The latest amendments made to the main preventive detention law in Tamil Nadu have great potential for misuse. By bringing in sexual offences and cybercrimes within the ambit of the Goondas Act, a 1982 law that provides for one year of imprisonment without bail, the State government has included crimes already being dealt with by means of stringent provisions. Further, the State has deleted the requirement that in order to be detained under this law one should be a ‘habitual’ offender. This gives extraordinary discretionary power to the executive to detain anyone accused of one crime under a host of regular and special laws. With the classes of offences constantly expanding, the availability of the preventive detention option for first-time offenders portends great danger for personal liberty. It is a fact that a Full Bench of the Madras High Court has ruled that even one offence is enough to invoke the law in certain circumstances, but incorporating it as a statutory power may violate constitutional guarantees. Further, with cybercrimes coming under its ambit, the State will have to ponder over its implications on freedom of speech and expression. The amendments also mean that the High Court will have to grapple with more habeas corpus petitions. Detention orders are invariably set aside by High Courts on technical grounds, but only after a great deal of harm is done with detainees having spent several months in jail.
‘Sexual offenders’ who may now be detained include those booked for molestation, the various categories of rape under the Indian Penal Code, and the much-debated Section 377 that criminalises homosexuality. For one thing, sexual offenders have been detained under the Act in the past, and a specific provision is not necessary. Secondly, it was only in 2013 that the sections dealing with crimes against women were significantly strengthened. The IPC provisions themselves are now strong enough as molestation, sexual harassment, stalking and voyeurism are separately defined so that offenders do not get away easily. The Protection of Children from Sexual Offences Act, 2012, is now being invoked by the police in Tamil Nadu for crimes against children. If investigated and prosecuted well, these laws are enough to meet the government’s objective. The reference to Section 377 is singularly unfortunate, as the LGBT community will be an easy target for arbitrary detention. There have been enough instances of the misuse of Section 66-A of the Information Technology Act for one to be wary of using it as a basis for preventive detention. Tamil Nadu will be well-advised to keep the amendments in abeyance as curbing crime needs efficient policing and speedy trials, not draconian laws.