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Preventive Detention: Illustrations on the "no vakil, no appeal, no daleel" model
How do authorities identify who to place in preventive detention?
Preventive Detention
1) What connects these people?
Four activists in Chennai who tried holding a candle-light vigil for Tamils killed in the Sri Lankan civil war (2017).
A journalist in Imphal who posted a video criticizing Manipur’s Chief Minister and Prime Minister Narendra Modi (2019).
An NRI who tweeted that he hadn’t been screened for COVID-19 at the Ahmedabad international airport (2020).
2) Lock this answer.
“I’m what’s common. Preventive Detention – India’s cut-price alternative to criminal justice.”
3. To understand what preventive detention is, let’s figure out what it isn’t
4. But under preventive detention, the police can detain people even if no crime has actually been committed.
5. So how do authorities identify who to place in preventive detention?
6. Under these laws, to detain someone, all that’s needed is an order from a government official saying the person may harm “public order”, or similarly vague grounds. Detention can last for days, weeks or even months.
Slide Show
7. Detention orders can be reviewed by a government-appointed ‘advisory board’, but these boards rarely dissent
For example, in Jammu & Kashmir, the PSA Board okays 99% of detention orders.
8. So when the police can’t or don’t want to use regular criminal law, there’s an easier way to lock people up.
9. Preventive detention has a long history in India. The British passed many laws allowing for it, including the infamous Rowlatt Act in 1919.
10. When India’s Constitution was drawn up, preventive detention was allowed under Article 22, despite much opposition.
H V Kamath, Constituent Assembly Debates on Article 15-A (which later became Article 22):
“Has anybody considered how some other persons, possibly totally opposed to our ideals, to our conceptions of democracy, coming into power, might use this very Constitution against us, and suppress our rights and liberties?”
11. Today, there are four Central preventive detention laws and many state laws (such as the “Goondas” Acts)
12. Some State laws are bizarrely overbroad
13. Arrests under these laws have risen dramatically in recent years
Arrests every year:
2016: 67,000
2017: 99,000
2018: 1,07,000
2019: 1,066,12
NCRB data shows the proportion of arrests under the NSA, Goondas Acts and other laws that provide for preventive detention.
14. In Jammu & Kashmir, authorities have perfected the use of the J&K Public Safety Act to stifle dissent
15. And many states now use the National Security Act to arrest activists and critics
UP: Kafeel Khan
Assam: Akhil Gogoi
Manipur: Kishorechandra Wangkhem
16. Sometimes, when a person is released on bail by a court, the police put them in preventive detention to to keep them locked up
Bhim Army Chief Chandrashekhar Azad was arrested on June 8, 2017. The court ordered his release on bail on November 2 of that year. A detention order was passed the very next day.
17. In states like Uttar Pradesh, the NSA is increasingly used for offences that should be investigated under ordinary criminal law
18. Oddly, the Supreme Court had ruled that the vagueness of the National Security Act does not make it unconstitutional.
In AK Roy v. Union of India (1981), it held,
“There are expressions which inherently comprehend such an infinite variety of situations that definitions, instead of lending them a definite meaning, can only succeed either in robbing them of their intended amplitude or in making it necessary to frame further definitions of the terms defined.”
19. Courts often quash preventive detention orders. But they only look at procedural issues, and not whether the detention itself was justified
In Mian Abdul Qayoom v. State of J&K, the Jammu & Kashmir High Court held,
“A court is not a proper forum to scrutinize the merits of administrative decision to detain a person.”
20. Preventive detention has come a long way
Illustrations by @Penpencildraw.
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