Article 22(5) of the Constitution states as follows:

“When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.”

Article 22 of the Constitution also states that no law providing for preventive detention shall authorise the detention of a person for a longer period than 3 months unless an advisory board consisting of person who are or have been qualified to be appointed as judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention.

State and preventive detention

As the institution of the state grows more powerful, it often manages to impose its will, sometimes at the expense of citizens’ basic freedoms. This is evident when individuals are denied bail and kept in jail for years, as seen in the case of Umar Khalid, who remains imprisoned without trial under various statutes.

Given these circumstances, it becomes crucial to recognize, document, and understand the procedural responsibilities of the state, particularly in relation to personal freedoms. In this context, the Supreme Court’s judgement in Jasheela Shaji vs. Union of India [2024 INSC 683] becomes especially important to examine.

Background of the case

The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974(COFEPOSA) provides for preventive detention in certain cases for the purpose of conservation and augmentation of Foreign Exchange and Prevention of smuggling activities and such connected matters.

Section 3(1) of the Act gives powers to the Central Government or the State government to empower an officer not below the rank of secretary to make an order for a person, including a foreigner, be detained with a view to prevent such person from smuggling or abetting the smuggling of goods, engaging or transporting or concealing or keeping smuggled goods, or dealing in smuggled goods in other ways or harbouring people engaged in smuggling goods.

Pursuant to this power, the Detaining Authority had passed an order on August 31, 2023 to detain Appisserlil Kochu Mohammed Shaji (A.K.Shaji-the detenu) with a view to prevent him from acting in any manner prejudicial to the augmentation of foreign exchange in future.

After being taken into custody on September 2, 2023, the Detenu was sent to the Central Prison, Poojapura, Trivandrum. On September 6, the grounds of detention were served against the detenu. Apart from the detenu’s statements, WhatsApp Chats, Voice Calls, Images revered from his Mobile etc, the detaining authority had relied on the statements of two people — Suresh Babu and Ms. Preetha Pradeep.

According to the Constitutional right under Article 22(5), the detenu had made representations to all three – the detaining authority, the Central Government and the Advisory Board. Since the central government or the detaining authority did not receive the representation, the former confirmed the August 31 detention order and directed that the detenu be detained for a period of one year from September 2, 2023.

When the detenu approached the Kerala High Court under a Habeas Corpus petition, the Court on March 4, 2024, dismissed the petition leading to the appeal at the Supreme Court.

Arguments

Appellant’s arguments:

1. The appellants counsel argued that the detention order clearly mentions that the statements of Ms. Preetha Pradeep were relied upon by the detaining authority while arriving at subjective satisfaction to pass the detaining order on August 31, 2023. The said statements were not provided to the detenu, thus affecting the right under Article 22(5) of the Constitution. Counsel also submitted that the High Court had erred in deciding that the detaining authority could have arrived at the same decision without relying on Ms. Preetha Pradeep’s statements and thus, the detaining order is liable to be set aside.

2. The Detenu submitted the representation to the Jail Authorities on September 27, 2023, for onward transmission to the detaining authority and the central government—which were sent by ordinary post and could not be traced. After the notice was issued in the present case, records were called from the jail authorities and the representations were subsequently rejected by both the authorities on June 11 and 12, 2024. The counsel for the appellant submitted that the delay in transmitting the representations as well as the delay caused in deciding the representations would also adversely affect the right of the detenu for effective and speedy disposal of the representations.

3. Another submission was that the memorandum passed by the Central Government rejecting the representation of detenu shows that there was no real and proper consideration in lieu of absence of reasons.

4. On these counts, the counsel for the appellant had argued that the detention order be quashed and set aside.

Respondents’ arguments 

1. The counsel for the respondent argued that the Detaining Authority had correctly determined the detenu’s involvement in illegal foreign currency transactions based on the statement of Suresh Babu and WhatsApp messages. These materials demonstrated, according to the respondents’ arguments, the detenu’s engagement in hawala dealings, and the illegal purchase and sale of foreign currencies.

2. The counsel stated that the detenu’s case was referred to the State Advisory Board, which found sufficient grounds for detention, even if the statement of Ms. Preethi Pradeep was excluded. They relied on the case of Vakil Singh vs. The State of J&K [(1975) 3 SCC 545] to argue that “the grounds must contain the pith and substance of primary facts but not subsidiary facts or evidential details.” The case of Sowkath Ali vs. Union of India [(2000) 7 SCC 148] was also cited to maintain that if one ground for detention is unsustainable, the order can still be upheld based on other valid grounds.

3. Regarding the supply of documents, the counsel cited the case of M.S. Ummu Saleema vs. B.B. Gujara [(1981) 3 SCC 317], asserting that it is not necessary to furnish a copy of each and every document to which casual or passing reference may be made during the narration of facts, especially if those documents were not relied upon by the Detaining Authority when making the detention order. On the issue of delay in deciding the detenu’s representations, the counsel argued that the representations dated September 27, 2023 were not received by the Detaining Authority or the Central Government. However, following a court notice, the representations were decided in June 2024, and they maintained this did not constitute a delay.

The judgement:

The court addressed two key issues regarding the detenu’s right under Article 22(5) of the Constitution of India: (a) the impact of non-supply of Ms. Preetha Pradeep’s statement on the detenu’s ability to make an effective representation, and (b) the non-receipt and delay in deciding the detenu’s representation by the Detaining Authority and Central Government.

On the issue of not serving statements of Ms. Preetha Pradeep.

On the first issue, the court referred to previous judgments, highlighting that under Article 22(5), the detenu must be provided with the grounds of detention and any documents relied on by the Detaining Authority as soon as practicable. The right to make an effective representation would be compromised if such documents were not provided. It was emphasized that even if the detenu was already aware of the document’s contents, the failure to supply them would still violate their rights. The court cited the case of M. Ahamedkutty vs. Union of India [(1990) 2 SCC 1], affirming that documents forming the basis of detention must be given to the detenu, without which their representation would be incomplete.

The court also acknowledged the reliance on the case of L.M.S. Ummu Saleema vs. B.B. Gujaral [(1981) 3 SCC 317], which held that it is not necessary to supply documents casually referenced in the detention grounds if they are not relied upon by the Detaining Authority. However, the failure to supply crucial documents relied on for the detention decision would violate the detenu’s rights. The court reiterated that only those documents instrumental in the detention order must be provided, as noted in the case of Radhakrishnan Prabhakaran vs State of Tamil Nadu [(2000) 9 SCC 170]. This distinction was crucial in affirming that selective non-disclosure can affect the detenu’s constitutional rights.

The court examined the detention order which was based on eight key factual aspects, leading the authority to the conclusion- that the detenu had engaged in activities harming the country’s foreign exchange. Two significant statements by Ms. Preetha Pradeep, made on 5th and 6th July 2023, were central to the case. In her statements, she revealed transactions involving large sums of money being transferred to and from Suresh Forex Services Pvt. Ltd., with Shaji and Suresh Babu involved. These statements were crucial in establishing the link between the detenu and these transactions.

The court noted that these statements were not just casual references but were pivotal in forming the Detaining Authority’s “subjective satisfaction” about the detenu’s involvement in illegal activities. In addition to Preetha’s statements, other pieces of evidence, including statements from Suresh Babu and the detenu himself, were also considered.

However, the non-supply of Preetha’s statements to the detenu violated his right to an effective defense under Article 22(5) of the Constitution. The court concluded that these documents were integral to the case and their absence prevented the detenu from making a proper representation. Thus, the detention order was deemed invalid due to the non-supply of vital material.

