Under the high command of Congress, the Andhra Pradesh government is blocking all democratic ways for the people seeking Telangana state, and now, using repressive laws which were once used by British colonial rulers to snub the nationalist movement. The state is going full swing in implementing dark chapter of ‘Justice Srikrishna Committee by suppressing the Telangana agitation with repressive law such as PD Act which legally does not exist. Though the PD laws are aimed at fighting destructive elements, their history shows that the rulers always used to stifle the voice of political opposition. In its enthusiasm, the State is using a repealed or struck down law – Preventive Detention Act, to jail the leader of Telangana Rasthra Samithi, Dr. Cheruku Sudhakar, who is also the champion of civil rights with leftist ideology. Interestingly, it realized the mistake and released him from the charge under non-existing PD Act only to recharge him on the same grounds under National Security Act, continuing his incarceration. The PD Act 1950 passed by Parliament was repealed in 1970 and AP PD Act 1970 was struck down as unconstitutional.
The Kiran Kumar Reddy Government in AP considers the agitation for implementation of declaration by
Union Minister for Home Chidambaram about initiating process of formation of Telangana state, as a law and order problem and agitators as criminals. Now as per the advice of Justice Srikrishna, it is considering the Telangana agitators as anti-nationals also who can be arrested under Preventive Detention laws for “national security”. The Polit-bureau member of TRS, Dr. Cheruku Sudhakar was arrested on November 3 and sent to Warangal Central Jail, where he can be kept for more than six months without informing the grounds of arrest. He is also denied the opportunity to seek judicial review of his detention. He can only approach the Advisory Board under National Security Act.
Dr. Sudhakar’s letter from prison wardWarangalto ‘Namaste Telangana’ newspaper dated 12th November 2011, he was handed over a letter relieving him from the charges, which he hopefully thought to be the result of pressure built by the civil society and political parties against repression. Within in no time his hopes were evaporated when the same police officers handed over another document showing his arrest under National Security Act 1980. If he can be discharged from an allegation how can he be jailed on the same allegation? Earlier, a rowdy-sheet has been opened by the Nakrekal police against this TRS leader. He has been charged with being a “sympathizer of the Maoists and providing shelter and treatment to activists of the Pratighatana, Janashakti and CPI Maoists, while in government service as a doctor.” During 2007-2011, as many as 18 cases were registered against him. SP of Nalgonda District Navin Gulati said Dr. Sudhakar had joined the AP Civil Liberties Committee, attended its meetings and indulged in ‘anti-government’ activities. Last month, during the ‘rail roko’ agitation, he led a violent agitation on the National Highway 9 during which the protesters stoned a private bus resulting in its damage and injuries to the passengers. He had pelted stones at a CI resulting in head injuries, he said.
The power of arrest exercised by state through police is itself a high arbitrary power generally misused to curb political opponents. The limitations imposed by law to give reasons and follow due procedures will prevent misuse to a great extent, while preventive detention laws give more of this arbitrary power to executive to detain for a longer period. The purpose of this law is to prevent serious crimes. As per the state now, asking for Telangana is a ‘crime’ for which any body could be arrested without any judicial review for long.
In 2007, the Congress Government in AP has used this non-existing PD law against its political rivals inVijayawadato detain them for more than three months. In the same city during last year police used this law to curb anti-video piracy to help film industry. In Karimnagar the PD Act was used to curb bootleggers during 2007.
What is Preventive Detention?
Preventive detention is the extra-judicial confinement of an individual without charge – for up to 1 year under the NSA – purportedly to prevent a potential future crime. It is interesting to note that it was repressiveBritish Indiathat initiated preventive detention to suppress the nationalist freedom movement. Preventive Detention was authorized inIndiain the first half of the Twentieth century by the Defence of India Acts of 1915 and 1939, by the Government of India Act of 1919, the infamous Rowlatt Act 1919, and The Bengal Criminal Law Amendment Act of 1925. Under some of these detention laws a prisoner could be detained for six months without informing him of the grounds of his arrest. Only if the detention period was to be extended would the prisoner be informed of the grounds for his arrest and be referred to a special tribunal. After independence the Government of India either used these laws or made similar laws to suppress the political opponents.
Article 22 of our Constitution guaranteed protection against arrest and detention and also laid down the scheme under which a preventive detention law could be enacted. Using this power the Government went on passing laws that violated fundamental rights including one under Article 22. Just one month after the Indian Constitution came into force, on 26 February 1950, the government ofIndiaenacted a central legislation: the Preventive Detention Act (PDA), 1950. It was originally enacted as a temporary legislation and was to expire in 1951 but its life was extended through various amendments until 1969. The Defence of India Act (DIA) was passed in 1962, the maintenance of Internal Security Act (MISA) in 1971 and Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPSA), 1974 and National Security Act (NSA), ordinance in 1980 and enactment in 1982. The Terrorist And Disruptive Activities (Prevention) Act (TADA) was passed in 1985. It was meant to expire after two years. However, it was regularly extended every two years until April 1995. Whenever these preventive detention laws have been challenged before the Supreme Court, the court has unfortunately, upheld their validity despite being against national and international human rights standards. Whether challenging the Preventive Detention Act in 1964 or the MISA in 1974 and 1975, or the National Security Act in 1982, or the Armed Forces Special Powers Act in 1983 or TADA in 1994, the Supreme Court has consistently maintained its stand of validating these laws. Prevention of Terrorism Act was passed in 2002 and repealed in 2004. However, in 2004 itself, the Unlawful Activities Prevention Act, 1967 was amended to give powers available under POTA. The safeguards provided under Article 22 of Constitution, as a fundamental right against arbitrary detention, if read properly, suggest that there can be Preventive Detention law only when the context demands and not as a permanent legislation. That is why the Government has to make number of legislations in the pretext of growing terrorism etc. But now the center and states made the PD law more or less a permanent feature. There are more than one law in states which prescribe detention without even framing of a charge. If evidence to show their anti nationalism is available why not they be tried and punished under ordinary criminal justice system. Why should the executive officers seek more powers to arrest without informing grounds and imprison upto an year without trial?
