11, May 2021 | Sanchita Kadam
The Gujarat High Court in a recent order has pointed to the rampant misuse of the Prevention of Anti-social Activities (PASA) Act in the state. In September 2020, the Gujarat Assembly passed an amendment to the Act expanding its scope, amidst stiff opposition from the other parties. This widened the scope of abuse/misuse.
With the 2020 amendments, and the expanded scope of the law, apart from offences like bootlegging, gambling, prostitution, cow slaughtering and others under the Arms Act, the draconian law can now be used in the crimes like sexual offences, cybercrime, those related to loan sharks and gambling.
The Gujarat High Court has time and again warned the state’s police and the detaining authority against the pertinent misuse of this law in force for over three and a half decades. In several cases one pattern of misuse and continued detention through this law was by the time-tested method of multiple FIRs registered against a person; even if some of these FIRs dated from several years ago. In one case it was found that the several allegations on which the man was detained were all false and despite the Police themselves attesting to this in a report, he was still detained!
The Act has been notoriously misused. Hardly, if ever, has any ‘hardened criminal’ or habitual offender been convicted under this Act and the conviction upheld by constitutional courts. Yet, the saga of misuse goes on, even as the High Court again, points towards its rampant misuse.
For an innocent person to be detained, on a simple (often unverified) accusation or charge that ‘they are suspected of being a threat to public order’ has led to scores of citizens, some of whom, even if they have committed an offence deserve the basic rights of going through a trial before being incarcerated for such long periods of time.
An individual’s personal liberty cannot be weighed in for a monetary compensation of any amount. Under the foundational principles of due process, a non-negotiable for any country run by the Rule of Law, law enforcement agencies are empowered to curb a person’s liberty only following conditions of due process, as established by law.
However, when laws like PASA themselves, give unchecked powers to these agencies to curb liberty, fundamental rights are seriously impinged, only to be restored by an order of the High Court much later, by which time the person has already suffered incarceration for a considerable period, despite being innocent. The principle of “innocent until charged guilty” is completely thwarted when it comes to such preventive detention laws, especially when they are exercised in such an arbitrary manner. Furthermore, a person deemed to be an ‘anti-social element’ has already had his/her reputation tarnished in the community. Their right to live with dignity, as is bestowed by the Constitution has been impinged and without consequences to the law enforcement agency that caused it.
Provisions of PASA
The law came into force in 1985. The ‘definition’ of offenders who can be charged under this law are vague and easily prone to misuse. The definitions include “cruel person” “dangerous person”, “property grabber”, “unauthorised structure” among many others.
A “cruel person” means a person, who either by himself or as a member or leader of a gang, habitually commits or attempts to commit or abets the commission of an offence punishable under section 8 of the Bombay Animal Preservation Act, 1954.
A “dangerous person” means a person, who either by himself or as a member or leader of a gang, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under chapter V of the Arms Act, 1959.
Section 3 of the Act gives the government the power to issue a detention order against any person for preventing them from acting in “any manner prejudicial to the maintenance of public order”. Again, public order is widely and vaguely outlined or defined: the explanation to this tern within the law n describes public order being affected if any activities of the offenders 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 if (there is) a grave or widespread danger to fife, property or public health.
Under section 5, the law provides for place and conditions of detention which means a detainee can be kept under prolonged detention so as to maintenance, discipline and punishment for breaches of discipline, as may be specified in the order.
Section 6 states that if detention is made on multiple grounds, then the order will be deemed to have been made separately for each ground. This means that even if all but one ground is held by the court to be vague or invalid, the one ground would still remain and the detention order sustained.
In case a person against whom a detention order has been made “is believed” to have absconded or is concealing himself, the concerned authority is empowered to attach or sell his property within the State.
The detaining authority has up to 7 days to communicate the grounds of detention to a detainee, from the date of detention order and if any of these are facts that are against the “public interest”, then they may not be disclosed. The state government then has up to 3 weeks to place the order before the Advisory Board for hearing the detainee, if he wishes to represent himself, albeit without legal representation. The Advisory Board then has 7 weeks from the date of detention to submit its report to the government.
The entire report, except the opinion of the Board, shall be kept confidential. The Board is empowered to confirm detention for a maximum period of one year. If such detention order is revoked or expires, the same person may be detained again “Provided that in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall in no case extend beyond the expiry of a period of twelve months from the date of detention under the earlier detention order.”
