Whenever protests and demonstrations erupt in India it is common practice for the government of the day to promptly declare Section 144 and arrest citizens en masse. The justification given will be that those individuals were arrested because there was “sufficient ground” that he/she was “likely to commit a breach of peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of peace or disturb the public tranquillity” etcetera etcetera. Such a broad definition leaves unlimited powers in the hands of the police to arrest anyone without rhyme or reason. It is a mystery how when masses of the public such as workers, peasants, tribals and minorities come out in protests against the arbitrary actions of the state, that can be construed by the law enforcement agencies as violating “public tranquillity”. In fact, people have been forced to come out on the streets in the first instance, precisely because the government has affected their tranquillity through its arbitrary and anti-people actions.
Another set of laws have been provided with powers of arbitrary arrests and preventive detention in the name of protecting “national security”. More often than not, these laws have been used not to prevent a crime against the security of the nation but to silence people and organisations who dare to speak out against the Government for violation of their fundamental rights. These laws vest unlimited powers in the police to circumvent the right of citizens to a fair trial. Not only that, they place the onus of proving innocence on the accused, flouting principles of natural justice. In principle, they operate as preventive detention laws, with the power to even criminalise intentions, beliefs and thoughts of a person.
The Unlawful Activities (Prevention) Act, 1967 (UAPA) is one such law, illustrative of the national security laws with powers of preventive detention. It has been in the limelight for quite some time for the wrong reasons. It was apparently enacted to combat terror and proscribe known terrorist organisations. The Indian Parliament, in the latest amendment to UAPA in July 2019, chose to proscribe individuals and their activities as well by paving the way to name individuals as terrorists even though they may have no affiliation with any of the 36 terrorist organisations referred to in the First Schedule of the Act. The Indian Government justified this amendment saying that it was required to effectively deal with terrorists and terrorist organisations who threaten the security of the country. But, terrorists have not been the only or even the prime target of UAPA. Its provisions, in the recent past, have been mainly used against those known to speak up for the oppressed, those who oppose the violation of human rights, those who condemned communal propaganda and many others who came out against the actions and policies of the government of the day.
The Home Minister, when arguing for the amendment in Parliament, justified naming an individual as a terrorist if he or she “is a terrorist worker or takes part in any terrorist act”. He also added that those who “help to promote or prepare for terrorism should also be designated as a terrorist(s)” including individuals “who raise(s) money to promote terrorism”. Since the responsibility of proving one’s innocence is with the accused and not with the State, and since it is difficult to establish that one did not “promote” or “prepare” for terrorism, the Act has been liberally used, to silence those who oppose the State for its discriminatory policies and actions through arbitrary arrests and preventive detention.
According to the National Crime Records Bureau, the total number of persons arrested under UAPA in 2018 was 1,421; those charge-sheeted (853), convicted (35), discharged (23) and acquitted (117). Over the years, only a small percentage has been convicted or acquitted. The rest of the accused have been languishing in prison for having been a thorn in the Government’s side. UAPA is only one of the many national security laws with such enormous and arbitrary powers to literally put behind bars anyone under the sun.
Preventive detention acts have onerous provisions relating to bail. First, those being investigated can be kept in custody for 180 days pending filing of the charge-sheet. Bail is refused if the court, on perusal of the case diary or upon filing of a charge-sheet, is of the opinion that there are reasonable grounds for believing that the accusations against the person are prima facie true. According to law the accused cannot have access to the case diary. As far as the charge-sheet is concerned, the court can act on a prima facie belief that the accusations are true. At that stage, the accused does not have a right to be heard by the court. This makes the law onerous and offensive, with no hope for the accused to access bail. Trials take endless time. At the end of 2018, of the 2,008 pending cases, only 317 were sent to trial. Acquittal at the end of a long trial is just a mockery of fair justice.
The violation of citizen’s rights taking recourse to preventive detention laws has a long and sordid history in India. Various governments which came to power since 1947 have, without any hesitation, abused the rights of citizens using these laws. Moreover, such draconian laws can be traced back to the colonial period (See Box 1 – History of Preventive Detention Laws in India).
When India gained independence, the people had expectations that the repressive laws used by the colonial regime against the freedom fighters would be buried into oblivion. But these expectations were shattered when the Preventive Detention Act (PDA), 1950 was passed as a “temporary measure” to deal with the challenges posed by violence and displacement during the partition of India. The law authorised the Government to detain individuals without charge for up to a year. But soon, the real purpose of such laws became evident. Leaders such as AK. Gopalan were arrested under this Act for organising protests. When introducing PDA as a temporary, twelve-month version, the then Minister of Home Affairs, Vallabhbhai Patel, said that permanent preventive detention powers “required closer study” before more lasting legislations can be passed. However, the Act was renewed annually for almost two decades before finally being allowed to expire in 1969. But other similar laws were already in place by then.