In the normal course of the criminal law, a person accused of a crime is guaranteed the rights to a legal counsel to be informed of charges as soon as possible, to appear before a magistrate within 24 hours, to cross-examine any witnesses and question any evidence presented, and to be presumed innocent until proven guilty beyond a reasonable doubt in a court of law.
While most proponents internationally do not conceive of the use of preventive detention other than as an extraordinary measure in exceptional circumstances,Indiaregularly uses preventive detention to respond to ordinary criminal matters. Such use cannot be justified in a democratic, constitutional order such as exists inIndia.
The National Security Act
The National Security Act (NSA) 1982, however, does not apply any of these rights to preventive detention cases. It permits the extra-judicial detention of individuals if the Government is subjectively “satisfied” that an individual is a threat to foreign relations, national security,India’s defence, state security, public order, or the maintenance of essential supplies and services.
Constitutional law says that a person can be deprived of his life and liberty only by a procedure which is just, fair and reasonable. But the definition of the ‘conduct’ which attracts the application of the NSA is vague and elastic which can be misused by executive. Giving such extraordinary and overwhelming powers of discretion to detaining authority is inconsistent with fundamental rights. The direct and inevitable consequence of a citizen’s detention under the NSA is to deprive him of his rights of speech and expression and movement. Even legitimate democratic activity can be censured under section 3 of the NSA. This Act does not make it obligatory on the detaining authority to consider using lesser measures in case the activities of a detainee so require. To that extent the Act is void, as it constitutes a procedure which is not just, fair and reasonable. The only forum where a detainee can challenge the grounds of his detention is the Advisory Board. But even here a detainee is denied the right of cross-examination, and the services of a counsel to plead on his behalf. Denial of the services of a counsel would mean that he is not given an adequate opportunity to either explain his conduct or challenge the validity of the detention. All this is unconstitutional.
PD Laws in AP
The AP Preventive Detention Act 1970 legislated that every ground of detention should be viewed as detention order. This law was struck down by the AP High Court as violative of Article 22 (5) itself. But this provision found its place in the National Security Act and its validity has not been questioned. ThoughIndiais a signatory neither theUnionnor the states like AP do not comply with various International Covenants which recommend against use of preventive detention.
The Preventive Detention Act was extended year after year for eleven years and now we have it permanently. TADA was extended every two years for ten years. This also may become part of permanent penal code. The Armed Forces (Special Powers) Act commenced its career as a temporary measure but gained a permanent status in 1958. Initially the state did not make permanent laws for preventive detention.
There is another draconian law called ‘the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986’. This Act enables the Government to order for preventive detention for one year and also to delegate that power to the District Collectors or SPs, who, in their assessment and satisfaction, was carrying on activities, which are prejudicial to the maintenance of public order. Thus the Government or Collector or SP can order for detention of any person for a period of 12 months. Even if this is considered to be reasonable to use against bootleggers dacoits and Goondas etc, foisting it against agitators for Telangana indicates ruthless repression.
Some Media’s Pro-active Anti-Telanganism
Like the political parties, bureaucrats and NGOs, the media is also divided on sub-regional lines. As secretly Srikrishna suggested the Government is using tools of anti – Telangana and Pro-Andhra media and repressive laws like Preventive Detention laws. The Hans India wrote that the television channels are being requested to provide the video footage of the violent incidents related to this agitation.
Like the political parties, bureaucrats and NGOs, the media is also divided on sub-regional lines. As secretly Srikrishna suggested the Government is using tools of anti – Telangana and Pro-Andhra media and repressive laws like Preventive Detention laws. The Hans India wrote that the police was seeking private television channels to provide the video footage of the violent incidents related to Telangana agitation to identify instigators to be booked under ‘PD Act’. It was also reported that since the photo section of the police department became a ‘rehabilitation for some officials, the video section was not functioning properly, and cameras given to police stations were either not being used or disappeared. Thus officers and media organizations hailing from Andhra region can work in tandem against Telangana and cooperate with the police to suppress the agitation, which exactly was the secret suggestion of Justice Srikrishna Committee. It is unfortunate that a section of electronic media subscribe the view of police that agitation for Telangana is a criminal activity. It is an irony that such a section of media is not interested in creating a crime free society but has a vested interest in killing an agitation seeking implementation of declaration of Union Home Minister on the floor of Parliament.
(Professor & Coordinator, Center for Media Law and Public Policy, NALSAR University of Law Hyderabad)
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