Between 1975 and 1977, the Emergency strengthened laws such as the Maintenance of Internal Security Act (MISA), which gave the State apparatus the right to arrest and detain a citizen for up to one year without due judicial process. These arrests were not for committing a crime, but because these persons were seen as risks to society. The Emergency’s end led to scrapping MISA and limiting the use of this preventive detention (PD). But as India moved on and the spotlight of concern over personal liberty dimmed, the old habits of those in power slowly resurfaced to make PD popular again. Today, we are at a point when, as per government data, almost one lakh people were arrested and detained under PD laws (such as the National Security Act, 1980) in 2018. In this context, it is imperative to understand what the PD regime is, and the problems it presents.
In the regular criminal justice system, the law, sensibly, works to limit arrest and custody. The police need credible basis to arrest, and pre-trial detention isn’t extended beyond 24 hours without some investigative purpose, and is also subject to periodic review. The law also carries safeguards for those arrested. These include a right to be informed of the grounds of arrest as soon as possible; to be presented before a judge within 24 hours; and, to be defended by a lawyer of one’s choice.
However, when it comes to the PD regime, none of the above holds true. PD laws allow arrests if an executive officer is satisfied that a person is dangerous to society, where different laws deal with different dangers. It is all right for no grounds to be given up to five days, and in some cases even 15 days, after arrest. Detainees are not produced before a judge at any point, nor is there periodic review of the need for detention. And, perhaps worst of all, detainees do not have the right to a lawyer.
Ordinarily, allegations examined by the police must go to trial before a judge, where evidence is led to prove guilt. But under the PD regime, the executive determinations of whether a person poses a threat are not tested at a trial by leading evidence, or examined by legally-trained persons. Here, matters of liberty are restricted to paper-pushing in government files. A judicial tribunal only comes in if there is a demand for detaining someone beyond three months. But, even then, there is no trial, no periodic review, and no legal assistance for the detenu.
The need for pre-emptive measures to tackle situations where a grave risk of harm exists is rarely questioned. To the supporters of PD, it makes little sense to only let the police act after a crime happens. However, this purported need for preventive powers by no means justifies the PD regime itself. Two concerns must be kept in mind.
First, detaining someone without trial might seem justifiable when there are threats to national security. The same cannot be said when it is used to deal with issues such as video piracy, as done in Karnataka for instance. This problem of scope goes beyond determining categories of risks in which to allow PD, and extends to the definition of these risks. By using notions, like public order, PD laws become prone to abuse. For instance, the National Security Act is used to arrest journalists critical of public figures. No clear limits of scope also means that rather than being used for “preventing” harm, PD laws are instead used in tandem with the regular criminal law to keep persons in custody for longer, with fewer questions asked.
Second, the PD regime’s sanction for arrest and detention for up to three months, without periodic review and no judicial oversight, is against the basic principles of our republic that is supposed to “zealously” guard liberty. What makes this issue worse is that this rights-denying process finds support through Article 22(3) of the Constitution, which expressly chose not to extend the minimal safeguards of the criminal justice system to PD laws. Whatever might have been the reasons that led the Constituent Assembly to make this choice for a fledgling nation reeling from the aftermath of Partition, those justifications cannot go unchallenged 70 years later in the world’s largest democracy. Especially, since Indian law’s appreciation and of the right to life and personal liberty and the interpretation of the Constitution itself, have undergone tremendous transformation during this time.
The spontaneous protests over the past few months revealed, among other things, that there exists dissatisfaction in the public between the existing state of the law, and what we want it to be. This is an opportune moment to train our attention on the PD laws. Is it justifiable for India to allow the arrest and detention of one lakh people in a year without ever producing them before a judge, denying them a public trial, and not allowing them any legal assistance?
Abhinav Sekhri is a Delhi-based lawyer
The views expressed are personal