By Abhimanyu Chauhan and Vasudha Singh
[Abhimanyu Chauhan and Vasudha Singh are penultimate year students of LL.B. at Campus Law Centre, Faculty of Law, University of Delhi.]
The history of preventive detention in India extends as far back as 1818, when the Bengal State Prisoners Regulation Act [i] was enacted by the East India Company to control its subjects. It violated the principle of natural justice by decreeing that a person could be detained without trial for an infinite period of time on mere suspicion of a criminal act. A series of laws that curtailed the liberty of Indians followed, the most infamous of which was the Rowlatt Act of 1919, [ii] which triggered the first pan-India uprising against British rule.
After Independence, ‘preventive detention’ was included under Entry 9 and Entry 3 of the Union and the Concurrent List, respectively. Simultaneously, Articles 22(1) and (2) [iii] were introduced to protect detainees from being deprived of their liberty by arbitrary and unjust laws . An exception to these procedural safeguards was carved out by sub-clause (b) of Article 22(3). However, this ‘exception of preventive detention’ was never intended to facilitate executive supremacy. Dr. B.R Ambedkar elaborated in the Constituent Assembly that clauses (4) to (7) of the Article were not meant to give unrestricted power to the Executive or Legislature, but to act as a check on their authority to pass laws on the subject of preventive detention. [iv]
The History of Preventive Detention
The Supreme Court’s jurisprudence on preventive detention statutes in the post-Independence era ‘is marked by two glaring features: first, the Court has insulated the preventive detention regime from the rest of the fundamental rights chapter; and subsequently, within this (now) self-contained regime, it has upheld Executive supremacy and judicial deference.’ [v] This was enabled by first interpreting the Fundamental Rights contained in Part III of the Constitution as being mutually exclusive so that preventive detention laws were not required to be in consonance with any provisions of Part III save Article 22. [vi] Then, in ADM Jabalpur v. S.S Shukla, [vii] it was held that in the time of Emergency, larger public interest would prevail over individual rights. The right to decide what constituted public interest was left to the Executive. This created a ‘state of exception’, wherein exceptional powers were conferred on the Executive due to the perceived abnormal circumstances.
Over time, the ambit of the ‘state of exception’ was widened to include laws dealing with terrorism, such as the Terrorist & Disruptive Activities (Prevention) Act, 1985 (“TADA”) [viii] and the Prevention of Terrorism Act, 2002 (“POTA”). [ix] Section 20(8) of the TADA [x] and Section 49(7) of the POTA [xi] dictated that bail cannot be granted unless there were reasonable grounds for believing that the accused was not guilty of the offence. This amounted to shifting the burden of proof onto the accused and violating the tenet of ‘innocent until proven guilty’. Moreover, it was impossible to prove innocence at the pre-trial stage without the appreciation of evidence and cross-examination of witnesses. [xii] Hence, these Acts virtually prohibited grant of bail and were essentially preventive detention laws under the garb of anti-terrorism measures. While deciding the cases challenging the constitutionality of the TADA [xiii] and the POTA, [xiv] the Supreme Court discussed at length about the scourge of terrorism as a justification for the extraordinary means purported to tackle it. It thus legitimised the laws without testing them on the anvil of ‘reasonable’ restrictions to Fundamental Rights, by assuming that terrorism was enough of a menace to justify all restrictions. However, popular opposition led to the TADA being allowed to lapse in 1995 and the POTA being repealed in 2004, but their place was taken by an expanded Unlawful Activities (Prevention) Act, 1967 (“UAPA”), [xv] which is now the foremost anti-terrorism legislation in the country.
