On Preventive Detention and the Need for a Compensatory Framework in Constitutional Tort Cases.

Dhruv Singhal

A recent judgment of the Madras High Court, Sunitha v. Additional Chief Secretary to Government &Ors. (“Sunitha”) highlighted the callous state of affairs with regard to the proliferation of preventive detention orders on frivolous grounds.The Bench, which was dealing with two habeas corpus petitions, came down heavily upon the State for resorting to its extraordinary powers to detain a person, under the Tamil Nadu Goondas Act, 1982, in cases which could easily have been dealt with under ordinary law. In doing so, the Court reiterated the precept that preventive detention is an exception to normal procedure and must only be exercised with caution.

Deviation from the Normal Procedure

The Indian Constitution, which assures its citizens the right to life and personal liberty as well as against arbitrary arrest and detention under Article 22 only mentions preventive detention as a sort of proviso to this Article,going on to enlist safeguards in the procedure of detention. 

However, not only does the Court look at the constitutional costs of this draconian regime, but it also states the practical costs. In 2009, a Division Bench of the Madras High Court in Irusammal v. State noted that not only do ill-thought detention orders compromise the State’s commitment to Article 21 safeguards, but also impose on it huge costs in terms of the expenditure undertaken for detaining such persons as well as the time and energy of the Court and the officers concerned. 

Not stopping at the individual cases, the Court in Sunitha goes on to analyse the data in the ‘Prison Statistics India Report’, provided by the National Crime Records Bureau (NCRB) which gives Tamil Nadu the unenviable distinction of being the state with the highest number of persons kept under preventive detention for a whole decade (2011-2021). In 2021 alone, the state reported 1,775 persons being detained. 

Analysing the records of the statistics of cases under the Goondas Act, 1982 considered by the Madurai Bench of Madras High Court in 2022, the Bench inferred that not a single detention order filed had been upheld [1]. Therefore, all orders passed under the Act to detain a person could easily have been dealt with under ordinary law.

It is commendable that the Court has not absolved itself of its responsibility in acknowledging its contriteness in being part of a system where by the time the habeas corpus petition is taken up, the detenue has already spent five to six months in detention. 

It is indisputable, thus, that there is a pattern to this abuse of preventive detention provisions in the law, and that the Court, as the upholder of people’s rights, must intervene. Remedies like the grant of interim bail to the detenue in cases of gross misuse of these provisions and the setting up of special courts to deal with habeas corpus petitions may provide some succour.It is equally important that the authorities be required to give in writing concrete reasons as to why ordinary law was insufficient to deal with a situation while passing orders to detain a person. These reasons must be tested on the touchstones of ordinary prudence, proximity and proportionality.

Compensation in Constitutional Tort

Taking note of this irresponsible exercise of its power by the State Government, the Court states “…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”.

The judgment invokes the concept of ‘constitutional tort’, whereby pecuniary damages may be awarded in cases of infringement of an individual’s constitutional rights by the State. This is based on the principle of compensatory justice so that damages may act as a palliative for the loss suffered by the victim and a deterrent for the violator of the right.While the concept of constitutional tort is not new to India, it is still foreign enough to have definite principles. As a result of this, it is characterised by ad-hocism and uncertainty.

In the precedent cited by the judgment, Rudul Shah v. State of Bihar (“Rudul Shah”), the apex court ordered the government to pay Rs. 30,000 to the petitioner who had not been released from prison even after 14 years of his acquittal. While upholding the principle of this monetary relief, its jurisprudential basis was conflicted: was this to be a palliative compensation or akin to exemplary damages?

In subsequent cases, the Supreme Court went on to hold that it had a right to give monetary compensation for state excesses. It was in the landmark case of NilabatiBehara v. State of Orissa that the Court in unequivocal terms elucidated that Article 32 of the Constitution compelled it “to forge such new tools as may be necessary for doing complete justice and enforcing fundamental rights”. Further, it held that the defence of sovereign immunity, though applicable in private cases of tort, may be inapplicable and inextensible to cases of compensation as a remedy under Articles 32 and 226.

Yet constitutional tort law in India suffers from inconsistencies, principally on the questions of the quantum of compensation to be awarded, what cases it is to be awarded in and from whom it is to be extracted. It is to be admitted that due to the varied nature of disputes and their surrounding circumstances, it is difficult to evolve a uniform basis of compensation. Rather, one must take into account factors like the egregiousness of the violation of the rights of an individual, the possibility of mala fide intention on the part of the official concerned, as well as the physical, material and reputational damage to the person detained and his dependents.  

The Supreme Court has also been inconsistent in deciding in what circumstances compensation may be deemed fit. In M. C. Mehta v. Union of India(Oleum Gas Leakage case), it was held that an individual may only be compensated if the violation of their right is “patent and incontrovertible” and that its magnitude is enough to “shock the conscience of the court”. However, in subsequent cases, like Paschim Banga Khet Mazdoor Samity v. State of West Bengal, the Court has not used this test. 

While in Sunitha and Rudul Shah the liability to compensate lay on the errant officer, courts have often held the government to be vicariously liable for the conduct of their officials. It is submitted that unless there is a gross or patent wrongful act by a government servant or the confirmation of mala fide intention, the liability should lay with the State. This is because of the state’s ability to compensate adequately and the inability to always direct the blame on one official.


What is definite is that to uphold the principle of equality before and equal protection of the law, the uncertain gaps in constitutional tort law must be filled so that the inconsistent application of laws can be averted. Thus, legislation needs to be proposed to determine the parameters and implications of State liability in such cases. The judgment of the Madras High Court is a welcome step towards ensuring that arbitrary preventive detention does not become a weapon in the hands of the authoritarian state, but to ensure compliance and certainty, more needs to be done. 


[1] Para 16, Sunitha v. Additional Chief Secretary to Government, 2022 SCC OnLine Mad 5278.

The author is a student from National Law School University Jodhpur

Image Credits: The LiveLaw


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