On whether the delay in considering the detenu’s representation violated his fundamental rights under Article 22 (5) of the Constitution

The court emphasised that Article 22(5) of the Constitution mandates the government to provide the detenu with the earliest opportunity to make a representation against the detention order. This representation must be considered promptly to ensure that the detenu’s rights are protected. The court found that a significant delay in considering such representations undermines this constitutional safeguard, indicating that the prolonged detention without timely review violates fundamental rights.

The court referenced several landmark cases to illustrate the importance of prompt handling of representations:

• Tara Chand vs. State of Rajasthan[(1981) 1 SCC 416]: This case highlighted that a one-month delay in transmitting a representation from jail to the detaining authority demonstrated gross negligence, violating the provisions of Article 22(5).
• Rattan Singh vs. State of Punjab [(1981) 4 SCC 481]: The court reinforced that, regardless of the detenu’s alleged unlawful activities, it is critical to adhere to legal requirements for speedy consideration of representations. The judgment underscored the necessity of lawful procedures being followed in all cases.
• Aslam Ahmed Zahire Ahmed Shaik vs. Union of India [(1982) 2 SCC 43]: In this case, the court stressed that delays caused by intermediary authorities, like jail officials, are unacceptable. A seven-day delay in forwarding the representation to the appropriate government body was criticized, emphasizing that such delays compromise the constitutional rights of the detenu.

These cases collectively affirm the court’s stance that undue delays in addressing representations not only contravene constitutional protections but also render continued detention unlawful.

Ultimately, the court concluded that the negligent handling of the representation resulted in a delay of nearly nine months in its consideration. Consequently, the court quashed the detention order, asserting that the detenu’s right to a timely decision on his representation under Article 22(5) of the Constitution had been violated. The court ordered the immediate release of the detenu if he was not required in any other case.

Checks against preventive detention

Criminal Justice jurisprudence across the world has emphasised on the importance of checks and balances against preventive detention, even during the most urgent grounds such as national security.

The Hamdi v. Rumsfeld [542 U.S. 507 (2004)] ruling underscored that American citizens designated as enemy combatants have the right to contest their detention in court, emphasising due process protections even during wartime. Justice Ruth Bader Ginsburg highlighted the necessity of judicial oversight over executive power, asserting that Congress did not grant unchecked authority for indefinite detention. This decision significantly shaped preventive detention jurisprudence by reinforcing the importance of civil liberties amidst national security concerns.

After 9/11, the UK detained eleven foreign nationals suspected of terrorism under a state of emergency, but later the House of Lords ruled this scheme unlawful. The Court emphasized that detention must be justified, adhere to national laws, and not be arbitrary. It found the indefinite detention of non-nationals disproportionate and discriminatory, violating Article 5(1) of the European Convention on Human Rights.[1]

Procedural checks mitigate the risk of discrimination inherent in preventive detention. History shows that marginalized groups are often disproportionately targeted by security measures. Implementing fair procedures protects vulnerable populations from bias and ensures that detention decisions are based on objective criteria rather than prejudice. These safeguards also promote accountability by compelling authorities to adhere to legal standards and providing regular reviews of detention cases, ensuring that individuals are not held indefinitely without justification.

[1] A. and Others v. the United Kingdom [GC] – 3455/05

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The Madras High Court bench of Justices SM Subramaniam and V Sivagnanam on August 9 came out strongly against the conduct of Chennai Police, where the latter had preventatively detained YouTuber Savukku Shankar under the stringent Tamil Nadu Goondas Act, 1982, accusing him of spreading false documents on social media against the government regarding the tender process for construction of new bus terminus at Kilambakkam.

The court observed that Shankar was arrested on May 10, 2024, while the video attached in detention order was broadcasted only on May 11, and the same order mentions that passengers protested against the non-availability of buses at New Bus Terminus in Kilambakkam on May 10. Therefore, if the controversial material was published a day after the protest took place, there is an apparent contradiction in the face of it, and the “element of breach of public order has not been established”, the bench noted. It further said that in the absence of any satisfactory ground to show that the act caused public disorder, mere publication of false information cannot constitute an offence under Section 3(1) of the Goondas Act, 1982.

The writ of Habeas Corpus was filed by the mother of the detenue, A.Kamala, wherein 4 respondents were named in the petition, namely, the State, the Commissioner of Police, Greater Chennai, the Inspector of Police, Chennai City CCD-I, and the Superintendent, Central Prison, Coimbatore.

Brief Background

Savukku Shankar, a YouTuber who runs Savukku Media channel, was first arrested on May 4, 2024 by the Coimbatore City Cyber Crime police in Crime No. 123 of 2024, wherein he was charged under Section 509 (outraging modesty of a woman) of Indian Penal Code (IPC), Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 1998, Section 67 (publishing obscene material) of the Information Technology Act, 2000. Since his arrest he was put in Central Prison at Coimbatore. Two more cases that were relied upon by the police to issue detention order were filed on May 7, with Crime Nos. 154 and 155. Notably, the FIR in Crime No. 154 was registered after a lapse of nearly 6 years since the date of original complaint which involved allegation against Shankar of making derogatory comments against a woman journalist. In the FIR in Crime No. 155, the complaint pertained to making derogatory comments against Women Police Officers in his YouTube video. Later, the Chennai Police filed another case on him on May 8, with an FIR Crime No. 158 of 2024 under Sections 465 (forgery), 466, 471, 474, 420 (cheating) of Indian Penal Code (IPC) based on the complaint received from Superintendent Engineer in Construction Wing, Chennai Metropolitan Development Authority (CMDA). Interestingly, the complaint followed 3 months after the passengers protested against the unavailability of public transport buses at New Bus Terminus in Kilambakkam, and it charged Shankar of stealing government data and spreading false information through his social media posts, which it said instigated the public.

The detention order was issued on May 12 by the Commissioner of the Police, Greater Chennai, and the State Government approved the order by publishing the same on May 22. The police had justified issuing the detention order based on Crime No. 158 and further relied on Crime Nos. 154 and 155 to argue that on previous occasions the accused had secured relief against his remand and therefore it took precautionary measure this time by issuing the detention order.

Judgement

The HC bench questioned the need to arrest Shankar under stringent Goondas Act by the authorities and held that his social media posts did not lead to public disorder and further explained that public disorder cannot include all law and order situations. The verdict notes that “The criticism made against the Government and its officials prompted them to invoke preventive detention to stop the detenu from publishing any such criticism, opinions about the Government or its officials.”  The court also did not take the public protests as a threat to public disorder and said that no untoward incident or element of breach of public order has been established in the detention order.

Importantly, the High Court was quick to note that the past two adverse cases registered against the accused vide Crime Nos. 154 and 155 does not form a sufficient ground to culminate into a case of Preventive detention under the Goondas Act, 1982. It held that “Offences disclosed in the adverse cases and the ground case do not disclose any serious threat to ‘Public Order’ and does not meet the threshold.” Furthermore, the judges took cognisance of the delay in filing couple of complaints, and remarked that “unexplained delay raises suspicion.” Moreover, the verdict reiterated the basic principle of criminal law and said that “in case of Preventive detention, if there is any doubt, whether rules have been strictly observed, that doubt must be resolved in favour of the detenu.”

The bench said that both cases (Crime Nos. 154 and 155) can be addressed through normal course of legal action under relevant provisions of laws without any need to invoke the Goondas Act, 1982. Additionally, the judges held that the accused was deprived effective representation in the case, as his representation was received on May 22, 2024, the same day on which the state government approved his detention order.