UAPA: Repeating the Past
The UAPA was enacted in 1967 to supplement existing preventive detention laws and later, to buttress anti-terrorism laws. [xvi] The first major change was introduced in 2004 [xvii] when the Central Government performed a sleight of hand by incorporating most of the repealed POTA’s provisions such as the definitions of ‘unlawful activity’ [xviii] and ‘terrorist act’ [xix] into the UAPA , in addition to the chapters on ‘punishment for terrorist activities’, [xx] ‘forfeiture of proceeds of terrorism’ [xxi] and ‘terrorist organisation’. [xxii] [xxiii] This move was particularly disingenuous as the ‘sunset clause’ (which provides for a periodic legislative review of the law in question) was dropped and the logic of ‘extraordinary situations’, which had justified the draconian anti-terrorism laws so far, was quietly relegated to the background by removing the caveat that such situations would be temporary. Thus, the ‘the state of exception’ was made a permanent feature of the legal landscape. [xxiv]
A closer look at the UAPA reveals that it is moulded with the purpose of conferring vast discretionary powers on the Executive so that it can act arbitrarily with no judicial oversight. [xxv] The definition of ‘unlawful activity ’ includes any activity that ‘disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India’ or ‘causes or is intended to cause disaffection against India’. [xxvi] This gives the Executive the power to designate virtually any political dissent as unlawful. The definition of ‘terrorist act’, as amended in 2008, [xxvii] includes any act ‘likely to threaten’ India’s ‘unity, integrity, security, economic security or sovereignty’ and adds ‘any other means’ at the end of a list of deadly means. [xxviii] It is thus overbroad and ambiguous, and encompasses far more than the definition promoted by the United Nations and defies Security Council Resolution 1456 which states that any measure taken by nations to combat terrorism must ‘comply with all their obligations under international law (..) in particular international human rights, refugee and humanitarian law.’ [xxix] ‘Membership’ of unlawful [xxx] and terrorist organisations [xxxi] is also criminalised without defining the purview of this membership . These statutes violate the fundamental rights of speech and association guaranteed to Indian citizens. [xxxii]
The process to ban an organisation by declaring it an unlawful [xxxiii] or terrorist organisation [xxxiv] violates one of the basic principles of natural justice, audi alteram partem, and is ‘akin to condemning a man unheard. It is kangaroo-court style justice.’ [xxxv] By way of an amendment in 2019, [xxxvi] the Union Government can now notify an individual as a ‘terrorist’ too under the same provisions that are used for ‘terrorist organisations’, without any proof or giving the accused an opportunity to be heard. Concerns had been raised in the Rajya Sabha while discussing the amendment that it widens the scope of application of an arbitrary and draconian law, and places an individual on a par with an organisation, ignoring his fundamental right to liberty and hence is ‘hopelessly unconstitutional.’ [xxxvii] The constitutional challenges to the Amendment are currently pending in the Supreme Court. [xxxviii]
The almost unlimited sanction provided to the State to arrest someone under these wide provisions has proved to be lethal when combined with unduly harsh bail requirements. Detainees can be kept in custody for up to 180 days, without a charge sheet being filed. [xxxix] Even after this period has lapsed, bail can only be granted if, on a perusal of the case diary and charge sheet, the court finds that the accusation is prima facie false. [xl] Not only does this run contrary to established legal norms of presumption of innocence, but realistically makes bail impossible, as in previous anti-terrorism laws. This amounts to preventive detention through the back door, without its minimal constitutional safeguards provided under Article 22. [xli] The fact that 66.6% of the UAPA cases in 2016 ended in acquittal or discharge [xlii] demonstrates that this law is used more for detaining people indefinitely than for prosecuting terrorists. This is clearly seen in the case of Safoora Zargar, where Ms. Zargar was imprisoned for 74 days despite being pregnant and at risk for health complications during a pandemic, and her bail applications were denied thrice. [xliii] Only in the face of mounting international and local condemnation, did the police not oppose her fourth bail plea on humanitarian grounds, and the Delhi High Court finally granted her bail with the caveat that the order would not be treated as a precedent. [xliv] Meanwhile, Mr. Varavara Rao and Ms. Shoma Sen were recently denied bail by the Special Court in the Bhima Koregaon case despite their failing health conditions and advanced ages which makes them especially vulnerable to the threat posed by COVID-19. [xlv]
The UAPA is treading the same path as previous preventive detention laws, in the guise of pre-trial detention. Similar to those statutes, its application is politically motivated to a large degree. Being prone to misuse by the authorities does not render a law unconstitutional. However, the possibility of misuse is inherent in laws that provide the Executive such abundant leeway. Rt. Hon. Srinivasa Sastri remarked about the Rowlatt Act , ‘The possession, in the hands of the Executive, of powers of this drastic nature will not hurt only the wicked. It will hurt the good as well as the bad.’ [xlvi] The Rowlatt Act’s example has often been evoked by the framers of the Constitution as a reminder to not follow in the footsteps of British authoritarianism, [xlvii] a warning that has gone unheeded so far. It is time to reclaim the cherished democratic ideals of India and its Constitution by replacing the current law with a just and reasonable one that can protect the country’s sovereignty without endangering the inviolable rights of its citizens.
[i] The Bengal State Prisoners Regulation, 1818 (Act 3 of 1818).
[ii] The Anarchical and Revolutionary Crimes Act, 1919 (Act 9 of 1919).
[iii] The Constitution of India, arts. 22(1), 22(2).
[iv] Constituent Assembly Debates on September 16,1949 available at: https://indiankanoon.org/doc/157329/ (last visited on June 05, 2020).
