Alarming act

The amendments the Tamil Nadu government has made to its law of preventive detention threaten fundamental rights and the principle of rehabilitative justice.

Central Jail, Chennai. Preventive laws have always been criticised for the scope for human rights violations that they open up by allowing detentions on the strength of mere suspicion or apprehension.

ON August 11, the Tamil Nadu government moved two Bills in the State Legislative Assembly seeking to amend The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), called “The Goondas Act” in short, to include in it two more categories of offences—cybercrimes and sexual offences.

Despite attempts, albeit feeble, by a few legislators to stall the Bills, the government, as expected, had them passed with an overwhelming majority. But an intense debate outside the Assembly followed, especially among civil society and rights groups, which questioned the need to enlarge the list of offence categories in the preventive detention law.

The original Act, too, had been widely criticised, even in courts of law, for the scope for human rights violations offered by its provisions. The present amendments with respect to pre-charge detention, rights activists claim, is a sinister design to trample “brazenly and impudently” upon fundamental rights. They contend that there were enough laws in the Indian Penal Code (IPC) and myriad other pieces of legislation to deal with crimes covered by the amended Act. They insist that better policing and scientific investigation of cases are required, not frequent amendments to preventive laws. The term “first-time offenders” in the proposed amendment has been criticised. Critics point out that the term was inserted in place of “habitual offenders”, against whom the Goondas Act is primarily used.

A “goonda”, under Section 2(f) of the Act, means a person who, either by himself or as a member or a leader of a gang, habitually commits or attempts to commit or abet the commission of offences punishable under Chapter XVI or Chapter XXII of the IPC. Such an offender could be detained for 12 months without an opportunity to represent his or her case in any court of law. The amendment states: “There are instances where a single act has the potential to disrupt public order and therefore it will not be meaningful to wait for habitual commission of offences by a person before resorting to preventive detention.” This changes the established perception of a preventive law being used for “habitual offenders” only.

The amended law can be used to detain even a first-time offender for an offence that, according to the state, “may have a propensity to disturb public order”. The government took the cue from a Madras High Court order in 2011, which ruled that “even a single offence permits detention of a person, as a Goonda, under the Act”.

Introducing the amendment Bills in the Assembly, Minister for Electricity, Prohibition and Excise Natham R. Viswanathan said businesses and even the government administration could be affected or even brought to a halt by cybercriminals such as hackers, while sexual offences against women were prejudicial to public order.

The amendment Bill on sexual crime further states that it includes “a person who commits or attempts to commit or abets the commission of any offence punishable under Sections 354, 376, 376 (A), (B), (C), (D) and 377 of the Indian Penal Code or the Tamil Nadu Prohibition of Harassment of Women Act 1998 or the Protection of Children from Sexual Offences Act 2012”. Under the amended Act, a person engaged in or preparing to engage in any activity that constitutes a sexual offence can be detained.

Women’s groups scoff at this provision. “How can you identify a person who is making preparations to commit a sexual offence?” asked the Salem-based lawyer-cum-activist P. Damayanthi. The amended laws on women’s safety were strong, she said, and better investigation was what was needed to have more cases leading to conviction.

Miscarriage of justice

“The Goondas Act violates the lofty principles that are enshrined in Articles 19 and 21 of our Constitution,” said A. Marx, Chennai-based rights activist. These amendments, he added, would empower the state to detain any person, even a first-time offender, on a “mere suspicion” up to a year “with a view to preventing anyone from acting in any manner or making preparations for engaging in any activity prejudicial to the maintenance of public order”.

Even those who in the view of the State police are “preparing to post offensive materials that endanger public order on any social media” and those who commit offences listed in Chapter XI of the Information Technology Act can be detained under the Act.

Most States prefer not to use the National Security Act (NSA), the Central legislation on preventive detention, as frequently as they resort to the Goondas Act, mainly on political considerations. The fear that New Delhi will interfere once the NSA is evoked has prompted many to script their own preventive laws under the provisions of Article 22 of the Constitution which allow Parliament and the State Assemblies to enact such laws but with “certain safeguards mentioned in Clauses 4 to 7”.