Emphasis on Freedom of Speech

The court relied on a plethora of judicial precedents concerning personal liberty and free speech jurisprudence, including Ram Manohar Lohia v. State of Bihar (1966 (1) SCR 709) , Anuradha Bhasin vs. Union of India and Others (AIR 2020 SC 1308), Pramod Singla vs. Union of India (2023 SCC Online 374), Ameena Begum vs. State of Telangana and Others [(2023) 9 SCC 587)], Rekha v. State of T.N [(2011) 5 SCC 244] and A.K. Roy v. Union of India (1982 SCC (Cri) 152).

Noting that selective detentions and false information both are equal threat to democracy, the bench said that “We cannot be a democracy, if we receive same plausible views from all the citizens. There is bound to be discontent, which might be acceptable and unacceptable, but the duty of the State is much larger than engaging in legal battles to prevent such unacceptable opinions.” It further remarked that people consuming information on social media are the best judges for themselves and constitutional institutions cannot indulge in a process to influence the views of the people, and added that “Actions of the Institution speaks for themselves and the views may come and go.”

On the rights of viewers, the bench observed that fellow citizens have right to know the opinions of a fellow citizen on the policies or actions of the government and censorship against such views is unhealthy for good governance. It also stated that “View and opinions are subjective and based on one’s own perception of information available at their disposal. No one can alter or change other’s views or opinions.”

The court also went into academic inquiry to understand what could be considered as influencing the opinion of fellow citizens. It provides the following illustration: “To illustrate further; ‘Y’ may post a content unfairly criticising a policy of the government which though a good policy and is in accordance with the laws in force. But ‘Y’ feels that it is a wrong policy and has to go. ‘A’, ‘B’ and ‘C’ are viewers watching the content. ‘A’ agrees with ‘Y’, ‘B’ agrees partially and ‘C’ does not agree with ‘Y’. ‘A’, ‘B’, ‘C’ is believed to have their own views about the said policy. Can it be said that ‘Y’ is influencing them against the government thereby causing public disorder with his opinions.”

The judgment notes that by taking a stricter construction of content online, the State is embarking on a never-ending unproductive journey which may eventually result in narrowing down the contours of Article 19(1)(a). It further said that “individual freedom cannot be clamped down at the whims and fancies of the State” and “Excessive usage of such laws to restrict the right to free speech will deter other citizens from enforcing their right to criticism or opinions against the State thereby fracturing the spine of democracy.”

The bench suggested that the State should instead use social media to understand the grievances of its people rather than trying to clamp them down. It observed that reasonable restrictions is a “narrow term” and it should be used in the most sparing way possible.

As the court quashed the detention order against Shankar as being noncompliant with the provisions of the Tamil Nadu Goondas Act, 1982, and set him free, it said that “in this month of 77th Independence Day celebrations can the voices of the citizens be stifled again? This Court cannot narrow the walls of Article 19(1)(a). The soul of a healthy democracy lies in free speech.”

Note: “The Goondas Act, 1982” has been used in this article to ensure easy readability, the formal name of the said legislation is “Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drug offenders, Forest-offenders, Goondas, Immoral Traffic Offenders, Sand offenders, Sexual-offenders, Slum-grabbers and Video Pirates Act, 1982.

The Madras HC judgement may be read here:

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The post Quoting Tagore, the Madras High Court flags misuse of preventive detention laws to censor critical social media posts appeared first on SabrangIndia.

The Court was dealing with a writ petition, filed through the detenue’s father, challenging a preventive detention order issued in April 2022. The bench highlighted in its judgment that the detenu had challenged the impugned prevention detention order on the basis that there if no explanation as to why the detenu had not been arrested in those two years if the disclosures had been made available to the authorities then. Additionally, the detenu alleged that since the relevant documents being relied upon the authorities were never served to him, it disabled him to make an effective and meaningful representation against his detention.

Observations of the Court:

After hearing the arguments put forth by both the parties, Justice Sanjeev Kumar observed that impugned order of detention does not sustain in the eye of law as there is non-application of mind on the part of detaining authority. The court further observed that it appeared to him that the detaining authority did not appear to know whether the detenu had been apprehended in the UAPA case or not, or the events in the case he had applied bail for.

“It is nowhere discernible from perusal of the grounds of detention as to whether the detenu had been arrested in connection with case FIR no.130/2020 or not, and/or in the event of his arrest he had applied for bail before the competent court of law or bail had been granted in his favour,” the Court said in its judgment. (Para 5)

The Court proceeded to emphasise the following:

“The order of detention must have proximate and live link with the activities of the detenu. The detention based on stale incident is vitiated in law. I do not require many judgments to hammer this settled legal position.” (Para 10)

Notably, the Court found substance in the allegations raised by the detenu, and highlighted in its judgment that the detention order would be vitiated if the detenu is not supplied with the material based on which the detention order was passed, thereby affecting his right to make an effective and meaningful representation against the detention.

“The detention order is vitiated if the requisite material relied upon is not supplied to the detenu, in that, if affects the vital constitutional rights of the detenu to make an effective and meaningful representation. Simply because a communication has been issued to the detenu informing him about his right to make a representation is not sufficient. As is evident from perusal of the xerox copy of the detention record, the material relied upon by the detaining authority has not been supplied to detenu so as to enable him to make a representation against his detention.” (Para 9)

The Court further took critical note of the fact that the detaining authority had not stated any compelling reason warranting the preventive detention of the detenu.

“Subjective satisfaction without taking relevant material into consideration and non-application of mind by the detaining authority are the grounds that go to the root of detention and vitiates it ab initio. In that view of the matter, the order of detention is clearly vitiated by total non-application of mind by the detaining authority,” the Court said.

 Judgment of the Court

Based on the observation made the Court above, the Bench proceeded to allow the writ petition and quashed the detention order issued by the District Magistrate, Shopian.

The judgment can be read here:

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The habeas corpus petition was filed by the detenu’s sister. Sukumar Das was detained under Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act. The detention order was passed on August 24, 2022 by the Home Department of the state. However, the court was informed that no order of confirmation of the detention order was given to the detenu. The confirmation order is supposed to confirm the detenu’s detention beyond the period of 3 months. A communication from the state government indicated that no order of confirmation has been issued yet in this matter which would authorize the detention of Das beyond 3 months.

Article 22 of the Constitution of India governs the detention of a person under the laws of preventive detention. Article 22(4) of the Constitution of India clearly postulates that no law providing for preventive detention shall authorize the detention of a person for a longer period than three months, unless the Advisory Board has reported that there is sufficient cause for such detention.

Further, even the Act under which Das was detained, provides under section 9(f) that upon receiving the report of the Advisory Board, if the Board has opined that there is no sufficient cause for detention of the person concerned, the appropriate Government is under an obligation to revoke the detention order. If the Board opines that there is sufficient cause for detention then the government “may” confirm the detention for a period as it may deem fit.

“Thus, once the report of the Advisory Board is received, the State Government is under an obligation to pass an order of confirmation or revocation, as the case may be, of the initial detention order and the said order must be issued within the period of three months because the initial detention cannot exceed the said period as prescribed under Article 22(4) of the Constitution of India,” the court held.

The Act also stipulates situations where a person can be detained for more than 3 months without the Advisory Board’s report. However, even that does not stipulate detention for more than 6 months. If confirmed by the Advisory Board, the person can be detained for a maximum period of 1 year.

