Lesson 12 - Preventive Detention and National Security
Laws
Preventive Detention: Historical Perspective and Constitutional
Provisions
There is a long history of laws pertaining to preventive
detentions in South Asia. Preventive detention remained a major tool in the
hands of the colonial regime. During the First and the Second World War,
England created emergency acts such as the Realm Act and Emergency Powers
(Defence) Act for the purpose of Preventive Detention (Jinks 2001).
The history of preventive detention in India can be traced
back to the British era when the government was empowered under the Bengal Regulation
- III of 1818 (the Bengal State Prisoners Regulation) to detain anyone merely
on the basis of suspicion (Rahman 2004).
The constitution of post-colonial India got affirmation in
1949. The new constitution clearly provided powers to the state and central
legislatures to enact laws related to preventive detention. The Parliament and
the state assemblies can make such laws that contains provisions pertaining to
preventive detention in relation to issue of defence, foreign affairs or the
security of India (Jinks 2001, Singh 2012).
Under section 5 of Article 22, when any person is detained
in pursuance of an order made under any law providing for preventive detention,
the authority making the order shall, as soon as may be, communicate to such
person the grounds on which the order has been made and shall afford him the
earliest opportunity of making a representation against the order.
However, clause 6, nothing in clause 5 shall require the
authority making any such order to disclose facts which such authority
considers to be against the public interest to disclose (Constitution of India
1950). Thus, in a head on collision between protection from preventive
detention and the issue of public order and security, the latter takes
precedence.
Laws related to Preventive Detention and National
Security
Contextualizing the Situation:
Before assessing the laws, acts and provisions pertaining to
preventive detention and national security, it is pertinent to have a look at
the major terrorist attacks in India:
12March 1993 - 13serial bomb blasts killing 257 people.
13 December 2001 - Attack on Indian Parliament killing 14
people.
14March 2003 - Train blast in Mulund killing 10 people.
29October 2005 - Delhi Bomb blasts killing 62 people.
5July2005 - Ram Janmabhoomi attacks in Ayodhya.
7March 2007 - Varanasi bomb blasts killing 28 people.
11July2006 - Serial bomb blasts in Mumbai trains killing 209
people.
26 November to 29November 2008 - Coordinated attacks in
Mumbai killing around 170 people.
1) Preventive Detention Act, 1950:
The Constitution of India passed the first Preventive
Detention Act on 26 February 1950 (Jinks2001). The purpose of this act was to
stop anti-national elements from undertaking acts that are hostile to the
security and defense of India. After 2 years in practice, the act was supposed
to terminate on 1 April 1951. However, the duration of the act was increased
from time to time and ultimately is was abolished on 31 December 1971 (Rahman
2004).
2) Maintenance of Internal Security Act, MISA, 1971:
MISA was enacted in 1971 in order to maintain internal
security in India. It was considered to be a controversial act as it was
constantly being used to harass and arrest people who posed challenge to the
Congress leadership such as opposition leaders, journalists and social workers.
They were regularly arrested and put behind the bars in the name of maintaining
internal security during the National Emergency imposed by government led by
Mrs. Indira Gandhi. The act apparently provided the government with unlimited
powers.
The police or the government agencies could arrest anyone
preventively for longer durations and they were also given the power to search
without any warrant. The act also made tapping of telephonic conversations by
the government as legitimate. During the National Emergency of 1975- 1977,
several modifications were made in the act from time to time. Ultimately the
act was scrapped when the Janata Party came to power in 1977 (Mishra 2018).
3) Foreign Exchange and Prevention of Smuggling
Activities Act, COFEPOSA, 1974:
This act provided for preventive detention in certain cases
in order to conserve and augment foreign exchange and to prevent smuggling
activities (Ministry of Finance 1974). This act was like a supporting act for
MISA, 1971. Even though MISA was repealed in 1977, COFESA continued. Earlier
the duration of detention for traffickers was one year. This was increased to
two years through another ordinance on 13 July 1984 (Ministry of Finance 1974,
1984).
