Preventive Detention Laws Allow State To Carve Out Exception For Its Lawlessness : Mihir Desai, Senior Advocate

[This lecture on the topic 'The Problem Of Preventive Detention In India' was delivered on 23 November 2020 as part of the KG Kannabiran Lectures on Law, Justice and Human Rights – organised by the family of KG Kannabiran (1929-2010) to celebrate his life, work and its futures].

ABSTRACT

Preventive detention laws and special legislations like UAPA -- anti-terror laws as they are called -- allow the state to carve out exception for its own lawlessness. These are the laws which permit the state to claim that we are governed by the rule of law and on the other hand pass such legislations which violate the rule of law altogether. These are the laws which go against the basic tenets of the constitution, such as freedom, equality, right to life, liberty etc. It therefore becomes important to look at these laws which gives an exceptional power to the state over citizens -- to arrest them, to detain them, to charge them with offences which otherwise they may not be able to charge them with, keep them behind bars for years together, and also for ensuring that dissent in all forms is crushed.

I am extremely thankful to Kalpana and Vasanth for giving me this opportunity of speaking in the memory of somebody who one always considered to be the doyen of the human rights movement in India -- not just as a lawyer but also as an activist. I did not have the opportunity of working with him on a legal brief but I have had the opportunity of participating with him in various meetings, various fact finding tribunals. In fact Mr. Kannabiran passed away before the present national regime of Mr. Modi came about -- and possibly if he was alive he might have been in jail today looking at the way things are going. In 2002 after the riots in Gujarat when Mr. Modi was the Chief Minister, we had together participated in a tribunal -- an exhaustive tribunal which went on over weeks and weeks concerning the violence in Gujarat. And of course one has met him at other times also. So the memories of Mr. Kannabiran are very, very fond.

Everybody knows that his passion was as a lawyer for the defence in most of the cases -- and his critical insight -- I feel that his book, The Wages of Impunity (2004) should be made a compulsory reading in all law institutions and also non-law institutions where social sciences are being taught. I would like to quote from what he says in the book:

'While the rule of law is a civilising factor, it is at the same time an instrument that facilitates the uncritical acceptance of the deployment of violence for governance and to justify war. This interplay of violence and power has little to do with the ideology that states or governments profess' (p. 2).

This is precisely what I am going to elaborate and talk about today, but before I do that I just wanted to quote one more paragraph from another article from the same book where he says:

'Political discontent which was genuine to start with has never since been examined and no attempts have been made to resolve it. Instead discontent has been allowed to fester to be dealt with later as a law and order issue. That is discontent was outlawed de facto without overtly banning the activity. After the 44th Amendment it was no longer possible to invoke Emergency provisions to contain internal disturbance. They can only be invoked when there is a threat of armed rebellion within. When this amendment was brought about, the obvious intention was to prevent the state from frequently and on the slightest pretext resorting to emergency provisions to impose an arbitrary, authoritarian rule. Ironically this amendment seems to have given more space to the executive to introduce repressive legislation without the necessity of suspending any of the fundamental rights.' (p. 74).

And then he goes on to speak about how TADA etc. were introduced by the 44th Amendment permitting such enactments to be introduced. Obviously he is a major critic of the Emergency period. But even post-Emergency, his insights are quite amazing in various aspect which he covers in the book. Let me go into two issues that he was very passionate about, on which he has written and on which he has handled hundreds of cases. One is the issue concerning preventive detention; and the second is special legislations such as TADA and POTA and UAPA, ie, the amendments to the UAPA.