[v] Gautam Bhatia, Speech, Association, Personal Liberty, and the State of Exception: Jyoti Chorge v. State of Maharashtra, April 04, 2018, available at: https://ssrn.com/abstract=3156473 (last visited on June 06, 2020).
[vi] A.K Gopalan v. State of Madras, 1950 SCR 88.
[vii] 1976 SCR 172.
[viii] The Terrorist & Disruptive Activities (Prevention) Act, 1987 (Act 28 of 1987).
[ix] The Prevention of Terrorism Act, 2002 (Act 15 of 2002).
[x] Supra note [viii], art. 20(8).
[xi] Supra note [ix], art. 49(7).
[xii] Supra note [v].
[xiii] Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
[xiv] People’s Union for Civil Liberties & Anr v. Union of India, Writ Petition (Civil) 389 of 2002.
[xv] The Unlawful Activities (Prevention) Act, 1967 (Act 37 of 1967).
[xvi] Id., Preamble.
[xvii] The Unlawful Activities (Prevention) Amendment Act, 2004 (Act 29 of 2004).
[xviii] Supra note [xv], s.2(o).
[xix] Id., s.15.
[xx] Id., Chapter IV.
[xxi] Id., Chapter V.
[xxii] Id., Chapter VI.
[xxiii] Arun Ferreira and Vernon Gonsalves, “Fifty Years of Unreasonable Restrictions Under the Unlawful Activities Act” The Wire, March 09, 2017, available at: https://thewire.in/rights/uapa-anti-terrorism-laws (last visited on June 05, 2020).
[xxiv] Gautam Bhatia, “Bhima-Koregaon and the fault in our laws” The Hindu, July 02, 2018, available at: https://www.thehindu.com/opinion/lead/bhima-koregaon-and-the-fault-in-our-laws/article24305910.ece (last visited on June 06, 2020).
[xxvi] Supra note [xviii].
[xxvii] The Unlawful Activities (Prevention) Amendment Act, 2008 (Act 35 of 2008).
[xxviii] Supra note [xix].
[xxix] UN Security Council, SC Res 1456, SCOR, UN Doc S/Res/1456 (2003).
[xxx] Supra note [xv], s.10.
[xxxi] Id., s.20.
[xxxii] Supra note [iii], arts. 19(1)(a), 19(1)(c).
[xxxiii] Supra note [xv], s.3.
[xxxiv] Id., s.30.
[xxxv] Gautam Bhatia, “Jurisprudence of the judicial rubber stamp” The Hindu, Sept. 05, 2019, available at: https://www.thehindu.com/opinion/lead/jurisprudence-of-the-judicial-rubber-stamp/article29334498.ece (last visited on June 05, 2020).
[xxxvi] The Unlawful Activities (Prevention) Amendment Act, 2019 (Act 28 of 2019).
[xxxvii] Rajya Sabha Debates on August 02, 2019, available at: https://rsdebate.nic.in/handle/123456789/698063?viewItem=browse (last visited on July 03, 2020).
[xxxviii] Sajal Awasthi v. Union of India, Writ Petition (Civil) 1076 of 2019.
[xxxix] Supra note [xv], s.43D (2).
[xl] Id., s.43D (5).
[xli] Anuj Bhuwania, “UAPA: Legalising the Police State” Kafila, January 01, 2009, available at: https://kafila.online/2009/01/06/uapa-legalising-the-police-state/ (last visited on June 06, 2020).
[xlii] National Crime Records Bureau, “Crime in India 2016 Statistics” 466 (Ministry of Home Affairs, 2017), available at: https://ncrb.gov.in/sites/default/files/Crime%20in%20India%202016%20-%20Full%20Publication.pdf (last visited on July 05, 2020).
[xliii] “Delhi High Court sets Jamia scholar Safoora Zargar free on bail citing ‘humanitarian ground’” The Leaflet, June 23, 2020, available at: https://theleaflet.in/delhi-high-court-sets-jamia-scholar-safoora-zargar-free-on-bail-citing-humanitarian-ground/ (last visited on July 05, 2020).
[xlv] Nilima Dutta & Susan Abraham, “When Jail, not Bail, rules in a Pandemic” The Leaflet, June 29, 2020, available at: https://theleaflet.in/when-jail-not-bail-rules-in-a-pandemic/ (last visited on July 05, 2020).
[xlvi] Md. Sukur Ali v. State of Assam, (2011) 4 SCC 729.
[xlvii] Constituent Assembly Debates on September 15, 1949, available at: https://indiankanoon.org/doc/213750/ (last visited on June 05, 2020)