Detention without trial

Print edition : June 10, 2016

August 15, 1998: After a car bomb ripped through Omagh, Northern Ireland. The methods Irish terrorists used were far more deadly and sophisticated than those used by separatists and terrorists in India. Yet, preventive detention ended in that country in 1975. Photo: /Mike Mahoney/REUTERS

The book is an outstandingly able study of preventive detention the like of which has not appeared in India.

“NO interference with liberty must be penal in character. Nothing in the nature of conviction can be admitted without trial in strict form. If in the supreme interests of the community the liberty of individuals is taken away, an asylum must be provided of a different order from a jail” (“Sedition Committee Report 1918”, p. 206; emphasis added throughout). This is the firm opinion of the hated report Rowlatt Report. Leaders of the freedom movement flouted it as soon as they became rulers. Two conditions must be noted. First, deprivation of liberty must be ordered only in the “supreme interests” of the community. Secondly, the suspect must be put in an asylum which is different “from a jail”. People have been detained on grounds far less serious and put in prison, for example, for breach of “public order”.

Section 53 of the Indian Penal Code lists “the punishment to which offenders are liable under the provisions of this Code”. One of them is “imprisonment”. But that punishment is awarded only after a regular trial under the Criminal Procedure Code (CrPC). The detainee is sent to prison without trial. Inquiry by an advisory board is often a farce. Courts have not always helped. An advisory board comprises three persons “who are, or have been, or are qualified to be appointed as Judges of a High Court”. A lawyer of 10 years’ standing, a party hack, qualifies (Section 9 of the National Security Act, 1980; a typical provision).

Section 5 of the NSA, like Section 4 of the Preventive Detention Act, 1950, empowers the government to prescribe places of detention. These “Conditions of Detention Orders” typically nominate jails as places of detention. The 1950 Act, piloted by Home Minister Vallabhbhai Patel, made even breach of “public order” a ground for detention. Article 22 of the Constitution exempts preventive detention from the reach of the fundamental rights.

Why is preventive detention at all necessary? Section 41 of the CrPC empowers a police officer to arrest any person against whom “a reasonable suspicion exists” of complicity in a crime. Under Section 109, security bonds can be ordered to be executed by persons suspected to be about to commit a cognisable offence. Methods used by Irish terrorists were far more deadly and sophisticated than those used by separatists and terrorists in Kashmir, north-eastern India or in Punjab in the past. Time and again, we are told that (a) India will become ungovernable if the state is deprived of the power of preventive detention and (b) “terrorism” cannot be combated save by the drastic invasions of personal liberty that Indian statutes make.

Britain’s experience in Northern Ireland exposes the utter falsity of both propositions. It provides a glaring contrast to our experience. Internment (preventive detention) started in Northern Ireland on August 9, 1971. On December 5, 1975, Secretary of State for Northern Ireland Merlyn Rees announced that the last 73 detenus would be set free and preventive detention would be ended. What is more, two bodies had been set up to consider alternatives. In 1972, a commission headed by Lord Diplock was set up “to consider legal procedures to deal with terrorists activities”. In 1975, a committee headed by a former Lord Chancellor, Lord Gardiner, submitted its report on measures to deal with terrorism in the context of civil liberties and human rights and “to examine the working of the Northern Ireland (Emergency Provisions) Act, 1973”. Two more statutes were enacted subsequently: the Prevention of Terrorism Act (POTA) in 1974 as an emergency measure. It was renewed in 1976 and enacted later in 1984. In 1984, the Police and Criminal Evidence Act was also enacted. In 1978, Lord Shackleton and, in 1983, Earl Jellicoe reviewed the working of POTA. In December 1987 came the report by Viscount Colville of Culross, QC, entitled “Review of the Operation of the Prevention of Terrorism (Temporary Provisions) Act, 1984” (HMSO: Cm 264). The Colville Report refers to terrorist attacks on moderate Sikhs and Hindus in Britain as well. He did not recommend a return to preventive detention.

This book is an outstandingly able study of preventive detention the like of which has not appeared in India. Hallie Ludsin is a human rights lawyer and adjunct professor at Emory University School of Law, Georgia, U.S. Her work considers the theoretical framework, analyses the policy debates, recalls the history of preventive detention in India and its current state and compares it with preventive detention in the U.S. and in England in the light of the guarantee of due process. At the end of an erudite and thorough study, Hallie Ludsin concludes: “Relying on preventive detention instead of prosecution wholly wipes out the rule of law. …the rule of law turns into rule by suspicion.”

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