The reason why I want to go into this is that if one looks at the situation today, we need to put the detention laws and UAPA in their context. It is important to remember that most of the detention laws came not necessarily during the NDA government or during the BJP government. Majority of them came (a) through the Constitution and thereafter through various legislations passed by various Congress governments. The reason why I am going into these two aspects -- preventive detention and special legislations -- anti-terror laws as they call it -- is because these are the laws which allow the state to carve out exception for its own lawlessness. These are the laws which permit the state to on the one hand say that we are governed by the rule of law and on the other hand pass such legislations which violate the rule of law altogether. These are the laws which go against the basic tenets of the constitution, such as freedom, equality, right to life, liberty etc. So these are the laws, which, while they are within the framework of the rule of law, are actually in violation of the rule of law. And that is why it becomes important to look at these laws which gives an exceptional power to the state over citizens -- to arrest them, to detain them, to charge them with offences which otherwise they may not be able to charge them with, keep them behind bars for years together, and also for ensuring that dissent in all forms is crushed.

The reason why these laws become important today is because if we look at the last five or six years, I feel there has been a consistent and strong hollowing-out of institutions of accountability which are required in a democracy. Why do I say there has been a hollowing-out? If you see, under the Constitution as well as under various legislations, the Executive as well as the Legislature are required to be accountable to the people in various ways. One obvious way we know is of course elections -- every five years. That is one way of being accountable. But apart from elections there are various institutions set up such as the Election Commission, the Comptroller and Auditor General of India, the Parliament itself, the Lokayukta, the Right to Information Act and various provisions under that Act -- these are various institutions by which you can hold the Executive as well as the Legislature accountable. We have seen that consistently there has been an erosion of these institutions.

One can go on giving examples of how this erosion has happened, but just to give one or two examples, if you look at the Election Commission, you had five orders in the last election, where out of three Election Commissioners, one said that Mr. Modi has violated the Code of Conduct. On all five occasions, the other two disagreed. But that is fine, but they did not allow the dissent to be recorded; they did not allow the dissent to come out in public. And then this very Election Commissioner who gave a dissenting opinion --he and his wife immediately faced Income Tax ordeals. The law was used in order to threaten them, in order to terrorise them, and finally this gentleman had to leave. So that is as far as the Election Commission is concerned.

A similar thing happens with the CBI. We all know of the dispute between the Director and the Joint Director of CBI. Finally the Director was removed apparently because he wanted to investigate the Rafale deal, he was removed overnight although there was no power to remove him, somebody else was put in his place, etc. And judiciary we know. Initially the attempt was to somehow create a problem within the judiciary through NJAC -- the National Judicial Appointments Commission for appointment of judges of the higher courts -- Supreme Court struck it down but the Executive has found a way around it and has been able to put pressure on the judiciary in various ways -- through the IB, through not responding to any request from the judiciary, through helping individual members of the judiciary out when they are in trouble (such as trouble with sexual harassment case, such as the trouble with the Chief Minister committing suicide and naming some of the judges...). In all these respects, the Executive has been able to tame the judiciary.

Similarly with the RBI. You first had Raghuram Rajan who was removed because he did not agree; then they put their own man, Urijit Patel, who also did not agree so he was removed and a third person has been brought in...Lokayukta hardly functions. Nobody was appointed for a long time. CAG -- now they have Mr. GC Murmu who has been appointed as the head of the CAG who was the Principal Secretary during the Gujarat violence in Gujarat, during CM Modi's time who is under lot of cloud for various other reasons. Parliament itself is not allowed to function properly because you have a situation whereby question hour is taken away; various laws being passed as Money Bills making Rajya Sabha redundant, you have the entire office of the Leader of Opposition being done away with because of which on many of the appointments committees you don't have any member from the opposition; so what the Prime Minister says goes through.

There is a constant hollowing out of institutions of accountability apart from three other things: if you look at educational institutions, a complete erosion of autonomy of educational institutions -- violence, state violence being used within educational institutions, whether it is Aligarh, whether it is Jamia, whether it is JNU, one sees that constantly happening. You have similarly, the media being completely placed under control -- either the channels are owned by some people from the government or through the method of advertising or through the method now of using the UAPA to arrest journalists bringing out a chilling effect on journalists. These are various ways. Finally the civil society organisations -- the attempt in various ways either by filing cases against them, or using the FCRA (through amendment of FCRA or cancelling FCRA licenses) thereby preventing them from acting as effectively as they want to. So there are various ways in which the dissent of any kind is being crushed in our country today.

