The harsh provisions of central laws are often used for preventive detention in Assam, Uttar Pradesh, and Haryana. Here, SHIVANSH SAXENA explains the less-talked-about legislations passed by the Assemblies of these states, which are no less arbitrary.
The Constitution expressly authorises Parliament to pass laws that allow preventive detention for reasons related to state security, public order, or maintaining essential supplies. These laws do not have to adhere to basic procedural rights. Other than the Central Acts, used for preventive detention in Assam, Uttar Pradesh, and Haryana, there are several less-talked-about acts passed by the Assemblies of these states.
Preventive detention in Assam
The Assam government detains people under the National Security Act, 1980, but the state Assembly also enacted the Assam Preventive Detention Act (APDA) on 19 July 1980, which gave immense powers to detain people to prevent them from acts that may be prejudicial to state security, public order, and so on. The power to detain rests with any officer of the state government, not below the rank of a secretary or district magistrate.
Preventive detention means detention without the possibility of a criminal trial. That is, no crime is proven, and no complaint is filed. Preventive detention laws deviate from standard criminal law procedure and create special powers that allow detention on suspicion.
Section 3 uses the phrase “acting in any manner prejudicial to the security of the State, the maintenance of public order or the maintenance of supplies and service essential to the community”, which is defined under the Explanation to sub-section 1 of section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. This section says it means “committing or instigating any person to commit any offence punishable”. The maximum period of detention was six months earlier but in 2011 it was amended to 12 months.
Sections 4 and 16 of the APDA make room for arbitrary detention without any accountability. It says, “A detention order may be executed at any place in India.” This means the power to preventively detain extends to anyone throughout the country, purely based on the state’s judgement of character.
Section 16 gives the state and its officers immunity from prosecution or any other legal proceedings for acts performed in “good faith”. Good faith is a term that moulds like clay when used in the context of states as per the state’s convenience. This ends up violating the civil liberties of the detained person(s). Such immunity from prosecution can be traced to the draconian Armed Forces (Special Powers) Act, 1958 as well.
Also read: http://www.legalserviceindia.com/legal/article-751-preventive-detention.html
The discretionary powers in APDA lie with the Advisory Board, which constitutes of one serving judge of the Guwahati High Court and two retired or serving judges of any high court. The board has to submit a report to the state government within seven weeks containing the majority opinion on whether there is sufficient cause for the detention of the person. If there is not, the detention order is revoked to release the person.
There is, however, a lacuna: the proceedings of the Advisory Board are confidential. Such opacity in administration can become a tool to suppress political dissent. In this context, the “laxity and casualness” of the state in exercising power in the case of grassroots leader Akhil Gogoi has been pointed out by the Guwahati High Court as well.
Also read: https://timesofindia.indiatimes.com/india/civil-disturbance-cant-be-uapa-offence-hc-upholds-bail-to-akhil-gogoi/articleshow/82057918.cms
Uttar Pradesh is infamous for detaining persons, mostly in the cases related to alleged cow slaughter, under the National Security Act, 1980. A study by the Indian Express has shown the arbitrariness with which this law is being applied in recent years. How cow slaughter can breach public order or security of the state is yet to be clarified by state officials who level these charges against the accused.
Twelve detentions under the NSA between January 2018 and December 2020, lasted over 200 days after a court had already issued bail. In three detentions, the person was detained for more than 300 days, in one case for 325 days, and another for 308 days. Apart from the central NSA, there is also the Uttar Pradesh Control of Goondas Act, 1970 which allows “externment” of “goondas”.
The act defines a “goonda” as a person who, either by himself or as a member or leader of a gang, habitually commits or attempts to commit or abets offences. Section 2(b) contains eleven markers to determine whether a person is a “goonda” under the act. It, too, is arbitrary, as it takes under its ambit one who is “generally reputed to be a person who is desperate and dangerous to the community”.
The Goonda Act in Uttar Pradesh has a wide sweep. It can lead to a decision to ‘extern’ just about anybody the state authorities wish to perceive as a goonda.
