful while granting adjournments. They should not treat it like other matters. Like, for instance, generally, if I, if I, tell you about other matters, like service matters, or writ petitions that I ordinarily do in the Delhi High Court, those will get adjourned by 5 months, 6 months, 4 months, if you ask for a short date, 2 months, like that. Unless it’s like, a really pressing issue, in which case, the judge will really struggle to find a slot for you in the next 4 weeks or something. So, that's the state of the Delhi High Court because the pendency is so much and the judges are really, I mean, burdened. They are very hard working and despite that, I mean, the disposal rate is not, is not, so high because the pendency is huge and like that, I am sure there are busy High Courts and there are relatively less busy High Courts. Whatever it is, I think there has to be some sort of an administrative call to be taken by the Chief Justice, like you mentioned, saying that, yes when such a matter comes before us, it will be given priority and this is the way in which it will be given priority. Either it goes to a special bench, or if it doesn't go to a special bench, it goes before a regular bench, then it goes at the top of the list and there is a rule that adjournments will not be granted for more than one week. You see, there are some procedural, (coughs) sorry, there are some procedural aspects to this also. For instance, the Supreme Court has earlier held that no counter affidavit, that is, no reply should be sought from the State in Habeas Corpus matters. They say that because anyway the grounds of detention have already been supplied to the detinue and the detinue is saying that these grounds are not adequate. That's the ground on which the detinue comes to the court, so there’s no need to really get a counter affidavit because anyway the State is prohibited from raising new grounds at this stage because they have detained him on those specific grounds which have already been furnished in court. So, this practice of asking the State to, you know, issue notice, file a reply in 4 weeks, this can be dispensed with and therefore just, just by dispensing with this the court can save a lot of time. So, these are some procedural things on which the court should not be pedantic. They should be liberal about it and say that “yeah, reply is not needed or adjournment, if you are seeking, that's fine, come back tomorrow, not after 3 weeks.” So, yeah.

Mr. Prakhar Raghuvanshi: Right, I think this is a general hesitancy in even in lower courts while hearing bail matters. They are not open to the idea of granting bail generally. In most cases, the detinue or the accused has to approach the High Court to get bail, generally they don’t get bails from the district courts. So, we'll proceed to the question on your Madras High Court study. So, you studied Supreme Court specifically and Madras High Court, did you find any specific difference or would you say broadly, the issues, which are at concern here are similar in the Madras High Court as well as the Supreme Court or are there any significant differences which are worth mentioning, and based on which specific reforms or specific solutions might be required, in, let's say one court and not in the other court?

Mr. Shrutunjay Bhardwaj: Yeah, no I would say that they are broadly on the similar lines, and one interesting observation in the Madras High Court study was that many petitions were dismissed as infructuous because what the government would do is, they would detain you today, you would file a Habeas Corpus, that Habeas Corpus is adjourned by a month and overall, 2 months from the date of your detention, the State will release you. So, by the time the matter comes back before the High Court, the government advocate will stand and say, “My Lords, the detinue has already been released so this matter has become infructuous.” The court will say “Right, it has become infructuous.” Many, many cases we found of this nature. So, the government nabs you, puts you in custody for 2 months and then lets you out and then there's I mean, there's no consequence to that. So that is a shocking pattern we found in many cases, that’s one, and it gives you, I mean, if anybody does this empirical study, it gives a message to the State that if you want to detain anybody, just detain them and release them after 2 months, and you know, because the High Court is anyway, statistically not doing anything before that. That is one aspect that came out of that study. The other was the increasing use of the Gundas Act. See, out of all the results that we had studied, all the judgements, most, I would say 90-95%, I forget the exact percentage, but most were cases arising from the Gundas Act. Now, if you're aware, this same act or a similar act exists in 7-8 states and they're called bootleggers, pirates, gundas etc. etc. There are some 20 names in the name of the legislation and that's the name of the legislation, and what it deals with is, the State Government can declare that you are a gunda, for instance, and after the State Government declares, that declaration is a preventive declaration.

Mr. Shrutanjaya Bharadwaj: The other was the increasing use of the Goondas Act. Out of all the results we had studied and all the judgements, most, I would say, 90-95%, were cases arising from the Goondas Act. If you are aware, the same Act or a similar Act exists in 7-8 states and they are called Bootleggers, Pirates, Goondas etc. There are some twenty names as the name of this legislation and what it deals with it is [that] the state government can declare that you are a goonda, for instance, and after the state government declares it, the declaration is a preventive declaration. We [the state] think that you are going to commit some offences because you have been already accused of some other offences in the past. So, we think that your character is such, that now you are a goonda. So, now they will, sort of, declare you an assigned offender, a pirate, a bootlegger or a goonda and slap that on you and they will put you in custody.

