How New Is the Threat to Individual Freedom in India?

Preventive detention laws have been used against the economically marginalised for years.

Anwar Ali*, a bakery worker, was arrested for the theft of a Karbonn phone in Hyderabad under Section 379 of the Indian Penal Code. While in prison, he was again detained under the Telangana Prevention of Dangerous Activities Act, 1986 (PD Act). In plain terms, the government deprived him of his freedom for one year without trial for a petty offence.

Ali was one of 1,06,612 Indians detained under nine preventive laws – such as Telangana’s PD Act – in 2019. Gujarat detained 2,601 people, Tamil Nadu detained 1,883 and Jammu and Kashmir detained 600. Of these, 489 were detained under the National Security Act, 1980 (NSA) and the rest on the grounds of threat to the maintenance of public order.

These days the debate on the threat to human freedom revolves around prominent individuals from the intelligentsia. But the government’s data in the Crime In India report reveals that 99.5% of detenus are semi-literate and from underprivileged communities. They receive only negative attention from the media. Article 22(3) of the Indian constitution itself created the classes of citizens deemed undeserving of due process of law. In all, the law and public debate render due process of law irrelevant for this section of the incarcerated. There appears to be a clear institutionalisation of class bias in perceptions around ‘threat to maintenance of public order’.

Nineteen states have detention laws that are copied from the NSA. Claiming to be a threat to the maintenance of public order, these laws render ordinary offences as extraordinary. Public order is “deemed likely to be affected adversely if their activities are considered as calculated to cause directly or indirectly a feeling of insecurity among the public.” Their conceptions of public order are considerably elastic that includes “general public” or “a section of it”. This conceptual flux leaves arbitrary power to interpret them but has grave consequences to the petty offenders.

Routinised extraordinary power

Following a certain modus operandi, these laws amplify the powers of the police. Police commissioners are given magisterial powers, to detain anyone for three months. However, the governments have to delegate these powers specifically for three months at a time, under extraordinary circumstances. These restrictions are meant to check police power. In reality, though, these powers are extended routinely.

Telangana brought a large part of the state under the detention regime; over the last six years, it appointed eight more police commissioners with the magisterial power to detain. This surreptitious executive measure has made the extraordinary law a source of permanent and normal technique of detention without trial.

Not a week goes by without the Telugu media reporting a common open threat to human freedom by these commissioners. Petty criminals are routinely imprisoned under the PD Act on the orders of one of three police commissioners in the Greater Hyderabad area. Occasional detention of an accused of a sensational crime is only a red herring to justify the unaccounted power.

Those who believe in the due process of law might wonder whether martial law has been in vogue. The truth is, no martial law is necessary for such treatment of the citizens, especially if they belong to the underclass. Over the past six years, Telangana has detained more than 2,000 citizens without trial in the name of maintenance of public order under the PD Act.

This detention power of the police depends on the state’s ability to weave a narrative of extraordinary circumstances. Ali’s detention order, actually a judgment by the police commissioner, but reinforced by an Advisory Board in secret proceedings, is crafted masterfully: He is a “Goonda and has been habitually engaging himself (in) unlawful acts and indulging in acts of goondaism by acting as a leader/member of a criminal gang and committed property offences such as theft, robberies and house burglaries in the limits of Cyberabad Commissionerate and thereby causing harm, panic, a feeling of insecurity among the innocent general public of the locality and adversely affecting the public order and thus he has been acting in a manner prejudicial to maintenance of public order apart from disturbing the peace, tranquility, social harmony in the society.” Thus a simple infraction of law is magnified and made to appear as a deadly threat to the social order. A Manichean dualism seems to inhabit the perception of threat.

Let’s take another instance: Trideep Sarkar* is an accused in a case of flesh trade. “His immoral activities are dangerous to the family system, harmful to local inhabitants and lead to social unrest, spreads sexually transmitted diseases and endanger public health at large; affect the future of youth and thus are prejudicial to maintenance of public order,” says his detention order. These patriarchal assertions as self-evident truths are supposedly issued on the grounds of public interest.

Secrecy protects the arbitrary powers

What are the facts underlying these master narratives? A closer scrutiny of government orders from detenus reveal there are standardised formats for different offences but each time, only the details of the accused are changed. The Advisory Board, an executive court without judicial powers whose work is not accessible to the public, conducts proceedings in secrecy and expresses an ‘opinion’ on whether or not there is “sufficient cause for detention”.

Detenus say they are not given a meaningful opportunity to present their cases. As Article 22 proscribes the appearance of advocates before this Board, the families of detenus only beg for mercy. If challenged under due process of law, none of the above inferences and conclusions would stand scrutiny. Yet, the proceedings of this court remain protected in the name of public interest.

Public opinion seems to approve of these detentions. Hyderabad police often publicly invoke these laws in sensationalised cases as if appealing to the ‘public’ anger for approval. Dependent on the police for crime stories, the media faithfully reports their words as the truth. Ex-detenus told this researcher that in fact, sensationalised crime stories are cited as the reasons for invoking the detention laws.

A rule of law but not the rule of law

Liberalism acknowledges the rule of law as the ultimate arbiter of all the questions of justice. But Article 22 has created a different rule of law for certain classes of citizens. While the intelligentsia theoretically believes due process of law is fundamental to democratic governance, its perceptions and practices often fail to demonstrate this in case of the underclass.

Yes, the threat to freedom in India is graver than it was before, but the above facts and practices demonstrate that it is neither unprecedented nor sudden. For long, governments have institutionalised the threat to human freedom and emaciated it unrecognisably.

Parts of civil society have been actively justifying this practice but the intelligentsia has remained indifferent, its claims notwithstanding. This attitude has undermined equality before law as a political value and created a generalised atmosphere for a threat to freedom.

Even now, the intelligentsia refuses to recognise this perceptual class bias, when the debate revolves only around a dozen prominent citizens and ignores the plight of the underclass under the same category of laws. It is a tragic reminder of its class nature as well as the need to overcome the perceptions plaguing it.

*Names changed.

Murali Karnam, PhD, teaches political science and penology at the Nalsar University of Law, Hyderabad.