Preventive detention laws are vestiges of colonial rule. The provisions of these laws amply demonstrate that the rationale used by the British colonisers to persecute freedom fighters endures even today in these laws. During the Constitutional Debates, it was ironical that many members of the Constituent Assembly did not hesitate to build the provisions of preventive detention into the Constitutional framework, even when they themselves had been a target of such laws in the colonial period! (See Box 3 – Constitutional debates on Preventive Detention). The prospect of becoming the new rulers of India convinced them of the need to have iron-clad laws to curb any opposition and dissent from the people. Article 22, which concerns itself with “protection against arrest and detention” in the Fundamental Rights section of the Constitution, has overriding clauses which allow for preventive detention. Surprisingly, Preventive Detention laws are actually not in violation of the Indian Constitution. In actual fact, they draw their mandate from the restrictions imposed in the Constitution on the right to assembly. They are not in violation of the “rule of law” but fully conform to the law practiced in parliamentary representative democracies.
The International Covenant on Civil and Political Rights prohibits arbitrary arrest and detention (See Box 2 – Right against arbitrary arrest or detention in international laws).
Demands to remove these laws from the statute book have fallen on deaf ears. Arbitrary arrests and preventive detention of innocent citizens have only confirmed the fact again and again that our people are completely marginalised in the current political process. People do not have a right to even protest against these arbitrary laws, leave alone initiate legislation to guarantee their fundamental rights. The Indian Constitution does not provide guarantee for the fundamental rights of its citizens including the freedom of speech, of association and to conscience. There is a need for a people’s movement that questions the very premise of our Government’s security laws; the targeting of individuals who are not in agreement with the Government’s policies and actions; the long periods of wrongful confinement of innocent persons ending in acquittal; the torture of under-trials during interrogation; and the total absence of guarantee of our fundamental rights in the Constitution. People’s organisations must come together to contest these questions in public forums. Otherwise the right of association, of free speech and to conscience are really in peril.
Box 1 – History of Preventive Detention Laws in India
Bengal Regulation – 1818 – It was one of the first preventive detention laws in colonial India. In the name of preserving security of the state, it gave authority to place individuals “under personal restraint” notwithstanding the lack of “sufficient ground to institute any judicial proceeding”. The 1818 regulation was ultimately extended throughout India and remained in force until at least 1927. It was used to detain those with nationalist sympathies in pre-independent India. All preventive detention laws in India mirror this regulation in its principles of criminalising dissent and in the lack of having to prove suspicions to a standard of proof as present in ordinary law.
Defence of India Act – 1919 & 1935 (lapsed in 1946) – This was the wartime “emergency code” adopted from Britain. At the outset of World War II, the Colonial Government adopted the power to preventively detain anyone whose conduct was likely “prejudicial to the defence of British India, public safety, maintenance of public order, His Majesty’s relations with foreign powers or Indian states, maintenance of peaceful conditions in tribal areas or the efficient prosecution of the war.”
The rulers of Independent India drafted their own Defence of India Act in 1962. This emergency wartime preventive detention law corresponded to the World War II Defence of India Act of 1939, in letter and spirit. The 1962 iteration was infamously used against Indians of Chinese ethnicity, mostly residents of West Bengal. While the war between India and China lasted barely a month, those interned stayed in jail for many months after.
Rowlatt Act – 1919-1922 – It conferred authority to order the preventive detention of individuals for up to two years based on suspicion, especially in parts designated by the Government as “affected areas”. But the law did not define what constituted “anarchical and revolutionary movements” that it sought to combat. The Act eliminated right to appeal and denied right to representation by counsel.
Government of India Act – 1935 – It established elected, semi-autonomous Provincial Governments and explicitly granted provincial legislatures authority to enact preventive detention laws of their own. Even Congress-led Provincial Governments relied on the same measures as the British to maintain control. After the lapse of Defence of India Act 1939, the Governments kept the same principles alive by enacting “Public Safety Acts” authorising preventive detention in the absence of a formally declared emergency. Governors were authorised to legislate by ordinance to deal with “any persons committing, or conspiring, preparing, or attempting to commit, crimes of violence” intended to overthrow the government. This broad sweep of emergency powers conferred upon the Governor General by the 1935 Act led Winston Churchill to famously describe them as “likely to rouse Mussolini’s envy.”
