A democratically elected government cannot throttle free speech and criticism of its policies by using police power, writes A Saravanan.

Arrest of activists in TN show preventive detention laws have no place in a democracy Facebook/ Valarmathi
Voices Opinion Wednesday, July 26, 2017 - 12:32

The expression preventive detention has not been defined in the Constitution. When we say preventive detention, it means that we are detaining someone to prevent him from doing something illegal. Preventive detention is not punitive but a precautionary one. Preventive detention is done in anticipation that someone will commit a crime, whereas criminal proceedings are there to punish someone for an offence committed by him. There is common perception that they are somehow connected, but they are mutually exclusive. Who takes the decision to detain somebody? Usually it is the executive authorities, a collector or the Commissioner of police.

In the case of Rekha vs State of TN the Supreme Court quips as follows:

“In the case of a preventive detention no offence is proved and justification of such detention is 'suspicion' or 'reasonable probability 'and there is no conviction which can only be warranted by legal evidence.  Preventive detention is often described as 'jurisdiction of suspicion '.”

Article 21 of our Constitution guarantees that no person shall be deprived of his life and liberty except according to the procedure established by law. Article 22(1) and (2) provides the safeguards when a person is arrested according to the procedure established by law. It offers a safeguard that when any person is arrested then he has to be immediately produced before a magistrate within 24 hours of the arrest and reasonable cause should be shown for his continued incarceration. However, in the case of preventive detention all the above safeguards are not available to the person who is detained under preventive custody, he need not be produced before the magistrate and the grounds of his arrest need not be informed to him immediately. That is why we call preventive detention laws as draconian and anathema to life and liberty.

In the state of Tamil Nadu recently there has been a spate of detentions under the preventive detention laws.  Those personalities who were detained, by any stretch of imagination will never come under the purview of such laws. The detentions of pro-Tamil May 17 movement leader Thirumurugan Gandhi and second-year journalism student Valarmathi under the Goondas Act are both capricious and mala fide exercise of the executive power. The allegation against Thirumurugan Gandhi is that he participated in an agitation against the government and the allegation against Valarmathi is that she was distributing pamphlets against the hydrocarbon scheme in Neduvasal.

A democratically elected government cannot throttle free speech and criticism of its policies by using police power. Several other arrests of prominent citizens, including professor and activist Jayaraman, director Divya Bharathi who have agitated against the government were also carried out by the Tamil Nadu police. This is to send a chill down the spine of the protesters and ensure that demonstrators are nipped in the bud. This has been opposed by the Opposition Parties.  MK Stalin, Leader of Opposition has condemned it and sought for the immediate release of Thirumurgan Gandhi, Valarmathi and Jayaraman.

Preventive detention laws should not have a place in a constitutional democracy like that of India.  Originally, the framers of our Constitution gave constitutional status to preventive detention because they wanted to prevent antisocial and subversive elements from disturbing a nascent democracy. If we look at the object of the Internal Security Act 1950 it says:

“The primary reason for the enactment of this legislation was the necessity to protect the country against wild activities organised in secrecy and intended to produce chaos".

Now the situation is different and we have made progress by leaps and bounds. Ours is one the fastest developing economies in the world. Certainly we do not need those draconian preventive detention laws.

If you look at the legal system of democratic countries all over the world there is no place for a preventive detention regimen, during times of peace. They allow for these preventive detention laws to come into existence during times of external aggression or an emergency. But India is the only country where the preventive detention laws are used even during times of peace.

Normally, a person who is detained under the preventive detention can approach the High Court by filing a Writ of Habeas corpus and can seek to set aside the detention. The executive authorities knowing fully well that their detention order will not stand judicial scrutiny still pass such detention orders. This is because of the reason that the High Courts take a lot of time to decide these cases. It will take a minimum of four to six months sometimes even nine months for this habeas corpus petition to be heard by the High Court. And till such time the habeas corpus petition is heard by the High Court, the detenu will still be inside the prison. The executive authorities use this time gap to invade the liberty of citizens of this country. Almost 90% of the detention orders are set aside by the High Court. The executive authorities are not made answerable if the detention order is set aside, either by the courts or by their superior authorities. No compensation is awarded to the victim/detenu when the detention order is struck down. This emboldens the executive authorities in the state of TN to slap detention orders merely on their whims and fancies and that of their political masters.

The Supreme Court of India on various occasions has held that preventive detention laws should be construed in a very strict manner because the life and liberty of a person is taken away merely on a subjective satisfaction of an executive authority, who is not answerable to the legislature or to the people.

The Supreme Court in the case of “Salem Advocate Bar Association vs Union of India” has laid down that in Habeas Corpus writs the entire case should be disposed within a period of 15 days giving precedence over other fast track cases. But this direction is never followed, if followed strictly then the endless preventive detention arrests will be controlled to a great extent. Till the existence of preventive detention laws and its rampant misuse we cannot call ourselves a mature democracy.

(A Saravanan is a practicing advocate at the Madras High Court and a spokesperson for the DMK)