Preventive detention is the curtailing of a person or a group of persons from carrying out an act that they would do otherwise which would amount to a crime being committed.
Preventive detention and its regulation is given in the constitution under Article 22. It states that an individual who is arrested and detained shall be produced before the nearest judge within a time period of 24 hours of such arrest excluding the time needed for the journey from the spot of arrest to the court and no individual shall be confined in custody more than the 24 hour period without the authority of a magistrate. It also provides that no law for preventive detention authorizes any individual to be detained for more than three months unless an advisory panel claims a reasonable justification for such detainment. The members on the advisory panel will be akin to a high court bench. The report has to be presented before the expiration period of three months. It further specifies that the reason for detention shall be conveyed to the individual as quickly as possible by any official when detaining any individual under preventive detention. The reason for detention should have a reasonable and rational connection to the object that the detained person is prevented from acquiring. The correspondence should include all the important information, and it should not be a simple assertion of facts.
Even with all these guidelines in place, in reality there are laws that override such provisions.
The Unlawful Activities (Prevention) Act, 1967 or UAPA was developed as an anti-terrorist activities law to prevent unlawful activities association and maintain the sovereignty and integrity of India. Throughout the years it has been amended for effective use and application. The UAPA has been amended on multiple occasions to adapt to the changing techniques of terrorism, from shifting the burden of proof to making extra-territorial arrests. The most recent amendment that came was the Unlawful Activities (Prevention) Amendment Act, 2019 which dealt with the expansion of the definition of “terrorist”. The term terrorist now includes individuals under Section 35 and 36 of Chapter VI of the Act. It allows the Director General of National Investigative Agency to seize property linked to terrorism under Section 25 and provides officers with the rank of inspectors and above the power to investigate cases under Section 43. A Review Committee is set up to de-notify the individual notified as a terrorist by the Central Government thus removing all the chances of any institutional mechanism for judicial review.
Section 35 blatantly violates the basic justice and criminal structure of our judicial system which holds the principle of ‘innocent until proven guilty’. Section 35 helps in the assumption of a person as a terrorist and makes him guilty even before it is proven. The government in this case also has unencumbered powers to declare anyone as a terrorist and detain them.
There have been many cases of people detained under the UAPA. Some notable examples of such arrests are Gaur Chakraborty who was arrested in 2009 under UAPA and acquitted by the Sessions court after nearly 7 years. Just because of his affiliations to the communist party and his free propagation of the communist ideas, he was jailed. Arun Ferreira is an Indian activist who was arrested in 2007 for alleged links to the Indian Naxalite movement and spent five years in prison before he was acquitted in 2012. These are just small examples as there are still no developments in the arrests of countless number of artists, social activists and journalists during the Anti-CAA and the Bhima Koregaon incident.
The UAPA has been challenged before the Hon’ble Supreme Court of India. Sajal Awasthi being the lead petitioner, the act has been challenged on the grounds of violating Articles 14, 19 and 21 of the Constitution. Some eminent lawyers also filed a request for a Special Investigation Team (SIT) for the Bhima Koregaon arrests but a 3 judge bench (2:1) denied the plea for the same.
The present challenge against the 2019 Amendment is only in its preliminary stage. It is important that the government must not overstep its authority and the burden of proof be on the state to prove someone’s guilt rather than the individual who is deemed guilty even before a proper trial. In order to comply with the ICCPR and the UDHR, Indian government will have to propose changes that are more equally balanced while aiming to maintain the integrity and security of the nation.
Aishwarya Says:
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