“Thus, under the scheme of the 1988 Act, the detaining authority is under an obligation to call for the report of the Advisory Board within the prescribed time frame (eleven weeks) and to issue an order of confirmation, within the period of three months as provided under Article 22(4) of the Constitution of India, failing which, the further detention of the detenu would be rendered totally illegal,” the court pointed out.

The court said that the detenu’s situation was “alarming” since he was kept behind bars for more than 8 months. “Every moment of custody of the detenu beyond the period of three months from the date of the initial order of detention without the order of confirmation being passed, amounts to illegal detention pure and simple,” the court held.

The court further pointed out that a similar situation arose in Writ Appeal No.299/2022 (Sharukh Ahmed @ Muktar -Vs- The Union of India & Ors.) yet, the state authorities have not rectified their blunder in issuing detention orders.

The court deemed Das’s detention to be illegal in gross contravention of Article 22(4) of the Constitution. The court directed that Rs.50,000 be paid as compensation to Das as a symbolic compensation for his grossly illegal detention beyond 3 months.

The court further directed the Assam State Legal Services Authority to seek “a report from all prisons across the State of Assam regarding the status of detenues, who have been detained under the preventive detention laws, so as to find out whether any similar situation as has been noticed by this Court, prevails and to take remedial measures, if so required.” The court sought the compliance report on June 23.

The order may be read here.

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On April 10, while setting aside a preventive detention order, the Supreme Court noted that such preventive detention laws in India are a colonial legacy with a high potential for abuse and misuse. The Court emphasized that these laws allowing the state with arbitrary powers must be scrutinized and used only in the rarest of the rare cases.

A Bench of Justice Krishna Murari and Justice V. Ramasubramanian said that, “Every procedural rigidity, must be followed in entirety by the Government in cases of preventive detention, and every lapse in procedure must give rise to a benefit to the case of the detenue. The Courts, in circumstances of preventive detention, are conferred with the duty that has been given the utmost importance by the Constitution, which is the protection of individual and civil liberties.”

This judgment hold true as preventive detention laws in India can be traced back to the early days of colonial rule. The then enactment Bengal State Prisoners Regulation III of 1818 had allowed detention without trial. It was extended by the British to other provinces and eventually took the shape of Defence of India Acts of 1915, justified as World War I measures.

It is important to note here that the numerous preventive detention laws and anti-terror legislations that exist in our country have become a vital component of India’s legal system, despite the fact that they were not intended to be. The state is abusing these laws to limit the personal liberty guaranteed to individuals in the Indian Constitution. Apart from National Security Act, the main law on preventive detention, we have the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act, 1988; the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974; the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980; and the Jammu & Kashmir Public Safety Act, 1978, to name a few. In addition to this, almost every state has a Goondas Act, such as the U.P. Control of Goondas Act, 1970.

The Jammu and Kashmir Public Safety Act, 1978, is one of the most frequently invoked pieces of legislation that includes a provision for preventive detention. According to central government data, there have been 450 preventive detentions in Jammu and Kashmir since the abrogation of Article 370. Among the detainees are some of the state’s most prominent leaders and ex-CMs, including Farooq Abdullah, Omar Abdullah, and Mehbooba Mufti. These detentions have nothing to do with national security; the government enacted these laws to silence opposition voices.

Decades have passed, and instead of moving towards building a system where no state agencies have the power of infringing upon the individual liberty guaranteed to us, we are still stuck at the same position, with laws with vague wording and wide aspects allowing detention with trial and disbarring anticipatory bail.

The Indian courts have repeatedly reminded the state and its agencies that preventive detention laws are not intended to be used as tools of abuse. In June 2022, the Supreme Court had stated that powers under the preventive detention law are “exceptional” and cannot be used on a regular basis because they impinge on an individual’s freedom and liberty. The observation came as the Supreme Court overturned a detention order for two people in Telangana. Because these laws are highly administratively steered and limit the scope of judicial intervention, they sometimes place unrestrained and largely unsupervised power in the hands of the executive without any liability, allowing for grave misuse of such powers.

In November 2022, the Madras High Court had dealt with two writ petitions which were filed to issue a writ of habeas corpus against the detention orders passed by the District Magistrate and quashed the same and had directed the respondents to produce the body or person of the detenus. The division bench of M.S. Ramesh and N. Anand Venkatesh held that the impugned detention orders suffer from infirmity and illegality, thus set aside the same, and directed the respondent to release the detenus and pay them compensation. The Court had also examined the previous Prison Statistics India Report, and observed that Tamil Nadu had occupied an unenviable first place in detaining the maximum number of people under its preventive laws in the entire country, and had said that the inferences drawn can be twofold, either the State is inching towards lawlessness or that the jurisdiction of suspicion has now become a convenient and potent weapon in the hands of the law enforcing agencies to indiscriminately detain people by a conscious abuse of its statutory powers.

The Madras HC had further said that preventive laws have become the favourite hunting ground for the police and an instrument of convenience, whereby common criminals and undesirables are dealt with, on the sure knowledge that once a detention order is passed, such persons are bound to be jailed for at least 3-6 months, pending reference to the Advisory Board or a challenge before this Court by way of a habeas corpus petition.

On April 20, 2023, the Jammu and Kashmir High Court pointed out that the detaining authority had used the expressions “Public Order” and “Security of the State” with an wavering mind and uncertainty when issuing the detention order for Journalist Fahad Shah. A bench of Justice Wasim Sadiq Nargal noted that “public order” and “security of the State” are distinct concepts, though not always separate, and that while every breach of peace may amount to disturbance of law and order, every such breach does not amount to disturbance of public order, and every public disorder may not prejudicially affect “security of the State.”

Concentrating on the mandate of Section 8 of the Public Safety Act, the bench observed that the maintenance of public order and Security and Sovereignty of the country are two distinct expressions with different connotations that are demarcated on the basis of gravity and cannot be used concurrently, proving beyond any doubt that the detaining authority did not apply its mind when passing the order of detention.

The bench then directed for the detention order of journalist Fahad Shah to be quashed. The bench was hearing a Habeas Corpus petition filed by Fahad’s elder brother, who was challenging his detention order, pursuant to which he had been placed under preventive detention in accordance with an order issued by the District Magistrate of Srinagar.

Attention also needs to be given to the time it usually takes to apply for, let alone secure, judicial relief benefits the executive, something which they are fully aware of and take advantage if. Even when such laws are found to be misused, the ultimate goal of keeping the person behind bars for an extended period of time is met, as has been happing since the last 9 years. Even though the Supreme court has consistently stood up to any violation of citizens’ fundamental rights, the fact is that the high backlog of pending cases that is currently overburdening courts means that writ petitions against preventive detention orders take several months to be heard. In many cases, the bail cases mentioned before Supreme Court yield no result and have to be sent back to the lower courts as the judgments passed by them are lacking. As a result, the process becomes the punishment.

Brief Facts of the current case

In November 2021, officers from the Directorate of Revenue in Delhi arrested the appellant and other syndicate members based on an intelligence report about a syndicate of Chinese, Taiwanese, South Korean, and Indian nationals smuggling gold into India.

The DRI sent a proposal to the Joint Secretary (COFEPOSA) in January 2022 to issue an order of detention under the COFEPOSA Act against the appellant, and the detaining authority then passed the detention order in February 2022, and the appellant was arrested by the DRI.

The appellant sent a representation letter to the Central Government and then to the Advisory Board. Following a hearing, the Advisory Board advised the Central Government to reject the representation, which was done after a 60-day delay. The appellant then petitioned the High Court to quash the detention order, but it was dismissed on November 3, 2022.