And then, the Madras High Court is allowing these petitions in most cases, unlike what we found in Supreme Court, where there wasn’t such a clear pattern that most petitions are allowed or most petitions are dismissed. In Madras High Court, most petitions are allowed. The same kind of an order is passed, saying that the standards under the Goondas Act are not been met and [you] have just picked somebody up for one single instance of stealing electricity in the past and you have declared him to be a goonda and this is not fair and therefore, the detention is quashed. And they do it after six or four or eight months or something like that and once again, it is meaningless, as anyways, the total period of illegal detention was one year. So, what they have achieved is to cut it short by four months or so.

So, those two were the glaring findings from that study- one, is this aspect of Goondas Act and the other is the aspect that I mentioned earlier.

Mr. Prakhar Raghuvanshi: So, the first issue that you mentioned, about the state releasing the detenus in two months, do you think in those cases, perhaps, the Court should have gone to claim a monetary compensation, suo moto?

Mr. Shrutanjaya Bharadwaj: A hundred percent! These are the cases where you really read the order and I don’t know how the case actually played out in court, because what you read in order is just like a compromise and court will never put down its own frustration in the order, always; I mean, sometimes they do it, but that is really an exceptional case when the judge really [loses]. But, most often, they are restrained and they will write restrained language in the order. The only question is how is it that this is happening in so many cases and the Court is not, sort of, coming down heavily on it, even though, you may think that it has been only two or three months since this person was detained, but that’s a lot of loss of personal liberty and once you come out, that stigma stays with you forever because everybody, suppose, you are from a village and in villages, I mean, the level of privacy in Indian urban areas is taken seriously, but in rural areas, not so much. So, you go there and everybody knows that this person was in jail for three months and that has long-term implications. So, yes, I hundred percent agree that the Court should have granted monetary compensation, suo moto and this is a matter of Article 21, and a strong message has to be sent out in these cases.

Mr. Prakhar Raghuvanshi: So, we are at the end of the podcast. One last question because you have written on this specific topic and I’d mention again that most of our listeners are undergraduate students of law- would you recommend any specific readings on preventive detention, which could include empirical studies or just theoretical understanding, just to develop their basic understanding?

Mr. Shrutanjaya Bharadwaj: I would suggest that you generally start off with a good Constitutional Law commentary, that covers both [Articles] 21 and 22, in detail. I feel that [Articles] 21 and 22 can’t be divorced and there are many writings on [Article] 22, specifically, but I feel that these are so deeply interconnected that you must first read everything that the Court has said about [Article] 21 and its importance, what is going on and whether the court really walks the talk, in these situations. One thing that immediately comes to my mind is with regard to Madras High Court, specifically and the use of the Goondas Act, that I mentioned.

Ms. Akila Ramalingam, who used to be my teacher in law school; she taught me Jurisprudence but now she is practicing in Chennai- she also did a study on the Goondas Act, specifically and why it is being used so much. And that is really a fascinating study- she discusses how widespread the use is and exactly why it is so problematic, some fascinating findings and recently there was a judgement in the Madras High Court, where they granted compensation to the detenu and it appears that a lot of information from her paper was used, but inadvertently or otherwise, she was not cited in that judgement, but this is a really good paper and I would suggest that many more people should take up the cause of preventive detention, bail, other matters of rights and really ask these tough questions to courts.

Students have this liberty to do, as once they start practicing and once, they tie down to their career, they will keep thinking that “If I write this, what will be the implication to my organization, etc.”. While being students, you are much freer and I feel that if you really want to get into research and writing, this is a great area, as there is so much research to be done, so much to examine, so much to put the courts to answer to. I would recommend this area and empirical research is unlimited; you can keep searching and finding more information and everything you find will be valuable for the community, it will help us move forward and we will all have to keep criticizing the court, so that it knows what its flaws are. Otherwise, the court is too busy, there is no time for self-reflection of that sort, of a prolonged sort, that researchers can do.

Mr. Prakhar Raghuvanshi: Thank you so much. I think students will benefit a lot from that. It was a great session; it was lovely to host you and it was extremely enlightening, at least, I can say for myself. Once again, thank you so much for joining us.

Mr. Shrutanjaya Bharadwaj: Thank you so much, Prakhar, for having me. It was really an enjoyable conversation for me, as well.


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