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Why it is critical to review pretrial detention laws: analysis


Between 1975 and 1977, the Emergency strengthened laws such as the Internal Security Maintenance Act (MISA), which granted the state apparatus the right to arrest and detain a citizen for up to one year without due process of law. These arrests were not for committing a crime, but because these people were seen as risks to society. The end of the emergency led to eliminating MISA and limiting the use of this preventive detention (PD). But as India progressed and the focus of concern for personal freedom eased, the old habits of those in power slowly resurfaced to popularize the DP again. Today, we are at a point where, according to government data, almost a lakh of people were arrested and detained under DP laws (such as the National Security Act, 1980) in 2018. In this context, it is imperative to understand what it is The PD regime is, and the problems it presents.

In the ordinary criminal justice system, the law, sensibly, works to limit arrest and custody. The police need a credible basis for arrest, and preventive detention does not extend beyond 24 hours without any investigation purpose, and is also subject to periodic reviews. The law also carries safeguards for those arrested. These include the right to be informed of the reasons for the arrest as soon as possible; be presented to a judge within 24 hours; and, be defended by a lawyer of your choice.

However, when it comes to the DP regime, none of the above is valid. DP laws allow arrests if an executive officer is convinced that a person is dangerous to society, where different laws address different hazards. It is fine that no reasons are given for up to five days and, in some cases, even 15 days after arrest. The detainees are not presented before a judge at any time, nor is there a periodic review of the need for detention. And, perhaps worst of all, detainees have no right to a lawyer.

Generally, complaints examined by the police should go to trial before a judge, where the evidence leads to proof of guilt. But under the DP regime, executive determinations of whether a person represents a threat are not proven in a trial with main evidence, nor are they examined by legally trained persons. Here, matters of freedom are restricted to the insertion of documents in government archives. A court of law only enters if there is a lawsuit to detain someone more than three months. But, even then, there is no trial, no periodic review, no legal assistance for the arrest.

The need for preventive measures to address situations in which there is a serious risk of harm is rarely questioned. For DP supporters, it makes little sense to let the police act only after a crime occurs. However, this supposed need for preventive powers in no way justifies the PD regime itself. Two concerns must be taken into account.

First, detaining someone without trial may seem justifiable when there are threats to national security. The same cannot be said when used to treat problems such as video piracy, as is done in Karnataka, for example. This problem of scope goes beyond determining risk categories in which PE is allowed and extends to the definition of these risks. By using notions, such as public order, DP laws become prone to abuse. For example, the National Security Law is used to arrest critical journalists with public figures. Without clear limits of scope it also means that, instead of being used to “prevent” damage, DP laws are used in conjunction with regular criminal law to keep people in custody for longer, with fewer questions.

Second, the sanction of the PD regime for arrests and detentions for up to three months, without periodic review and without judicial supervision, is against the basic principles of our republic that are supposed to “jealously” keep freedom. What makes this problem worse is that this process of denial of rights finds support in Article 22 (3) of the Constitution, which expressly chose not to extend the minimum guarantees of the criminal justice system to DP laws. Whatever the reasons that led the Constituent Assembly to make this decision for an incipient nation that falters after the Partition, these justifications cannot remain unanswered 70 years later in the world’s largest democracy. Especially, since the appreciation of Indian law and the right to life and personal freedom and the interpretation of the Constitution itself, they have undergone tremendous transformation during this time.

Spontaneous protests in recent months revealed, among other things, that there is dissatisfaction in the public between the current state of the law and what we want it to be. This is an opportune moment to train our attention in the laws of DP. Is it justifiable for India to allow the arrest and detention of a lakh of people in a year without presenting them to a judge, denying them a public trial and not allowing them legal assistance?

Abhinav Sekhri is a lawyer based in Delhi.

The opinions expressed are personal.

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