The original Goondas Act came into effect on January 5, 1982, when M.G. Ramachandran was the Chief Minister. It was amended in 1988 to include the term “forest offenders” and again in 2004, when Jayalalithaa was the Chief Minister, to include the term “video pirates”. “Sand offenders” came in 2006 after the Dravida Munnetra Kazhagham (DMK) came to power. With the two latest insertions, the Act will have nine categories of offenders under its purview.

Karnataka and Tamil Nadu vie with each other in making additions and insertions to their preventive legislation to check crime. A week before Tamil Nadu amended its Act, Karnataka moved to amend its own Act to add a few more categories of crimes, despite stiff opposition from civil rights groups. The Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1985, will soon include acid attackers, sexual predators and digital offenders in its scope, as in Tamil Nadu.

Justice K. Chandru, a former judge of the Madras High Court, said the latest amendments to the Goondas Act contravened the tenets of the fundamental rights guaranteed in the Constitution. He said preventive detention “tramples upon the personal liberty of a citizen without giving him a chance to opt for judicial scrutiny”. He said that preventive laws functioned against the principles of the rehabilitative criminal justice system and well outside the established provisions of the Code of Criminal Procedure (CrPC), 1973, which is based on the principle of justice and fairness.

“Vague terms like sex offenders and cybercriminals provide room for sly manoeuvrability and exploitation. Youth who believe that they are free to express their views on social media need to be extra cautious. Their freedom of expression is at stake. Any content that is posted and found to be ‘objectionable’ by the state may attract detention under the Act,” he pointed out.

The Act, he said, should be used only under exceptional circumstances in cases of grave and imminent threat to public safety and order. Even Dr B.R. Ambedkar, he said, defended preventive laws, but that was because during his time the country witnessed mayhem and violence that accompanied Partition.

Advance warning

At the 16th meeting of the National Integration Council (NIC) in New Delhi on September 23, 2013, Tamil Nadu Chief Minister Jayalalithaa’s speech, read out by the then Municipal and Law Minister K.P. Munusamy, made clear her government’s intention on preventive legislation. This was a warning well in advance, but one which activists missed completely.

She said the “risks of using social media, including hacking, cyberbullying and capture by antisocial elements, have to be mitigated through appropriate safeguards and effective monitoring”.

To protect women from sexual violence, she said she would adopt a “Thirteen-Point Plan” that would include amendments to the Goondas Act. She added that “the State has been very judicious in the use of these laws since they deal with the personal liberty of citizens”. The speech set the tone for the introduction of the recent amendments.

Are preventive laws deterrent?

Justice Chandru, however, was not convinced by claims of the effectiveness of preventive laws. “In 2011, 1,364 persons were detained under the Goondas Act, and in 2012 that number was 1,896. It jumped to 3,125 in 2013. Has the crime ratio come down?”

The premise that the amendments will prevent persons who are “likely to commit” crimes sounds hollow. “The State should not arrest anyone under the presumption that he or she might commit an offence. It impinges on civil liberties and undermines the constitutionally mandated fundamental rights and freedom of expression. It should not grab arbitrary powers for abuse,” said Marx. He said that marginalised people, mainly Dalits, were usually the victims of such preventive laws and claimed that the recent amendments would further dehumanise the legislation. State of Exception

Justice Chandru said that 95 per cent of detentions suffered from procedural lapses and involved abuse of power: “Police officers preparing the detention orders followed stereotyped procedures with a mechanical approach in all cases—from bootleggers to slum grabbers.” Each detention costs the state between Rs.2 lakh and Rs.5 lakh, and 99 per cent of the detainees hailed from poor and weaker sections, he added.

But the judiciary, the former High Court judge said, had never debated the issue whether preventive laws were needed for constructive administration. The Supreme Court, in A.K. Gopalanvs State of Madras in 1950, had ruled that “detention law was part of law established under the Constitution”.