However, due to the death of his father, the Court released the appellant from custody in January 2023 as interim relief. He was later released from detention because the detention order had expired.

The appellant has filed an appeal with the Supreme Court against the Delhi High Court’s November 3, 2022 judgment wherein the High Court had denied the appellant’s request to vacate the detention order due to a delay in hearing his representation.

Arguments put forth in the current case:

Counsel for the appellant:

The appellant’s counsel contended that, under Article 22(5) of the Indian Constitution, a representation made by the detainee in cases of preventive detention must be considered as soon as possible, and that an excessive delay in considering the representation is grounds for the detention order to be set aside.

The counsel cited the decisions given by the Apex Court in the case sof K.M. Abdulla Kunhi & B.L. Abdul Khader v. Union of India & Ors and Ankit Ashok Jalan v. Union of India & Ors. Judgment, both of which are Constitution Bench judgments, where it has been stated that the Central Government must wait for the decision of the Advisory Board, are in direct contravention with Constitution Bench judgments of this Court in Pankaj Kumar Chakraborty And Ors. v. State of West Bengal and the Jayanarayan Sukul v. State of West Bengal, and due to the apparent conflict, the issue needs to be referred to a Larger Bench.

It was also argued that the documents provided to the appellant herein as grounds for his preventive detention were illegible and in Chinese, and thus the impugned detention order as against the appellant must be quashed on this basis as well.

Contentions of the respondents:

The respondents contended that there was no difference between the Pankaj and the Ashok Jalan cases, as argued by the appellant. They claimed that the appellant’s decisions were made under the Preventive Detention Act, whereas the Ashok Jalan and Abdullah Kuni cases were made under the COFEPOSA Act.

Analysis by the Court

1. Application of preventive detention laws.

According to the Supreme Court, preventive detention laws in India are a colonial legacy with a high potential for abuse and misuse. Laws with the potential to grant the state arbitrary powers must be scrutinized in all circumstances and used only in the most exceptional of circumstances.

The Court also stated that in cases of preventive detention, where a person is detained not for a crime committed but for a perceived risk of committing a crime, courts should always err on the side of caution and give the detainee the benefit of the doubt. Even minor procedural violations should be resolved in the detainee’s favor.

2. Delay in representation

According to the Supreme Court, in cases of COFEPOSA Act preventive detention, the detainee has the right to make representations to the detaining authority, the Government, and the Advisory Board. These representations must be decided as soon as possible, according to Article 22(5) of the Indian Constitution. The detainee is released if the representation is accepted by the government or the detaining officer. If the representation is rejected, the detention period is extended.

The Court found in this case that, while the detaining authority considered the appellant’s representation promptly, the Government took 60 days to consider it. The appellant contended that the delay was fatal to the prosecution’s case and was sufficient reason to vacate the detention order.

The Court held in the Pankaj Kumar Case that the central government must act independently of the Advisory Board and can decide the detenue’s representation without hearing from the Advisory Board.

The Court also cited the case of Abdulla Kunhi, in which the petitioner’s preventive detention under the COFEPOSA Act was challenged on the same grounds. This Court’s Constitution Bench considered the issues of submitting a representation before and after the matter was referred to the Advisory Board, and held that the Government must wait for the Advisory Board’s decision before making its own decision on the representation.

The Court observed that, while the two sets of judgments appear to be in conflict at first glance, a closer examination reveals otherwise.

The Court went on to explain that a detention order can be issued by either the government or a specially empowered officer under the COFEPOSA Act of 1974 and the Preventive Detention Act of 1950. Section 3 of the Preventive Detention Act, on the other hand, requires the empowered officer to seek approval from the Government for continued detention within 12 days of the detention. Only with the approval of the government can the detention be extended. After the initial 12-day period, this approval process effectively transfers power from the empowered officer to the government, making the government the detaining authority. The COFEPOSA Act, on the other hand, does not require such approval from the government, allowing the detaining authority and the government to remain separate and independent, as per the Court.

The Court made it clear that the mandate not to wait for the Advisory Board would only apply to the detaining authority. However, according to the Abdullah Kunhi Case, the Government must wait for the Advisory Board’s decision. There is no conflict between these two judgments because they apply to two separate authorities under the COFEPOSA Act. As a result, the court held that there was no need to refer this point of law to a Larger Bench because it has already been decided.

3. Supply of illegible documents cause prejudice

The Court stated that illegible documents provided to the detainee during preventive detention can jeopardize the detainee’s ability to file a representation. This violates the principles outlined in Article 22(5) of the Indian Constitution, which states that the detaining authority must explain the reasons for detention in a language that the detainee understands. It was determined that in such cases, the relief under Article 22(5) and the statutory provisions are void because the detenue cannot defend himself against an unknown threat.

The Court noted that the High Court had quashed the co-detainee’s detention order on the same grounds of illegible Chinese documents. It was noted that the current appellant’s circumstances were identical to those of the co-detainee. Analyzing the case, the Court had noted that the principle of parity applies in the present case since a co-detainee with identical circumstances had already been granted relief of quashing the detention order against him. In the case of Gian Chand v. Union of India & Anr., the court held that the principle of parity must apply in such cases.

Conclusion

Owing to the analysis provided above, the court set aside the detention order in the current case and concluded that, “This act of protecting civil liberties, is not just the saving of rights of individuals in person and the society at large, but is also an act of preserving our Constitutional ethos, which is a product of a series of struggles against the arbitrary power of the British state.”

The Court held that although the appellant has already been released due to the expiration of the detention period, the detention order must be set aside for the sake of clarity on the point of law. Therefore, the Court allowed the appeal.

The full order can be read here:

According to the preceding order, the right to legal consultation and representation should be viewed not only through a constitutional or statutory lens, but rather as a right that flows from the right to enjoy personal liberty, which is a fundamental human right. It is impossible for a layperson unfamiliar with legal knowledge and with no prior experience of such a situation to understand the reasons for his detention in the complicated world of law, and thus, safeguards had been put in place by our lawmakers. It is necessary to note that countries like United States of America and the United Kingdom are alien to the concept of preventive detention laws. Their criminal justice system works on due process of law. No other nation except India exercises preventive detention during peacetime.

As previously stated, courts have repeatedly held that statutory powers restricting an individual’s personal liberty should be used diligently, with great care, and not on a regular basis. Unfortunately, it appears that this advice has only scratched the surface and is falling on deaf ears, as the government continues to abuse these powerful weapons. Indeed, in many cases, such overarching regulations arose from the colonial State’s desire to suppress collective personal liberties of those in dissent. The fact that the leaders of a post-colonial, democratic polity have not been able to muster the will, or even the resolve, to repeal these laws points to a damaging loop of misuse and abuse. The excruciatingly long time it takes our legal system to dispose of such proceedings, combined with the detainee’s lack of any redressal mechanism other than the filing of writ petitions for quashing of preventive detention orders, ensures that the individual perpetually victimised. As a result, the ultimate goal of the detainee’s political or personal detention is catered to. Preventive detention gives the executive enormous power. Indian history bears witness to its draconian application against people who are accused of conspiring against the state or society. Thus, preventive detentions laws should no longer be viewed as a double edges sword that Indian cannot do away with or a necessary evil that we have to bear, these are colonial laws that serve authoritarian regimes, and must be repealed.

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The post Preventive detention laws have a colonial legacy with a high potential for abuse and misuse, only to be used in rarest of the rare cases: Supreme Court appeared first on SabrangIndia.

