On July 27, 2021, Mitesh Thakkar, a celebrated Vadodara-based doctor, was finally granted freedom from incarceration by the Gujarat high court. Thakkar, who has treated nearly 3,000 COVID patients during the pandemic, was detained by the police on the suspicion of the sale of one Remdesivir injection. After Thakkar spent 106 days in prison, the court restrained the government from further detaining him under the Prevention of Anti-Social Activities (PASA) Act, 1985.
Ludicrous though it may seem, Thakkar’s story is a frighteningly common one. Gujarat’s PASA Act, a preventive detention law, is archaic, replete with vague definitions and has a long history of rampant misuse. Despite repeated raps by the court, the state continues to brazenly abuse it.
In the past, it has been bizarrely invoked against an interfaith couple, GST offences, the mere possession of liquor and even to interfere in a private dispute. All of these orders were eventually quashed by the high court. According to the statistics provided by the chief minister’s office (CMO), a staggering 5,402 detentions were made under the law in the last two years alone. This is substantiated by the data of the National Crime Records Bureau (NCRB), as the state detained 2315 and 3308 citizens in 2018 and 2019 respectively under detention laws.
Gujarat currently has the second-highest number of detenues, following Tamil Nadu.
These invocations of the detention law have only become more frequent, more visible and more indefensible during the pandemic. As the high court pointed out in Thakkar’s case, if the police were detaining him for the so-called ‘unauthorised distribution’ of “one or two injections,” the judiciary would have to consider the similar distribution of thousands of injections by political parties.
Just after quashing Thakkar’s detention, the court reiterated its disapproval of this double standard of the authorities, censuring them for invoking the PASA Act against common citizens for not wearing their masks at a time where political leaders were freely conducting rallies mask-less.
Detention as the ‘first resort’
Like the vast majority of the Indian detention laws, the PASA Act purports to prevent persons from behaving in “any manner prejudicial to the maintenance of public order.” ‘Public order’, predictably, is loosely defined; the explanation within the Act only states that public order is affected if, inter alia, the activities of any person or persons “is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or [there is a] grave or widespread danger to life, property or public health.”
In addition to being purposefully imprecise, the Act confers the immensely broad latitude of discretion on the government which, of course, routinely delegates this power to the police. It also empowers the police to conceal the grounds of detention from detenues, deny them legal representation and even attach or sell their property if it is believed that they are attempting to abscond.
Critically examining the detention orders, it seems almost as if the detention precedes the reasoning. The police seem ever-prepared to invoke the law on any ‘offender’, whether the offence is real, perceived or even completely fabricated. After the person is detained, the authorities, right from the detaining officer to the advisory board, build a narrative in which an ordinary citizen is transformed to “cruel” or “dangerous” under the Act.
On August 23 of this year, for example, the Gujarat high court sharply knocked the police for detaining a ‘bootlegger’ under the law on the basis of one FIR related to prohibition laws. Though the court expressly held that “by no stretch of imagination… [could it be held] that such incidents could describe a person as a bootlegger”, it would seem that the authorities often exercise their imagination in this way.
The court as the sole voice of reason
In the CMO’s response mentioned above, it was admitted that out of the 5,402 detentions made in the last two years, 3,447 (or 64%) were quashed by the Gujarat high court. Though the court has repeatedly quashed the detention orders, it appears it has only been reactive to this arbitrariness instead of questioning the nature of the law and the established practice under it. The pattern is quite clear: ordinary accused are routinely detained under this draconian law and their detentions are summarily quashed, though often after a protracted delay.
In a number of cases, the high court has even recognised the exceptionally harrowing experience of the detenue while awarding compensation. In the 2007 landmark case of Visamanbhai D. Dhola versus State Of Gujarat, for example, wherein the petitioner was detained for being a “dangerous person” who indulged in property-grabbing, eve-teasing, and loan-sharking, the court observed that the police could not even prove the petitioner was a criminal, let alone a ‘habitual offender.’ Yet, he was detained for 45 days in the absence of any confirmation from the advisory board.
The court deemed the order in this case “illegal”, “improper”and“malicious” and directed the authorities to pay him compensation of Rs. 1.5 lakh. However, this gives rise to another pertinent question: shouldn’t the government be made accountable for all those detained wrongfully, often for much longer periods?
Misuse, abuse and no capacity to defuse
The invocation of the detention law in Gujarat has crossed all reasonable limits. The government seems blithely unconcerned with the court’s censure and so, this pattern of arbitrary detention has persisted.
In fact, the government recently amended the Act to include, inter alia, cybercrime, loan-sharking and sexual offences. Every single one of these offences is already punishable under the Indian Penal Code. The PASA Act’s enlarged scope simply extends the power of the police to detain almost anyone without following the due process of the law. But the government stated that the object of the amendment was to “re-affirm Gujarat’s identity as a peaceful, safe and secure state” and described it as a benign measure to create a safe state.
As Visamanbhai D. Dhola illustrates, the authorities seem more than happy to detain even a completely innocent person, provided the person is inconveniencing – or merely irritating – the local authorities in some way. Hence, the police feel the need to invoke the law even to settle a private property dispute between two parties.
But when such an innocent person is detained on unsubstantiated charges, or the mere apprehension that their presence in society threatens the ‘public order,’ they are inevitably incarcerated for weeks at a time. No amount of subsequent compensation can adequately address such a serious impingement of liberty. Neither can it be rationalised on the grounds that the citizens’ basic right to liberty is restored by the court at some later date, as the person has already suffered on multiple counts.
The state has become more and more emboldened to invoke the detention law against those they deem troublesome, even if they understand that this detention is unsustainable. They are not affected by the disapproval of the judiciary because by the time a case reaches the court, their objective; to harass and intimidate the accused, has already been achieved. They know their conduct will never be tested on the edifice of ‘due process’ and their actions will continue to be safeguarded by an illegitimate justification of ‘public interest’.
However, if the government cannot get a free pass to exercise arbitrary powers every time it raises the spectre of national security, it should also not get the free pass every time it raises the spectre of a ‘threat to the maintenance of public order’ under preventive detention laws.
This article is written by Natasha Singh and Murali Karnam (- student and teacher respectively at NALSAR University of Law, Hyderabad) and was first published by ‘The Wire’.
