Delhi May Get Gujarat-like Preventive Detention Law, But Do We Really Need It?

A new preventive detention law is likely in Delhi. But experts warn that it will be replete with misuse.

Back in 2007, Visamanbhai Dhola tried convincing the Gujarat government that he was only a social worker, but to no avail.

The District Magistrate insisted that he was a “dangerous person” and thus, had to be detained under the Gujarat Prevention of Anti-Social Activities Act (PASA).

Sub-inspector BM Ahir’s statement clarifying that all suspicions against him were baseless did not help either and he continued to be in preventive detention. The suspicion of the District Magistrate, according to the recollection of details in the Gujarat High Court order, was based on “four secret statements."

The Gujarat High Court had to intervene. It deemed the preventive detention order in this case “illegal,”  “improper” and “malicious” and directed the authorities to pay him a compensation of Rs 1.5 lakh. 

“It can certainly be concluded that the decision is not only against the settled principles of law, but certainly for some other reasons,” the court said in their order dated 2007.

But, by the time Dhola was released, he had already been in preventive detention for 45 days.

In another case of detention (in 2021) under the same law, the High Court had gone on to say:

“Rampant misuse of PASA is noticed by this court. This is one of such examples, where it is the police authorities who take upon such responsibility to settle the financial transaction / disputes between the parties, with the aid/threat of PASA.”

Interestingly, a law reportedly similar to PASA is supposed to be in the works in Delhi.

The Delhi Law - What’s Happening?

According to a statement released by the Lieutenant Governor's office last week on 9 July, LG VK Saxena has recommended the extension of the Gujarat Prevention of Anti-Social Activities Act to Delhi.

The proposal has been forwarded to the Ministry of Home Affairs (MHA), which will make the final decision on its implementation, according to Hindustan Times.

This development, according to media reports, follows the submission of a proposal by the Delhi Police to the home department in October 2022, requesting the implementation of the PASA or a similar law from Telangana in Delhi.

The proposal was subsequently sent to the LG office and then to the law department for evaluation.

Officials told The Indian Express that Delhi Police wanted a stricter law like PASA to deal with snatchers and drug peddlers. 

But experts The Quint spoke to, seem to think that the Gujarat law in particular and preventive detention laws in general are draconian.

Why The Gujarat Law & The Proposed Delhi Law Are Concerning

PASA is a Gujarat-specific preventive detention law that “aims at preventing any person from acting in any manner prejudicial to the maintenance of public order.” 

The purview of the act extends to boot-leggers, dangerous persons, drug offenders, immoral traffic offenders, property grabbers, sexual offenders and so on.

“The reason why preventive detention laws are draconian is because people are detained on the basis of suspicion alone, without specific or confirmed allegations,” Shrimoyee Ghosh, a human rights lawyer, told The Quint.

Under preventive detention laws, none of the regular safeguards that are assured to an accused under the criminal justice system apply.

“There is no investigation, no trial, no lawyer available to those detained. So, in a way it turns the entire criminal justice system on its head by taking away these basic rights,” Ghosh added.

There is no judge or judicial oversight involved in the way the preventive detentions are carried out — it is either the police or the district magistrate that does the detaining.

These cases go to the courts at a much later stage. Those detained are expected to go through the regular process where they are first taken before an 'Advisory Board' (without representation) set up to review such detention.

Under the PASA, the detenue has to be placed before an Advisory board within three weeks of the date of detention. The advisory board will then review the detention order and either approve further detention or quash it. The detention cannot, however, exceed beyond a year.

Additionally, experts pointed out that words like 'public order' in the Gujarat law and other preventive detention laws in general are kept vague, which allows authorities to employ them as and when they want.

“And where is the guarantee that the vagueness of the law won’t be used against religious, caste and gender minorities?” Bhatt asked.

'Rampant Misuse': Some Examples

Vismanbhai Dola’s example, that we discussed in the beginning of this story, is only one among many cases.

Mitesh Thakkar, a doctor based in Vadodara, was granted freedom from imprisonment by the Gujarat High Court on 27 July 2021. Thakkar, who provided medical care to approximately 3,000 COVID patients during the pandemic, was arrested by the police on suspicion of selling a single Remdesivir injection.

After spending 106 days in jail, the court intervened and prohibited the government from subjecting him to further detention under the Prevention of Anti-Social Activities (PASA) Act of 1985.

"If you are doing this in capacity of one or two injections, then I will have to ask the question of 5,000 injections. If a political party wants to do charity in good faith (by distributing injections to the needy), then everything is in accordance with law? And PASA for two Remdesivir injections concerning a doctor?" the court had questioned.

Similarly, in 2021 the police had deemed  Rohitbhai Luni as a ‘dangerous person’ under PASA and wanted  to detain him. Luni’s lawyer, however, told the court that the dispute based on which the police wanted to detain Luni was a private one and under no circumstances could it be brought under the definition of “dangerous person” under PASA. 

The High Court, after hearing Luni’s case agreed and pointed out this case was one of the many where “rampant misuse of PASA” was evident.

In another 1989 case, the Gujarat police had preventively detained a man on the suspicion that he was a bootlegger.

The detention order said, “ it appears that you are a prohibition bootlegger, doing illegal activity of selling English and Deshi  liquor. You  and your companion are bearing and showing deadly weapons like  Rampuri knife to the innocent  persons passing  through.”

When the case came to the Supreme Court, it  ruled that the detention order was illegal and bad because the “statements are vague and without any particulars as to what  place or when and to whom the detenu  threatened with Rampuri knife and whom he has alleged to have beaten.”

In fact, according to the numbers provided by the chief minister’s office (CMO), as many as 5,402 detentions were made under the law in 2019 & 2020 alone.

Gujarat had the third highest number of detainees in 2021 after Tamil Nadu and Telangana, the latest data from National Crime Records Bureau (NCRB) said.

So, Do We Really Need This Law?

Ours is one of the very few Constitutions across the world where the provision for preventive detention laws like the PASA is built in (under Article 22).

Further, according to Advocate Bhardwaj, the only way ahead is to scrap preventive detention laws, but for that our legislature will have to amend the Constitution as well.

After all, in 2011 (Rekha Vs State of Tamil Nadu) the apex court had said:

“Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law."