“But this view was changed with the court observing that a law relating to preventive detention must satisfy not only the requirements of Article 22 but the requirements of Article 21 of the Constitution,” Justice Chandru said.

Even the Madras High Court recently asked the Tamil Nadu government to explore the possibilities of bringing “illegal moneylenders” under the purview of the Goondas Act and also insisted on the strong implementation of the Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2003.

Activists claim that District Collectors, in their role as District Magistrates, and Commissioners of Police have been vested with the powers to detain a person under the Goondas Act. In many cases, these officials do not pay close attention to the details of the case while signing the papers of detention. Once detained, the person’s family members have 12 days to apply for his or her release, first to the state for a review, and then to the Advisory Board formed under Section 10 of the Act.

A few get released by the Board and a few others have to approach courts. The Supreme Court ruled in Puranlal Lakhan Laivs Union of India , 1958, that the Advisory Board’s function “is not to determine the period of detention but only to determine whether the detention by itself is justified”. “But the state has never conceded that it detained a person wrongly,” said Marx.

Recently, the Tamil Nadu government detained 108 Pattali Makkal Katchi (PMK) functionaries under the Goondas Act and another batch of 26 under the NSA, including its Vanniyar Sangam leader “Kaduvetti” J. Guru, following agitations by the party’s cadres. While 10 to 12 cases of detentions were quashed at the Board level, the rest were invalidated by the court. “But not before the functionaries had spent three to six months of preventive detention in prisons,” said the PMK lawyer Balu Kaliyaperumal. He said Articles 21, 226 and 32 of Constitution ensured that any illegal detention, even for a day, was against the law. “But the state, by exploiting the procedural and administrative delays in the normal functioning of courts, detains a person for a minimum period of six months at least. We need safety measures within the Act to prevent its abuse,” he insisted.

Snuffing out activism

The government also used its police force to intimidate those who took part in the series of agitations against the Kudankulam Nuclear Power Plant. Reports say nearly 2.27 lakh people living in Idinthakarai, a fishing village, and its neighbourhood have been named in hundreds of cases under various sections of the law.

A total of 8,450 of them have been detained under the Goondas Act and the NSA since 2011. Activists claimed that many of these cases were later thrown out by the court.

The procedure requires that within seven weeks of detention, the detainee should be brought before the Board, which has three retired judges as its members. When these avenues fail, the higher courts can be approached. The majority of the cases have been habeas corpus petitions on which the higher judiciary ruled in favour of the victims, coming down heavily on the States mainly for non-application of mind and procedural lapses.

In N. Sengodanvs Secretary to Government of Tamil Nadu,Home (Prohibition and Excise) Department , 2013, the Supreme Court directed the Tamil Nadu government to pay Rs.2 lakh to Sengodan for having detained him on the grounds that he was predisposed to committing crimes. Sengodan, a retired police inspector in Salem district, was arrested on the charge of attempting to form an association for police personnel.

But he denied having resorted to any act that led to any resentment in the mind of any personnel in the police service or having propagated anything seditious. Justice Sudhansu Jyoti Mukhopadhaya, in his ruling on July 1, 2013, pointed out that the state had “grossly abused legal power to punish the appellant to destroy his reputation in a manner non-oriented by law by detaining him under the Tamil Nadu Act 14 of 1982 [Goondas Act] in lodging a criminal case based on wrong statements, which were fully unwarranted”.

“One of the main principles of legal jurisprudence is that any person accused of any offence should be given an equal chance to be heard and to defend himself in the courts of law,” said Justice Chandru. This preventive law denies the detained person this chance.

The DMK, the Communist Party of India (Marxist) and the PMK have voiced their apprehension about the amended law.

By arming itself with such legislation, the state seems to have assumed the role of Draco, the law-maker of ancient Greece. And, sadly, civil society today looks more vulnerable than ever before, and feels betrayed.