The two laws used primarily nowadays for crushing dissent are Unlawful Activities (Prevention) Act (UAPA) and the various Preventive Detention Laws. including the National Security Act which was used against Dr. Khafeel Khan in the context of what had happened in UttarPradesh. But let me just go back. In 1919 you had this famous Rowlatt Act being passed. What did Rowlatt Act provide? It provided essentially that persons could be kept in jail without trial for upto two years. It was a prevention detention law for two years without trial, and search without warrant. The title was Anarchical and Revolutionary Crimes Act, 1919, popularly referred to as Rowlatt Act. There was a huge protest against it, and one of the most significant symbol of the protest is the Jallianwala Bagh massacre where the meeting took place to protest against Rowlatt Act -- to protest against preventive detention law which people felt would be misused. And of course thereafter Gandhiji's satyagraha started, the non-cooperation movement, civil disobedience movement etc. started and the act had to be withdrawn because the national movement believed that this law was what they called (perhaps inappropriately) a 'black law' that needed to go because it allowed the police executive power to preventively detain people. After the law was forced to be withdrawn, we had the Defence of India Act, 1939.

The question arose during the Constituent Assembly debates and thereafter as to what do you do with preventive detention. Throughout the national movement had always opposed preventive detention. They said you charge a person, you convict a person, you jail a person -- which is one thing. But without charging a person, without convicting a person, how do you put him behind bars? The freedom movement was about freedom. So you cannot put people behind bars unless you charge them and there is some kind of conviction. This was the question before the Constituent Assembly. Do we have preventive detention or not? Finally for whatever reasons, it was agreed, and I think it was wrongly agreed, to have preventive detention law as part of the constitution – Article 22 of the Constitution of India permits preventive detention but in limited circumstances. So – limited preventive detention for three months; more than that only if a review committee actually goes through the grounds of detention and finds it justifiable; review committee must be headed by somebody who is qualified to be a high court judge etc. And more than that only if the Parliament by law prescribes it. Immediately after the Constitution was formulated, you have the first preventive detention law. This law had a sunset clause. Namely, it will be there for two years, and at the end of two years it will be seen if it should be continued or removed. This went on till 1967. Every two years the law was renewed. In 1967, the Congress government lost about 6 state assemblies and felt that one of the reasons why they lost was because preventive detention was being misused, so they allowed it to lapse. But in another year's time we had MISA (Maintenance of Internal Security Act, 1971) -- again a preventive detention law, which was misused and became a symbol of government lawlessness during the Emergency -- so MISA was repealed in 1978 (Act 27 of 1978).

In 1980 the National Security Act (NSA) came, which is now the act which deals with preventive detention other allowing preventive detention upto one year. This, unlike what happened in the 50s and 60s was not a law meant for a year, or two years or three years. The oppressive law, ie, the Preventive Detention Act, 1950 which initially was supposedly temporary now acquired a permanence in 1980 by NSA being a permanent law for preventive detention. It is no more subject to Parliamentary scrutiny every year or two years – it is a permanent fixture of our laws. Similarly, this happened with Unlawful Activities (Prevention) Act (UAPA), the other exception law -- the other terrorist law.

Before 1984- 85, you did not have any anti-terror laws in India. If anybody committed an act of terrorism he could be tried -- so if somebody died you could be tried for murder, you could be tried for rioting, you could be tried for attempt to murder, you could be tried for dacoity, or whatever. In 1985, after the violence against Sikhs in 1984, Terrorist and Disruptive Activities (Prevention) Act (TADA) was brought in. Before 1985, actually there was another act brought in, which was basically a precursor to TADA for one year. It was The Terrorist Affected Areas (Special Courts) Act, 1984 (Act No. 61 of 1984) which designated certain areas as terrorist affected and special laws be applied there. This was replaced by TADA in 1985.