The Kerala High Court analysed concepts of liberty and preventive detention while dealing with a batch of habeas corpus petitions. In the judgment, the bench of Justice A.K. Jayasankaran Nambiar and Justice P Gopinath emphasized upon the due procedure to be followed in carrying out preventive detention and the rights of the detenu, as laid under the Constitution.

The court termed preventive detention as “jurisdiction of suspicion” and highlighted certain clauses under Article 22 of the Constitution that need to be followed with respect to effective communication of grounds, timely execution of detention order and consideration of representation of the detenu. The court held that unexplained delay in these processes could vitiate the detention order and set the detenu free.

Background

The 3 petitions were heard and decided together as the issues raised were common. One case was of smuggling of cigarettes while the other two were of two brothers caught for smuggling gold.

The judgement begins with an extract from a 1951 judgment of the Supreme Court in Ram Singh v. State of Delhi where Justice Vivian Bose inter alia stated,

“I fully agree that the fundamental rights conferred by the Constitution are not absolute. They are limited… It is our duty and privilege to see that rights which were intended to be fundamental are kept fundamental and to see that neither Parliament nor the executive exceed the bounds within which they are confined by the Constitution when given the power to impose a restricted set of fetters on these freedoms; and in the case of the executive, to see further that it does not travel beyond the powers conferred by Parliament.”

The court was dealing with habeas corpus petitions concerned with liberty of persons accused under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA). Before delving into the facts of the cases and the arguments of the parties, the court analysed the concept of liberty as put forth by philosopher John Stuart Mill and liberty as recognized by the Indian Constitution. The court then analysed preventive detention calling it a “jurisdiction of suspicion”

Preventive detention

The court interpreted the word “law” in Article 21 which states that no person shall be deprived of his life or personal liberty except according to procedure established by “law”. As per the court, the Article envisages the word “law” having the same meaning as the American phrase “due process of law”, meaning thereby a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial. 

However, Article 22 carves out an exception in the case of preventive detention by making it clear that the procedural safeguards against arbitrary arrest and detention are not applicable to any person who is arrested or detained under any law providing for preventive detention. The court states that the Constitution has conceded power of preventive detention but through clauses (4) to (7) of Art.22, provided procedural safeguards with a view to protecting the citizen against arbitrary and unjustified invasion of personal liberty. The court said,

“It is therefore that when an application for a writ of Habeas corpus is filed before us, we feel duty bound to satisfy ourselves that all the safeguards provided by the law have been scrupulously observed, and the citizen is not deprived of his personal liberty otherwise than in accordance with law.”

The court observed that while considering such applications, courts do not follow strict rules of pleading, and often relax the rigour of the evidentiary rules governing burden of proof but detaining authority is called upon to place all materials before the court to show that the detention is legal.

Due procedure – communication of grounds

The court points to Article 22(5) which states that when a person is detained in pursuance of a detention order, the detaining authority shall, as soon as may be, communicate to such person the grounds, save such facts which the authority considers to be against public interest to disclose, on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

As per the court “effective communication of grounds” entails presenting the detenu with documents in its entirety such as statements or any other materials relied upon in the grounds “because being incorporated in the grounds of detention, they form part of the grounds, and the grounds furnished to the detenu cannot be said to be complete without them.” The court further said,

“The right to be supplied copies of the documents, statements and other materials relied upon in the grounds of detention, without any delay, flows directly as a necessary  corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available, the latter cannot be meaningfully exercised. If the grounds of detention, as above, were not furnished to the detenu within the time permitted under the law, the continued detention of the detenu would be illegal and void.”

The court further states that the grounds must also include the reasons that weighed with the detaining authority for forming such an opinion based on the material scrutinized by him. The court emphasized that the detaining authority has to state reasons why he came to be satisfied that the person should be detained on the basis of the material available. It said,

“The supply of reasons is what clothes his ‘subjective satisfaction’ with the legitimacy that is required of action designed to deprive a person of his/her fundamental right to personal liberty. In its absence, the detenu does not get an effective right of representation against the detention, or an opportunity to show that there were no valid reasons to support the same.”

The court stated that if it finds that the order of the detaining authority is not based on relevant material or does not contain any reason for its decision, “this court would step in to free the detenu from the shackles of an illegal detention”.

Due procedure – delays

The court stated that an unexplained delay in passing the order or representation by the detenu, consideration of the same by the authority will vitiate the order and entitle the detenu to immediate release. The court held that the delay has to be explained, no matter how short the delay is.

The court held that delay in executing the detention order can also vitiate the order “since an unexplained delay leads the court to infer that there was no subjective satisfaction arrived at by the detaining authority as regards the need to detain the detenu”.

The court highlighted the manner in which the detenu’s representation is to be considered by detaining authority, the appropriate government and the advisory board. The government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The board, on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient cause for the detention.

In WP(Crl) 255/2020 the detenu was detained on July 13, 2020 while the order was issued on March 31, 2017 as the detenu was not in India when the order was passed and was apprehended as soon as he arrived. The court held that an absconding detenue cannot cite a delay in the execution of the order to contend that the detention order must be quashed on that ground. The court considered few other contentions raised by the petitioner, however, found no merit in them.

In the second cases of two brothers, the detention order was passed in July 2019 and Abdussameem was detained in May 2020 while Faisal was detained in July 2020. In July, Abdussameem requested that certain documents be provided to him in order to enable him to make effective representation before the Advisory Board. However, this request was rejected and eventually his detention was confirmed by the Board in August 2020. Faisal also made a similar request which was also rejected and his detention was confirmed in September 2020.

The detention of the two brothers was challenged in two petitions and it was argued that necessary documents were not supplied to them and there was considerable delay in execution of detention orders as well as in considering their representations. The court concluded that the denial of documents requested for affected the right of the detenues to make a proper and effective representation. The court also held that there was delay in executing the detention orders.

“We are at a loss to understand why the detention orders could not have been executed, by apprehending the detenus much earlier, if indeed the object of the whole exercise was to prevent them from engaging in prejudicial acts in future. The cavalier attitude of the detaining authority in the instant cases cannot be countenanced and, at any rate, cannot justify the continued detention of the detenus concerned”.

The court allowed the two writ petitions of the two brothers and ordered that they be set at liberty forthwith and dismissed the other petition where the detenu was charged with smuggling of cigarettes as the court found no merit in the contentions raised in the light of the facts of the case.

The complete judgement may be read here:

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The post Preventive detention is “jurisdiction of suspicion”: Kerala HC appeared first on SabrangIndia.

Orissa High Court quashed a detention order issued under NSA while observing that the same was illegal and bad in law as it failed to show apprehension of disruption of law and order or public threat. The Two-judge bench of Justices SK Panigrahi and Sanju Panda in its judgement dated December 16, 2020 held that preventive detention must be with proper circumspection and due care.

The petition was filed challenging the detention order passed by District Magistrate, Balasore, under the National Security Act. The petitioner was in judicial custody under charges of dacoity and certain sections of the Arms Act. A few days later, a detention order under NSA was issued against him. The petitioner submitted that the report did not disclose basic facts, material particulars which led to passing an order of detention and what is the basis and circumstances which led the District Magistrate to come to a conclusion that the detenue is terrorizing the innocent general public.

The state contended that on the basis of the materials available on record against the petitioner showing his anti-social and criminal activities in different cases for a considerable period which are prejudicial to the interest of the public at large and as the fact remains when the normal law of the land failed to curb the anti-social activities of the petitioner, the detaining authority was compelled to take recourse under the provision contained in NSA. The counsel appearing for the State also contended that the detention has been carried out as per procedure established by law.