4) Terrorist and Disruptive Activities (Prevention) Act,
TADA, 1985:
This act was brought in May 1985 in context of the
separatist movement of Khalistan. Initially, it was brought only for two years.
However, in 1987, it was amended and re-introduced. This act is considered as
the most effective and the most draconian of laws made under preventive
detention system (Chopra 2015, PUDR 1993, Singh 2007). The objective of this
law clearly stated that it has been agreed in the basis of experience that in
order to stop and effective tackle terrorist and disruptive activities, it not
only necessary to maintain existing laws but also to make them more powerful.
To fulfil this objective, when this ordinance took the shape
of an act in 1987, there were two changes made to it. First, for the possession
of specific arms and ammunition listed under Arms Rules of 1962, or bombs,
dynamite or other explosive substances, the punishment will be imprisonment at
least five years which may extend to imprisonment for life with fine (PUDR 1993).
The second change was related to the provision that admission of guilt before a
Superintendent of police or an officer of higher rank would be admissible as
evidence (PUDR 1993).
5) Prevention of Terrorism Act, POTA, 2002:
The Law Commission of India presented a draft of an act
similar to TADA in its 173rd report in April 2001. POTA can virtually be seen
as a form of TADA. As an ordinance, POTO (Prevention of Terrorism Ordinance,
2001) was prepared in the backdrop of terrorist attacks of 11 September 2001 in
USA. The ordinance was promulgated by the National Democratic Alliance
government led by BJP on 24 October 2001.
After the Parliament attacks of 13 December 2001, the
Parliament was suspended and therefore, in absence of passing it as an act,
another ordinance was passed on 30 December 2001. Ultimately, the ordinance
became ant act, POTA, on 26 March 2002 after it was passed in an extra-ordinary
joint sitting of the Parliament. With this ended the period of not having a
national anti-terror law in India (Singh 2008).
The legal system that came into existence with POTA adopted
the provisions of TADA. System of arrest, investigation and trial, acceptance
of confession as evidence, etc. were clearly reflective of the draconian nature
of TADA.
While TADA did not contain a provision for tapping
telephonic conversations, POTA made these evidences admissible in the courts.
In Mohammed Afzal versus the State case related to Parliament attacks, the most
important evidences against the four convicts were collected through
interception of telephonic communication (Hargopal and Jagannatham2009).
Under POTA, 23 terrorist organization were banned. While the
provisions for declaring suspect groups as terrorist groups were there in UAPA
of 1967 as well, POTA made major changes to these. Under section 18 (3) of
POTA, if the central government is assured that any organization is linked with
terrorist activities, it can declare that organization as a terrorist group.
However, this could be done only after three months of arrest.
Another important aspect of POTA was that it was created within the ideological
discourse of global Islamic terrorism and National-security State. This act was
repealed through an ordinance on 21 September 2004(Singh 2012).
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6) National Security Act, NSA, 1980
The National Security Act (NSA) is an act to provide the
government with greater powers for the security of the nation. The National
Security Ordinance was promulgated in September 1980. It took shape of National
Security Act and was passed on 27 December 1980. This act provides the Central
and the State government with powers to directly arrest and detain suspicious
people who seek to pose hurdles in security of the country, put the relation of
India with other countries in jeopardy, disturb the public order or create
hurled in maintenance of supply and services in the society (Jinks 2001).
This act can be used by the District Magistrate and the
Commissioner of Police in their limited jurisdiction. The maximum period of
detention is 12 months. However, the law contains the provision for providing
information of and reasons about detention to the State government. No such
decision remains in force for more than 12 days without the approval of the
State government (Jinks 2001).
7) Unlawful Activities (Prevention) Act, UAPA, 1967,
2004, 2008, 2012, 2019
Unlawful Activities (Prevention) Act (UAPA) was first passed
in 1967 to declare as unlawful all such organizations who were seen as
supporters of separatism. In the 1990s, in the context of the demolition of the
Babri Mosque and increase in separatist movements in Kashmir, several
organizations were declared unlawful under this act (Singh 2012).