What did TADA do, which the other laws did not do -- apart from defining what is a terrorist activity etc. It did three or four things. And that is why I think it is important to understand how TADA is different from the normal law. Under the normal Criminal Procedure Code there are two rights available to a person who is likely to be arrested or who is arrested. The first is, I have a right to apply for anticipatory bail -- even if I am charged with murder, I can still apply for anticipatory bail. If the court is satisfied that the grounds against me are not strong enough, the court can very well say, 'grant him anticipatory bail, there is no need to arrest him. Impose conditions, but don't arrest.' TADA does away with anticipatory bail. If I am likely to be arrested under TADA, I cannot avail of anticipatory bail. Similarly, as far as bail is concerned, ordinarily what happens is that once you are arrested, the court will find out whether you are likely to abscond, you are likely to tamper with evidence or not, put some conditions and after some time grant you bail. But under TADA, there is a special provision which says that you cannot grant bail to somebody unless the court comes to the conclusion that the person is not guilty of such offences. So at the stage of bail, before the evidence is led, before the trial begins, the court should come to a conclusion that the person is not guilty of such offence and only then bail can be granted. One can imagine how many people would have been granted bail -- hardly anyone. So bail was basically denied -- although bail not jail is the principle which is supposed to be followed. Thirdly, ordinarily police custody is for fifteen days when police torture you etc. -- now this was extended to one month. The chargesheet gives you the grounds on which you are arrested finally. Normally this has to be filed within 60 days. Under this Act there was an extended period of one year given to file a chargesheet – which means for one year you do not know the detailed grounds on which you are arrested. You will not get bail because no judge is going to say you are not guilty if nobody knows why you are arrested. Effectively therefore, it allowed preventive detention for one year without taking recourse to preventive detention laws. This is what TADA did.

Apart from that, there were certain kinds of privilege given to witnesses – if the judge felt that certain witnesses were sensitive, the accused was not entitled to know the names of the witnesses. The names were not revealed till cross examination and thus there was no time to prepare; and on the other hand the redacted statement of a witness could be used to deny bail. You can imagine the kind of problem this created. Similarly, confession of a co-accused which is otherwise not admissible in law, was made admissible. There was a presumption -- suppose you were found at a place where arms are found, or suppose your fingerprints were found at some place where there was an explosion, you might be a passer-by or anybody, but there was a presumption that you are a terrorist and the presumption had to be rebutted by you. There could be attachment of your property etc. This was the situation as far as TADA was concerned. But TADA had a sunset clause – it had to be reviewed every two years by the Parliament – so it would go back before Parliament which would then have to decide as to whether to continue or not.

TADA was taken to the Supreme Court, which upheld the validity of TADA, with certain generalisations/exceptions. But finally, there were major protests against TADA. The reason was this. In 1994, there were 70,000 undertrials across India under TADA. They were not subjected to trial, many of them were inside for years together because the trial had not started and the rate of conviction under TADA despite all the flexibilities and relaxations in criminal law, was one percent compared to the conviction rate in normal crimes which was at 44 percent at that time. It is important to remember the relaxations: burden of proof has shifted, witnesses can be confidential, confessions made by you can be used against a co-accused, and confessions made to a police officer was permitted unlike under normal criminal law where a confession has to be made before a magistrate.

So you had one percent conviction rate, massive misuse of TADA, you had people who had nothing to do with terrorism, persons who were basically opposed to rises in milk prices in Gujarat being arrested under TADA, you had people striking for their genuine rights as workers being arrested under TADA. Finally in 1995, the central government allowed TADA to lapse.