Court’s observations

The court observed that “Preventive detention is not to punish a person for something he has done but to prevent him from doing it”. The detention order was passed basis his involvement his cases without disclosing circumstances for likelihood of breach of public order. The court held that for this reason, the detention order cannot be sustained.

The court also threw in a word of caution to be exercised by detaining authority as well as State government when confirming a detention order that the nature of allegations and offences alleged in the grounds of detention relate to public order and the grounds of detention should be prejudicial to maintenance of public order or they only relate to “law and order”.

The court held that the detaining authorities should exercise the privileges sparingly and “in those cases only where there is full satisfaction”. The court stated that “there would have to be a nexus between the detention order and the alleged offence in respect of which he was to be detained and in absence of a live link between the two, the detention order could not be defended”.

Court’s findings

The court held that, “Detaining Authority did not apply its mind before passing the order of detention so as to take the present petitioner to be a dangerous person and that he has become a threat to the public order”. It further stated that the “Detaining Authority has failed to strike a balance between the Constitutional and the legal obligation charged upon him before passing the detention order and the manner in which the power of detention has been exercised in this case”.

The court further observed that “Preventive detention is an exception to the normal procedure and is sanctioned and authorized for very limited purpose under Article 22(3)(b) with good deal of safeguards. The exercise of that power of preventive detention must be with proper circumspection and due care.”

The court stated that “legal obligation in this type of case, need to be discharged with great sense of responsibility even if the satisfaction to be derived is a subjective satisfaction such subjective satisfaction has to be based on objective facts.” The court declared the detention order to be illegal, bad in law and directed that the petitioner should not be kept in custody under this detention order. The court clarified that this order does not affect the criminal trials pending against the petitioner.

The complete order may be read here.

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The post Preventive detention must be with proper circumspection: Orissa HC appeared first on SabrangIndia.

Indian Parliament is on the  verge of passing a freshly  drafted, preventive detention leg islation, the Criminal Law 
Amendment Bill, 1998 (CLA) that is a brazen measure aimed at stifling democratic dissent and which, moreover exposes a sinister motive of incorporating a preventive detention law permanently within the criminal law statute.

Inherent to all preventive detention laws are severe curtailments of basic rights of the citizen, rights related to grounds for arrest, detention, fair trial and other crucial checks and balances on a law and order machinery that, with arbitrary power under law, could well misuse these against the detainee.

The present Bill was introduced by the ministry of home affairs under Congress rule in May 1995. The draft of the new legislation proposed then to replace TADA after toning down some of the harsher provisions contained within TADA. The government proposed to rush it through with open support of the Bharatiya Janata Party (BJP) but this attempt was stalled. A working paper circulated by the Law Commission in early 2000 with the revised draft, the CLA, 1998 reveals that the proposed law is a replica of TADA, with some additional draconian features brought back in. Following highly critical feedback on the new Bill, the Law Commission,  is currently working on a revision of the working paper that is likely to be ready in April 2000.

The working paper of 1999 reveals a narrow and partisan view of the political situation in the country and our recent political history. The section Security Situation in the Country  contains statistics and other data concerned with acts of violence in Jammu and Kashmir, Punjab and the North-East. The Religious Fundamentalist Militancy section mentions that Muslim militancy increased after the bomb blasts in Mumbai, but there is no mention at all of the events before and on December 6, 1992 and the nationwide holocaust that followed.

In 1985 the following clauses contained within TADA were removed from the new Bill. They now re-appear in the CLA Bill of 1998.

Ø The pernicious clause (section 15) which made confessions before police officers admissible as evidence was deleted

Ø The right of appeal to the High Court (and not only to the Supreme Court was restored

Ø Restrictions on the right to bail were removed following judicial direction in Hitendra Thakur v/s State judgement, SC 255.

Ø Section 5 of TADA that had been incorporated into the new Bill, the section pertaining to the mere possession of arms in a notified area constituting an offence was also removed. This followed the SC judgement in the Sanjay Dutt  v/s State through CBI (1994 5SCC 410). This section is now back.

Ø Section 22 of TADA, 1987, also incorporated in the new Bill, which substituted a test identification parade with photo identification was deleted. This provision in TADA had also been held by the SC to be illegal in Kartar Singh. It is now back.

The new Bill sets dangerous precedents in the already black history of preventive detention in India

Ø TADA had to be specially notified in areas that were deemed to be fit for the operation of such a law, the CLA will automatically operate throughout the length and breadth of the country.

Ø The proposed CLA Bill, 1998 will remain in force for five full years. The Law Commission is of the opinion that India requires a permanent anti-terrorist law in view of the alarming  proportions that terrorism has acquired over the past few years.

Ø Modeled on UK and US Anti-Terrorism legislation, a factor that the government is using as justification, the CLA, 1998 omits critical features of accountability contained in the originator legislations. In those countries, government is bound to present annual details of arrests and convictions on the floor of Parliament to ensure a measure of accountability. No such measure of government accountability is contained here.

Ø In the wake of the bomb blasts in Coimbatore in February 1998 (that incidentally also followed three months after brutal bloodletting against the city’s Muslims in November 1997, the Tamil Nadu government enacted the Prevention of Terrorist Activities Act (POTA) which was only recently repealed due to sustained campaigns in that state. In early 1999, the Maharashtra government brought in the Control of Organised Crime Act, 1999 which also contains the most draconian provisions of TADA.  In such a situation, what will the combined effect of a surfeit of preventive detention be except to unlawfully and unconstitutionally vest more and more arbitrary powers with the police?

Ø Article 4 of the International Covenant on Civil and Political Rights (ICCPR) to which India is a signatory since 1979, permits states to derogate from certain sections when there is a ‘public emergency that threatens the life of the nation,’ and only ‘to the extent strictly required by the exigencies of the situation.’ This qualification makes it difficult to justify the application of CLA indiscriminately to all parts of the country.

India has a abysmal record of blatant human rights violations that include systematic encounter killings by the law and order machinery or security forces (note the senseless killings of four innocent Kashmiri Muslims near the Zontangri peak to ‘avenge’ the massacre of 35 Sikhs allegedly by foreign militants at Chitti Singhpora on March 20 by the Indian army and the police), a pathetic record of deaths and brutal torture in custody and a non-existent adherence to basic criminal law procedures in matters of arrest, detention and questioning. A new law that grants further immunity to the Indian state and the police from checks and balances from arbitrary misuse, is to put it mildly, ominous.

We are also a state with the longest history of preventive detention since our Independence barring the three-year period between 1977-1980. The worst human rights record was during decade-long existence of the Terrorist and Disputed Activities (Prevention) Act, 1987, the legislation first introduced in 1985 in the wake of Operation Bluestar in the Punjab and prime minister Indira Gandhi’s assassination and thereafter extended for a two year period until it was finally repealed on May 23, 1995. The repeal of TADA followed burgeoning protests from the human rights’ movement all over the country. 

Justice Ranganath Mishra, then chairperson of the National Human Rights Commission had publicly stated that the act had ‘been prima facie abused in Gujarat.’ He convened a meeting on August 22, 1993, at which several chief secretaries and home secretaries of states were present, to push for the review of its application. 

The official admission of allegations of misuse of TADA is evident from a letter by former union home minister, S.B.Chavan, dated July 27,1994 to the chief ministers of all states where TADA was applicable. The letter emphasised that TADA should not be used against political opponents, trade union leaders, journalists, former judges and civil servants. The very need for such a letter is evidence that such abuse of the law had been taking place.