Jamaat-e-Islami, Islamic Sevak Sangh, Vishwa Hindu Parishad, Rashtriya
Swayamsevak Sangh, Bajrang Dal, and Jammu Kashmir Liberation Front were some
organizations that were declared unlawful in 1990s.
This act was amended in 2004 by the United Progressive
Alliance (UPA) government. By this time, the public opposition towards POTA was
increased and the UPA government had to repeal it as promised during their
election campaign. The amended UAPA included the draconian provisions of POTA
as it were. It included the definition of ‘acts of terrorism’ and ‘terrorist
organization’ along with a list of organizations declared as terrorist
organizations (Singh 2012).
The act was again amended after the 2008 Mumbai attacks.
With this amendment, the provisions of POTA and TADA such as maximum period for
police custody, custody without warrant and prohibition on bail were added to
the UAPA (TNN 2008). These changes made is possible for the government to keep
suspicious individuals under custody for longer durations without the
possibility of getting bail.
The latest amendment to the UAPA in 2019provides the NIA
with the power to designate even individuals, besides organizations, as
‘terrorists’ on the basis of suspicion of having links with acts of terrorism
(PTI2019b). Each amendment has led to an increase in the scope of UAPA.
8) National Investigating Agency Act, 2008 and National
Investigation Agency, NIA
With the background of Mumbai attacks of November 2008, the
National Investigation Agency (NIA) was established in December 2008 under the
National Investigating Agency Act of 2008 (Ministry of Home Affairs 2008). It
was passed alongside the Unlawful Activities (Prevention) Act of 2008(Ministry
of Home Affairs 2008). NIA is empowered to investigate the cases related to
terrorism all over the country on the directions of the Central government.
This act specifically investigates such cases that pose a
challenge to the sovereignty, unity and integrity of India. NIA has special
powers to investigate cases related to terrorism in a fast-tracked manner.
Also, the onus of proving innocence falls on the convicted individual (Ministry
of Home Affairs 2008). Under the NIA, an officer above the rank of
sub-inspector is provided with special powers of investigation (Ministry of
Home Affairs 2008).
The National Investigation Agency (Amendment) Act, 2019 was
passed in the Indian Parliament on 17 June2019 (PTI2019c). This act provided
for even greater powers of investigation to the NIA.
This amendment further strengthens the NIA for investigation
against human trafficking, counterfeit currency, manufacture or sale of
prohibited arms, cyber-terrorism and offenses under the Explosive Substances
Act of 1908 (PTI2019c).
9) Armed Forces (Assam and Manipur) Special Powers Act,
AFSPA, 1958
The Armed Forces Special Powers Act (AFSPA) was adopted in
order to prevent the armed rebellions that were rising in the states of the
North-East India to claim autonomy. Under the provisions of this act, the armed
forces in the disturbed areas of the State of Assam and the Union Territory
Manipur were granted certain special powers (Hargopal and Jagannatham2009).
The act empowers any commissioned officer, warrant officer,
non-commissioned officer or any other person of equivalent rank in the army to
use force, or even open fire, on any person who is acting against the law
(Hargopal and Jagannatham2009).
This act also provides for search without warrant on the
basis of suspicion. In these situations, the presence of ‘reasonable suspicion’
becomes a sufficient condition to take such actions by the authorized personnel
(Hargopal and Jagannatham2009, Singh 2007).
In 1972, after some amendments, this act was applied on
entire North-East India including Assam, Manipur, Tripura, Meghalaya, Arunachal
Pradesh, Mizoram and Nagaland. It was applied in Tripura on 16 February 1997 as
a reaction to extremist violence and was removed after 18 years, in May 2015,
when the situation improved.
In 1983, the government brought the AFSPA (Punjab and
Chandigarh) Ordinance in order to fight the increasing violent separatist
movements. This ordinance took the shape of a law on 6 October 1983. This act
was applied to the entire State of Punjab as well as Union Territory of
Chandigarh by 15 October 1983. It was removed in 1997 after being operational
for around 14 years.