After that, in 2000, the government formed a committee to decide whether we need a permanent law for dealing with terrorism. In 2001 there were two important events. The first was the attacks on the World Trade Center in New York and the second the Parliament attack in India. Using this as a reason, the government came up with what was known as POTO – Prevention of Terrorism Ordinance, 2001 – this later got converted into POTA – Prevention of Terrorism Act, 2002. This is similar to TADA with two or three differences. One, this is also subject to a sunset clause, i.e. every three years it has to be reviewed, and unless it is specifically continued by the Parliament it would stand repealed – instead of 2 years under TADA, it was 3 years here. The confession which was still permissible to be made to a police officer and not necessarily to a magistrate, was admissible as evidence but not against a co-accused unlike TADA. There were two other aspects – one, a review committee was set up which would review cases of people charged under TADA and assess whether these cases would be continued or not. There was a kind of a filter. Second, as far as bail was concerned, like in TADA, bail would not be possible unless a court finds 'not guilty' – but this was to appear only in the first year of the custody. After the first year of arrest, the normal bail provisions of the Criminal Procedure Code would apply.

Again the problem with POTA was that it was misused massively. Arrests were arbitrary –politicians, people who were striking, people protesting against their houses being demolished, etc. Even before that POTA was opposed by opposition parties so it could not be passed through Rajya Sabha. It was one of the unique occasions when Parliament called a Joint Parliamentary Session of Lok Sabha and Rajya Sabha – it was only then that POTA could be passed. The Congress in 2004 (UPA) gave an assurance that it would do away with POTA if they came to power. When they came to power, POTA was repealed (Prevention of Terrorism (Repeal) Act 2004) on 21 September 2004. On the same day that they repealed POTA, they brought out an Amendment to the UAPA – Unlawful Activities (Prevention) Amendment Act, 2004. The UAPA already existed in the law books since 1967. But that law essentially dealt with banning certain organisations which spoke against unity, integrity of India, and which talked about secession. It was not a law dealing with terrorism. In the 2004 amendment to this law, and subsequent amendments in 2008, 2013 and now in 2019 – basically the provisions concerning terrorism were incorporated from POTA into UAPA. So while POTA is repealed, you have UAPA coming in with similar provisions and minor changes here and there.

There are some aspects of UAPA that we must focus on: 'unlawful activity' and 'unlawful associations.' Unlawful Associations are those which from time to time will be declared as unlawful if that association is found to be acting against the unity and integrity of India or secession. this declaration is made through an official government gazette notification. Second is 'Terrorist Organisations' – those which are named in the schedule to the Act itself. There are more than 40 organisations named in the schedule which are classified as terrorist organisations. Repealing POTA did not make any difference to what kind of act would now come into place.

I personally feel there are at least three aspects which are worse in UAPA than POTA. First, review committees, which were mandated under POTA are completely done away with under UAPA. Second, the one year limit on strict bail conditions after which normal bail conditions would apply under POTA has been done away with in UAPA. This means that for ever and after – till the trial is over, the strict bail conditions will apply. This makes grant of bail very, very unlikely. The third aspect is with reference to the sunset clauses in TADA and POTA and like preventive detention initially had. Just as the temporary law of preventive detention got converted into a permanent law in 1980, similarly, UAPA acquired the character of a permanent anti-terrorism law without any sunset clause. The advantage of a sunset clause is that it has to be reviewed constantly, it has to be placed before the Parliament, it has to be debated in Parliament. Here there is no reason for any debate, no justification etc. UAPA is a much more oppressive law than POTA or TADA ever were.

I will briefly speak about the ways in which UAPA has been used in the present times and why it is absolutely essential that one doesn't call for dilution of UAPA -- one calls for repeal of UAPA. There are at least three cases going on right now when UAPA has been majorly used – Bhima Koregaon case which happened in Maharashtra but has acquired a national flavour where everybody who is arrested is charged with being a terrorist and put behind bars whether that person has anything to do with terrorism, whether that person has ever entered Bhima Koregaon, whether that person ever entered a forest is irrelevant. You are charged and put behind bars; the second case is the Delhi Riots case where the victims have now become the accused through the UAPA. This law has been used against various people saying that actually those who are victims and those who called for peaceful protests, those who always supported Gandhian ideals of peaceful satyagraha and non-violence have been now charged with being terrorists and been put behind bars -- and many more people are likely to be arrested. The third case is the Hathras case where the girl was mercilessly raped and beaten and killed, her body burnt overnight by a total collaboration between the police and the upper caste men. Journalists who try to investigate what is happening are being charged under UAPA as being terrorists, performing unlawful activities etc. There are various ways in which you can crush or quieten dissent. One of the ways, as I said when I began, is by hollowing out various institutions. It is not as if UAPA or TADA or preventive detention law was not misused earlier -- they were misused massively. In fact many, many people would say that the worst atrocities happened during the Emergency — 1975-77. But we must remember two things. That Emergency was a phenomenon to protect an individual, or one or two individuals. As soon as those people felt protected Emergency was lifted. It was a temporary event. Once it was over, things started getting normalised.