The statement of objectives of the Act specified that TADA that is reproduced verbatim within the new Bill, was meant to curtail overt acts of terrorism in Punjab and Haryana. A spate of terrorism-related violence in the two years that followed between 1985-87 exposed the ineffectivity of TADA for the specific purpose that it was ostensibly enacted. 

On the contrary, TADA in ten years of its existence was actually used, highhandedly, against the Indian civilian population in different states, albeit those sections that the police and governments decided were most inconvenient at that particular moment in time. 

TADA was used to stifle any form of democratic protest. For example, 57 women belonging to the progressive organisation of women protesting against GATT were arrested under TADA in  Nandyal in Andhra Pradesh during a prime ministerial visit. By 1995, in 22 of the 25 states TADA had been notified for application. In ten years a staggering 52, 998 persons were arrested all over the country under TADA, of which only 448 were convicted. The rate of conviction of TADA detainees  was less than one per cent.

Maximum TADA detentions took place in the state of Gujarat that arrested 19,000 persons under that law. Trade unionists, environmental activists and citizens belonging to the minority community were the sufferers. The tale of Mumbai in December 1992-1993 is a sorry record of partisan and brutal police behaviour (see pages 23-24) against the state’s minorities. In the aggression and frenzy unleashed by the Maharashtra and Mumbai police following the bomb blasts of March 1993, members of the minority community were threatened with indiscriminate arrests under TADA and huge monies extorted from them under this threat. Muslim businessmen had then alleged that as much as Rs. 25 crores had been extorted from them in this fashion. 

The National Minorities Commission also passed a unanimous resolution condemning the misuse of the law against the minorities. Justice Rajinder Sachar, a retired chief justice of the Delhi High Court and senior functionary of the People’s Union for Civil Liberties (PUCL) had stated on record, “TADA is being misused…After Bombay (bomb blasts) many Muslims have been arrested under TADA.”

The revised CLA retains the earlier definition contained within TADA of a ‘terrorist act.’ However under section 3(1) it widens the scope of the definition. Apart from intentions to overawe the government, strike terror, alienate any section and adversely affect harmony, the definition of a terrorist act  has been expanded further.

To this already wide definition, the Law Commission has added the words, ‘threaten the unity, integrity, security and sovereignty of India.’ This section three is very wide and over-arching in its definition and scope. It includes within it acts that are both violent and non-violent.

 Within the political scenario that confronts us at the moment a profound battle rages on. It is a battle for the ideological and political future f the Indian state. Details of the battle apart, a major and contested issue is on what and who constitutes the threat to the unity, security and sovereignty of India. Arguably, some of us feel that the divisive and pernicious politics of the BJP-RSS-VHP-BD combine, overtly manifest in senior functionaries who occupy government posts today and who have as their goal the transformation of the Indian state from its current democratic character to an authoritarian and sectarian one, is the singular and greatest threat to our unity, our integrity and our security. 

Saying, believing and campaigning for what we believe could, for the sake of argument, immediately attract the provisions of these draconian sections. 

The really dangerous aspect of the section is that it seeks to punish political ‘intent’ as much as the act itself. Section 3(1) of the Act states that it is an offence to conspire, attempt, incite, abet, or assist in the preparation of a terrorist act, or to knowingly harbour or conceal a terrorist. Membership of terrorist gangs, holding of property derived from terrorist funds are also offences under the Act.  Section 4(2) also provides that whoever commits or conspires or attempts or abets advocates, advises, facilitates the preparation or commission of a disruptive act or harbours a disruptionist would also come within the purview of this section.

This section clearly violates section 19 (1)(a) of the Constitution that guarantees freedom of speech and expression. For example, a poet or a cartoonist merely expressing the opinion that a plebiscite should be held to determine the future status of Kashmir could well be held and tried as a disruptionist if this Bill becomes law. This means that anyone can be detained for peacefully expressing their views on matters of ordinary political debate and if found guilty would be sentenced for a minimum sentence of five years, considerably longer than the envisaged international human rights standards.

Under section 5 of the CLA enhanced penalties can be given for offences under the Arms Act, 1959, the Explosives Act, 1884, the Explosive Substances Act, 1908 or the Inflammable Substances Act, 1952 “with an intent to aid a terrorist or a disrputionist.” Offences related to the possession of arms have been linked to ostensible acts of terrorism in ways that are bound to make them deadly weapons in the hands of the police.

Section 3(8) of the proposed legislation makes the failure to disclose information to the police to prevent a terrorist act by any person liable to imprisonment for a year. All citizens have a moral duty to assist in the enforcement of law; the failure to do so here makes this omission a penal offence. Another way of legitimising police harassment and torture of relatives and friends of alleged terrorists? 

A critical feature of the Indian Constitution is the separation of the judiciary and the executive (Article 50). The CLA Bill seeks not only to erode this but also to vest extraordinary powers to the executive. The executive that is the government and its wing, the police have been given the power to frame all rules, mete out punishment, prescribe procedures, seize and confiscate property. Under section 6A the investigating officer (Superintendent of Police) can seize or attach property which at the stage of the investigation, he believes to be obtained by terrorist acts or the proceeds of terrorism.

In continuation of the thinking behind TADA, the CLA upholds the logic that special crimes need special procedures. Checks and balances in accordance with the basic rights of a citizen, rights relating to procedures for arrest, detention, ownership of FIRs and other police records, detailed at length in the CRPC, are given the complete go-by. Permanently.

Section 14c) of the CLA provides for not disclosing the identity of the witness even during cross-examination, while section 3(7) provides for the punishment to a person who may threaten the witness. Arbitrary tools for the police. It is a very serious matter that trade unions and other mass movements have been covered within the purview of the act. The provision implied in section 4(1)© is that if such organisations even by mistake become a party to violence, they can be booked under the section of ‘disruptive activities.’

The Bill gives no discretionary power of bail to the Court unless by prior consent of the public prosecutor. This provision from TADA was grossly misused especially in Gujarat. 

The Bill does not allow for appeal on the interlocutory order. Further, the Bill requires that the FIR must be ratified by the DGP within 10 days or the review committee within 30 days: since both are state authorities, it is unlikely that the verification will not take place. Section 13(5) provides that ‘a special court may if it thinks fit and for reasons recorded ….proceed with the trial in the absence of the accused or the pleader.’ 

This could allow for the grossest abuse. Section 18(2)(b) gives unlimited power to the police to retain the custody of the accused for 180 days without filing a charge sheet. Finally, section 17(3) restricts the period for appeal by the accused to only thirty days when Indian criminal law allows for sixty-ninety days.

Ironically all offences mentioned both in TADA and the CLA find mention in the Indian Penal Code –sections 121-A, 122, 124, 124-A, 153-A and 153-B, besides offences of rioting, grievous hurt, murder, dacoity and piracy.  The IPC also contains various offences relating to the Army, Navy and Air Force. In the past, for the protection of defence of the country, a statute like the Defence of India, Act 1962 was enacted which authorised the Central government to make such rules as appeared to be necessary for the Defence of India: civil defence, public safety, maintenance of public order, efficient conduct of military operations and security forces.

The experience of TADA and its brutal and insensitive application to the Indian civilian population is testimony of the desire and designs of a government and law and order machinery that wishes the experience to be repeated. Terrorism was not curtailed then, it was not even contained despite the existence of TADA On the contrary, thorough investigative procedures were given the go-by, dulling the professionalism of the law and order machinery that was simultaneously empowered by a brutal law to become trigger happy and break the law. Do we want this experience to be repeated? 

Archived from Communalism Combat, April 2000. Year 7  No, 58, Special Report 3

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