Now such acts also came under the purview of AFSPA (1990)
that question the sovereignty of India and that shows disrespect towards the
national flag, national anthem or the Constitution of India (Hargopal and
Jagannatham2009).
Security versus Human Rights: Rise of the Indian Security
State?
It is important to understand the negative side of the
provisions, acts, laws and ordinances pertaining to national security in India.
Specifically, certain provisions of UAPA and AFSPA pose a direct threat to
human rights.
Anti-terrorism laws transgress the limits set by the
constitutional safeguards provided under Article 22 of the Indian Constitution
(Singh 2007). Additionally, these laws weaken the right to fair trial provided
under criminal procedure. Under these laws and acts, the suspect individual has
to spent several years behind the bars or house-arrest even before being to the
court of law (Singh 2008, 2012).
A recent example confirms this argument. 17 Muslim youths
were arrested in 2008 by the Karnataka Police on the basis of the suspicion
that they were connected to banned organization SIMI (Student Islamic Movement
of India). After a delay of 15 years, no evidence was found against these
youths and they were acquitted due to lack of evidence (PTI2015).
In a situation where the judiciary considers admission of
guilt as evidence, the possibility and scope of torture by the police increases
drastically. The police can cross limits of cruelty in order to extract
statement from the convicted individuals and present it as evidence (Singh
2008).
There has been opposition and protest against the cases of
rape in areas of AFSPA. Thangjam Manorama was captured in July 2004 from her
home by 17 Assam Rifles team of Indian paramilitary forces. She was found dead
with multiple gunshot injuries on her private parts hardly two km away from a
police station (Rajagopal 2014).
Post-mortem report found evidence of rape before murder. A
few days after this incidence, about 30 women staged a protest, standing naked
in front of Assam Rifles headquarters. The Justice Verma Committee Report presented
in 2013 contained recommendation in relation to crimes against women in
conflict areas (Rajagopal 2014, Singh 2013).
This report suggested a reassessment of the provisions of
AFSPA. According to the current provisions, it is required to gain the approval
of the central government to begin prosecution against armed personnel (Singh
2013). Verma Committee recommends that such an approval should not be required
in cases of rape (Singh 2013).
Under the provisions of POTA, specially under section 21, a
climate of suspicion and lack of faith emerges. The law goes against the idea
of freedom by suppressing the voices of dissent. Such provisions certainly tend
towards establishing an apolitical society. Elements of democratic deliberation
and publicness are lost in such a society.
Anti-terrorism laws world over has displayed the fact that
they are being used to target specific communities (Singh 2012). In this
critical context it could be argued that the lawsof preventive detention and
anti-terrorism laws are pushing Indian slowly but definitely towards a path to
security state. In ideal situation, the power and scope of the legislature,
executive, and judiciary are well defined and each of these exercises a system
of check and balance against the other.
This increased power of the executive stands in opposition
to the democratic aspirations of the people. This indistinction between the
executive and the state essentially privileges security over human rights. In
the battle between justice and rights on one hand and security issues on the
other, security always wins. The abuse of human rights in the name of ensuring
security attains a level of normalization and leads to the establishment of a
‘permanent state of exception’ (Agamben 1998).It would not be an exaggeration
to argue the same in the context of extra-ordinary laws in India.
In general, a state of exception should imply that an
extra-ordinary situation exists and required immediate solution. Any law which
is promulgated on the pretext of addressing an extra-ordinary situation, it is
expected that the after the solution to the problem, the situation would no
longer remain ‘extra-ordinary’ and normalcy would prevail. The situation would
no longer be exceptional.
An emboldened and empowered executive crushes the judiciary
and the legislative arms of the state and the state begins to be identified
only with its punitive organ (Hallsworth and Lea 2011). Problem aggravates even
further when the state of exception becomes the new normal state and the scope
of the executive becomes limitless. This tendency is visible in the armies and
police world over where a series of laws and acts are established that seek to
provide special protection in favour of the armed personnel (Hallsworth and Lea
2011).
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