Arbitrary detentions by law enforcement agencies are not uncommon in India. It is even more of a pronounced problem in areas affected by internal security threats, like certain regions in Kerala where there is believed to be a considerable population of Maoist insurgents. The response of the Indian government to threats such as these has been most often been twofold – the deployment of paramilitary forces who are routinely accused of excesses, coupled with the frequent invocation of the Unlawful Activities Prevention Act, 1967 (UAPA) an anti-terrorism legislation that operates parallel to the penal code, many provisions of which have been criticized by civil society groups as being in derogation of several of India’s international human rights obligations.
A single judge bench of the Kerala High Court on 22 May had the occasion to deal with the question of the legality of the arbitrary arrest and search of an individual in the insurgent ridden area of Wayanad in Kerala, and whether wrongful state action of this nature merits compensation to the victim. The facts of the case are important to appreciate. On 20 May 2014, members of the ‘Thunderbolt’ anti-insurgency paramilitary unit, received intelligence reports that a suspected Maoist was travelling on a motorcycle around the Vellamunda forest region.
The commandos even knew the registration details of the Maoist bearing vehicle. It happened to belong to Shyam Balakrishnan, an individual who had been resident in Wayanad for close to four years. Balakrishnan was stopped as he was travelling in the region and taken into custody. He was thereafter interrogated at the police station after being relieved of his personal effects; a search was conducted upon his person as well as his residence in order to determine whether he had any links to the banned insurgent Maoist organisation. The police and the paramilitary forces however, constructed an entirely alternate narrative before the court, and contended that Balakrishnan had not been arrested, but taken into custody to ‘protect the petitioner from a group of people assembled in the area’, who were ‘creating a pandemonium’.
No basis whatsoever
Justice A. Muhamed Mustaque of the Kerala High Court, taking note of the fact that no criminal charges had been brought against Balakrishnan by the police at any time, held that his detention had been wholly without basis, on three separate but related grounds.
The first was to determine that an arrest as understood under Indian criminal procedure ordinarily occurs at the instant there is a ‘deprivation of negative liberty which is a primordial freedom from interference by other people which every human being inherently possesses except for any reason established under law’. Therefore, an arrest had occurred as soon as Balakrishnan’s free movement had been impeded by the police. Such a conclusion is necessary since it addresses one of the perennial problems, noted by the Law Commission of India in 2001, with the criminal justice system in India – that there exists no clearly defined boundaries between what might be a friendly chat at the police station, and an arrest being made in pursuance of a criminal legislation. A range of procedural safeguards kick in as soon as an arrest is made, including rights to remain silent, consult a legal practitioner, and be produced before a judicial authority within 24 hours of the arrest. Law enforcement agencies in India appear to be aware of this crucial difference and many people are detained for lengthy periods without being with the commission of a crime.
The second ground upon which the ruling was based was that there was no material produced before the court to support the conclusion arrived at by the police that Balakrishnan may have been involved in criminal activity. Third, the court held that in the absence of evidence to indicate involvement mere identification with the Maoist ideology is not a crime despite Justice Mustaque admitting that the ‘political ideology of Maoists’ does not ‘synchronise with our (India’s) constitutional polity’. Therefore, in the absence of evidence which could reasonably lead to a suspicion of an individual’s involvement in criminal activity, an arrest would be unlawful. This line of reasoning is not without precedent in Indian law, with the Supreme Court of India having affirmed that ‘passive membership’ of a banned organization cannot be equated with ‘active membership’ in a series of similar cases in 2011 involving proceedings instituted under the UAPA or the erstwhile Terrorist and Disruptive Activities (Prevention) Act, 1987, a draconian anti-terrorism law which lapsed in 1995. These cases represent a strong judicial response to actions taken under legislation like the UAPA, which criminalises membership of organisations declared ‘unlawful’ by the act, and treat legal entitlements like bail as an exception, and prolonged spells in state custody as the rule.
The judgment is also important since it awarded compensation of a Rs 100,000 to Balakrishnan for ‘trauma and mental agonies’ suffered by him on account of the state’s failure in ‘its public duty to protect the fundamental rights of the citizen’, along with Rs 10,000 as legal costs. This is almost unprecedented in Indian jurisprudence on anti-terrorism proceedings. A central reason why it could be a landmark judgment is the limited financial resources available to many who are charged under anti-terrorism laws, and the award of such compensation may help defray the onerous monetary burden of mounting a legal defence. Imposing costs may additionally serve as a deterrent to law enforcement officials against filing frivolous cases.
It is however prudent to remain cautious about the ramifications of this judgment, with the government of Kerala declaring that it would prefer an appeal to a higher bench of the high court, since the ruling has apparently made ‘the enforcement of the UAPA difficult in the region’.
Gaurav Mukherjee is advocate and Graduate Fellow, School of Policy and Governance, Azim Premji University, Bangalore. He can be reached at [email protected].