The colonial state viewed every Indian as a potential criminal and “unlawful” agent working to destabilize the regime. This view persisted in governments led by Indian political parties after independence.
Preventive Detention Act (PDA – 1950-1969) – PDA was passed as a temporary measure to deal with the cases related to violence and displacement during the partition of India. The law authorised the Government to detain individuals without charge for up to a year. When introducing PDA as a temporary, twelve-month version, the then Minister of Home Affairs said that permanent preventive detention powers “required closer study” before more lasting legislations can be passed. However, the Act was annually reviewed by the Parliament and renewed repeatedly for almost two decades before finally being allowed to expire in 1969.
Unlawful Activities Prevention Act (UAPA – 1967 to present) – The Indian Government supplemented PDA’s preventive detention powers with the UAPA which gave it power to criminalise a broad spectrum of activities, which the government of the day found inconvenient. Under UAPA, bail is notoriously difficult to obtain. Accused can be held in custody for six months without even the filing of a charge sheet. Unlike PDA, the UAPA discarded the periodic review clause, thus making it valid indefinitely, unless repealed in Parliament.
Maintenance of Internal Security Act (MISA – 1971-77) – MISA was established immediately after the lapse of PDA in 1969. The preventive detention powers of the older law was re-instituted under a new name, and eventually strengthened in 1975 when Indira Gandhi’s Government declared a national emergency. MISA is infamous for its excesses during emergency when it was aggressively used against political opponents, trade unions and civil society groups that challenged the Government. MISA was repealed after the defeat of the Congress Government in 1977.
National Security Act (NSA – 1980 to present) – NSA is a special law instituted in 1980, and is popularly known as the law of “no vakil, no appeal, no daleel” (no lawyer, no appeal, no argument). It is similar to PDA and MISA in its preventive detention powers and closer to UAPA in not requiring a periodic review, despite grave human rights concerns. The law gives power to the Central and State Governments to detain individuals for a maximum period of 12 months. Under the Act, a person can be detained for up to 10 days without even being informed about the reasons for the detention. The Government is allowed to withhold information supporting the detention in “public interest” and a detained person is not allowed a lawyer during this period. NSA is one of the most draconian laws operating in the country, and is easily prone to misuse.
UAPA Amendments – 2004, 2008 & 2012 – POTA was repealed in 2004 amidst public outcry against its misuse. But alongside repealing it, the Government amended the 1967 UAPA to serve as an omnibus preventive detention law. After the November 26, 2008 terror attack in Mumbai, more provisions similar to POTA and TADA regarding maximum period in police custody, incarceration without a charge sheet and restrictions on bail were incorporated into the UAPA. Like NSA, the UAPA does not have any sunset clause that when there is a drop in perceived threat, there would be no need for the extraordinary legislation to continue.
Box 2 – Right against arbitrary arrest or detention in international laws
ICCPR Article 9 states:
- Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
- Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
- Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
- Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
- Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
The Indian Government has expressed reservation to Article 9 that “under the Indian Legal System, there is no enforceable right to compensation for persons claiming to be victims of unlawful arrest or detention against the State.”
Box 3 – Constitutional debates on Preventive Detention
Article 22 in the Constitution allows the Government to detain anyone without trial for at least three months and lets Parliament decide what should be the maximum time for which a person can be thus detained.
Many of those present in the Constituent Assembly appointed to frame the Constitution, themselves had been victims of colonial laws which allowed preventive detention. Yet, they argued for the same colonial provisions to be built into the Constitution because they were now acting as the representatives of the new Indian rulers in whose hands the British would transfer power and who planned to rule over the Indian people in the same way as the British.
A member of the Assembly, Purnima Banerjee objected saying “the article…is a very serious one as it takes away some of the liberties granted by Article 15 as fundamental rights and provides for the arrest of persons and even detention of persons without trial…any form of detention of persons without trial is obnoxious to the whole idea of democracy and to our whole way of thinking.”
On behalf of the drafting Committee, Dr Ambedkar defended the preventive detention provision. “I think it has to be recognised that in the present circumstances…, it may be necessary for the Executive to detain a person who is tampering either with public order … or with the Defence Services of the country. In such a case, I do not think that the exigency of the liberty of the individual should be placed above the interests of the State…” The “present circumstance” that he was referring to was the Partition which the British colonialists organised to leave the country divided and in a state of chaos.