Presently we are not dealing with a temporary event. We are dealing with the spread of an ideology which seeks to establish permanence in our society; which seeks to establish itself as the only ideology which will be acceptable in the society. In order to do that it has to root out dissent. It has to root out any kind of objections to the way it functions. And it will choose legal as well as extra-legal methods of doing so. Various extra-legal methods can be used such as individual killings (Gauri Lankesh, Dabholkar and various others) -- but individual killings only kill the individual, create some sort of a chilling effect for the time being and people again start protesting. With these kind of conspiracy cases which they are building up -- Bhima Koregaon, Delhi et., what they are doing is, they may not be killing an individual but they are creating an atmosphere of fear which will affect not one individual but a large number of people (like everywhere, 20 people arrested, 40 people arrested...) and it will affect them for a long period of time till the trial ends… so another 8 or 10 or 15 years. Imagine the chilling effect of these kinds of trials especially on people who are seen as leaders of the civil society.

They are no more interested in the foot soldiers. They are interested in attacking who they consider are the leaders of the society and are using this law, UAPA to keep people behind bars irrespective of whether conviction comes or not, for a long long period of time. They have acquired a mastery over this law, UAPA – brand anybody as anti-national, brand anybody as violent, brand anybody as urban naxal, put them behind bars. The judiciary has been pathetically bad as far as responding to these kinds of cases is concerned – whether it is Romila Thapar's case in Supreme Court or whether it is the recent case called Watali'scase of the Supreme Court where the Supreme Court said that at the time of granting bail, the court will not look at the admissibility of evidence which the police produce. So the police produce any fabricated documents, and the courts are not supposed to look at them till the trial is over.

The use of the law -- not its misuse -- is to keep people behind bars for years and years together without there being any justifiable cause. Therefore I feel that it is time that we all demand that a law like UAPA be repealed altogether.

We don't need a law like this in order to fight terrorism. There are enough provisions under the IPC -- murder, dacoity, hate speech, sedition (I don't agree with it, but it is there), waging war against the government – all these offences are covered under IPC. We don't need this separate law. We should ask for the repeal of this law because it is only needed to crush dissent. Let me say at the end that we do miss Mr. Kannabiran at this time because this is the time when I believe that his ideas, his strength as a lawyer and his strength as a human rights activist is badly needed. Unfortunately, we don't have him with us but we still have his ideals and his principles to go by. Let us try and go by that and let us see how we can move forward. Thank you.

[Senior Advocate Mihir Desai practices civil and criminal law in Bombay High Court, Mumbai and the Supreme Court of India. He is Vice President of Peoples' Union for Civil Liberties. He is a human rights lawyer who has taken up cases of mass communal and caste violence, state violence, free speech, the rights of journalists and political dissenters and has been closely involved in fact finding missions and citizens' tribunals on questions of human rights in India]

This is the third lecture of K G Kannabiran memorial lectures.

[The previous two lectures :

Lecture by Justice B Sudershan Reddy, former Supreme Court Judge -Death Of Democratic Institutions: The Inevitable Logic of Neo-Liberal Political Economy & Abandonment of Directive Principles of State Policy.

Second lecture by Advocate B Nalin Kumar -'A Lawyer With High Principles' : A Junior Remembers His Senior KG Kannabiran]

Video of Mihir Desai's lecture :