In the APDA or NSA, the discretion lay with the Advisory Board. In the Control of Goondas Act, discretion rests with the District Magistrate. This heightens the chances that this act will become a tool of exploitation by the state government. Recently, the state Assembly passed a bill that amends the Goonda Act to empower joint and deputy commissioners of police to take action under the law as well. The bill is with the Legislative Council at present.
Although the Advisory Board has turned out to be a toothless tiger in safeguarding the rights of the detainee, getting slapped with an NSA charge means that even after securing bail from the courts, a detained person may not be released. Significantly, in all the cases under scrutiny, the board upheld the detention.
On the other hand, in Uttar Pradesh, once a person “appears” to be a goonda to the District Magistrate, he shall direct the goonda to remove himself outside his jurisdiction or restrict the possession or use by him of any article specified in the order.
Detained persons have the right to know the allegations against themselves, consult a counsel of their choice, and reasonable opportunity to explain themselves regarding the allegations through witnesses that support their explanation.
However, this can be restricted by the District Magistrate if he thinks that the request is being made to cause delays. The maximum detention period cannot exceed two years.
If a person is aggrieved by an order made under section 3, 4, or 5 of the Act, they may appeal to the Commissioner within fifteen days. The commissioner can confirm the order, modify it, set it aside, or pending disposal of the appeal, stay it on terms he sees fit. It is pertinent that all adjudicating authorities under the Goondas Act are under the state government and not a part of the judiciary which also explains the state of affairs in Uttar Pradesh.
On 25 November, the Punjab and Haryana High Court issued a notice to the Haryana government in a habeas corpus petition filed by an advocacy group formed by farmers seeking the release of over 100 farmers who were allegedly detained at midnight before the farmer protest in Delhi. The houses of farmer leaders were raided between 1 am and 3 am as if they were wanted criminals.
At least 500 farm outfits from across the country extended support to the “Delhi Chalo” call by the All India Kisan Sangharsh Coordination Committee (AIKSCC) under which agitating farmers wanted to reach the Capital on 26-27 November 2020, to press the central government to scrap three contentious farm legislations.
The detenues were given no ground for arrest or details of any offence they committed even to this day. The state has not filed its response and even the law under which 100 people were detained is yet to be disclosed.
Also read: https://www.livemint.com/news/india/necessary-to-instil-fear-haryana-cm-khattar-after-assembly-passes-bill-to-recover-property-damage-from-protesters-11616119500310.html
The Punjab Security of State Act, 1953 seeks to prevent any person from acting prejudicially to state security, public order (section 7), and so on. Like the Uttar Pradesh Goondas Act, the detention order is also tendered by the District Magistrate. Section 6 of the Act gives the District Magistrate the power to prohibit any procession or demonstration at any public place.
The state government has to constitute an Advisory Council consisting of a chairman and two members, all serving or retired high court judges. The Advisory Council submits its report to the state government within thirty days, on which basis the state government can confirm, modify, or cancel the restrictions.
The government sought to stifle the voices of people by arresting and detaining farmers under preventive measures.
This correspondence between the government and the Advisory Council is confidential. Even courts are barred from extracting any document from any public servant. However, RTI can help reveal their content to the public at times.
Why not preventive detention
Proponents in India and elsewhere justify preventive detention as necessary to, for example, deter terrorist attacks or respond to existential national crises. They claim that the gravity of the danger justifies the restrictions on fundamental rights.
Although most foreign supporters see preventive detention as a last resort in unusual situations, India employs it on an everyday basis to deal with ordinary criminal matters.
In a democratic constitutional order, such usage cannot be justified. Unfortunately, there is a propensity to characterise contentious practices as “exceptional measures” that can only be explained by appeals to necessity. Preventive detention obscures important faultlines in international society and so precludes the substantive debate needed to develop long-term, precise definitions of fundamental rights.
(Shivansh Saxena is a student at the Vivekananda Institute of Professional Studies, IP University. The views expressed are personal.)
The article was originally published in The Leaflet.