The amendment Bill of 2020 brought cyber offences also under its ambit which meant any person committing offences described under the Information Technology Act can be detained under PASA. Further it also included money lending offences, which included persons engaged by money lenders who threatens or do use force to collect money from people. It also now includes sexual offenders which could mean anyone who commits sexual offences as defined under the Indian Penal Code. The offences that are being covered under PASA are already offences under some law or the other which means there are already punishments prescribed for these offences but the wider scope of PASA would mean the Police is empowered to practically detain anyone on suspicion of committing of these wide range of offences without due process.
The Bill was opposed by Congress MLAs and the party’s Jamalpur MLA, Imran Khedawala, who alleged that the government will misuse the law to silence the voice of dissent in the state. He further alleged that many people who are running online campaigns against the government and its policies will be targeted through the Act, reported the Indian Express.
Detentions under PASA
In April 2019, Times of India reported that since the announcement of general elections in 2019, over a period of 31 days, 228 persons were detained under PASA while 48 were externed from city limits. The then Additional Commissioner of Police, Special Branch, Premvir Singh said that 49,423 persons have been detained and 6,866 arrest warrants issued. It is unclear to what period these numbers pertained. There is also every chance that the government of the day, indiscriminately uses the process of a problematic, draconian law to target protesters and political opponents. Due process, fundamental to restore balance in an unequal relationship between state and citizen has been given a complete go by here.
Unfairly deemed “cruel person”
A detainee was detained on basis of three FIRs filed against him. One Yasin Jalali was detained under PASA Act and the High Court quashed his detention order, on March 10, 2021 while observing that, “The detaining authority fell in error in treating the activities of the petitioner as prejudicial to the maintenance of the public order. The distinction between ‘the law and order’ as ‘the public order’ needs to be kept in mind”. The court further observed that while the detention order stated that the activities of the petitioner create a sense of alarm and feeling of insecurity in the minds of public at large, the usage of these words was more “in the nature of rituals rather than with any significance to the alleged activities of the petitioner”.
Jalali was detained in January and his detention order was quashed in March, which means that he was incarcerated for 2 months before being released when his detention was deemed to be illegal.
The order may be read here:
Detained for 9 months for being a “bootlegger”
In 2010, the woman was detained as a ‘bootlegger’ under the PASA Act while relying upon 4 FIRs filed against her, two of which were filed in 2007 and 2008. A single judge bench had refused to interfere with the detention order, however a division bench considered the same and quashed the detention order and held that “Just because four cases have been registered against the appellant-detenu under the Bombay Prohibition Act, by itself, do not have any bearing on the maintenance of public order.” The court further observed that the acts constituting the offences cannot be said to have affected the even tempo of the life of the community much less public health.” The court further said that even she is a bootlegger under PASA Act, but merely for that reason, she cannot be detained unless her activities are likely to affect adversely the maintenance of public order”.
The detainee, Aarti Sujnani was detained in June 2010 and the order came to be quashed in March 2011. Her application for quashing the order was dismissed by a single-judge bench of the High Court in October 2010, thus increasing her period of incarceration for want of appreciation of material record.
The order may be read here:
Rampant misuse of PASA
The High Court recently pointed out the rampant misuse of the law by the police when one Shakeel Kureshi was deemed a “dangerous person” under the law in a case of private dispute between two parties. The court observed, “Such tactics need to be nipped in the bud. 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.”
The detaining authority had intended to detain Kureshi and the same was clearly stated in its order dated March 9. Therefore, he filed the petition before the High Court seeking to pre-emptively quash it. The Court stated that if such detention order is passed, it shall not be executed for a month. Thus, here, the petitioner, in a rather rare case, was saved from being detained based on weak grounds and in a case of private dispute, where detention is not at all warranted, as implied by the court as well.
The order may be read here:
Multiple FIRs = dangerous person
The petitioner, Dimple Patel was deemed a dangerous person basis that fact that two FIRs were registered against her and the detention order was also justified on the same grounds. The court, on February 24, 2021, stated in its order that it perused both FIRs and observed that “the detaining authority fell in error in treating the activities of the petitioner as prejudicial to the maintenance of the public order. The distinction between ‘the law and order’ as ‘the public order’ needs to be kept in mind”. The court deemed the order to be unsustainable and quashed the same.
Patel remained detained for two months from December 2020 until the court quashed her detention in February 2021. She was detained merely because two FIRs were filed against her and was deemed to be a ‘dangerous person’. Before either of these FIRs could even reach the court for trial, she was unlawfully detained under a premise of being a threat to public order.
The order may be read here:
Detained without reason
In 2007, the petitioner, Visamanbhai Dhola was detained after being deemed as a dangerous person alleging that he is plundering and usurping properties of innocent people as also eve-teasing women and charging huge amount as interest after giving money on credit to poor persons. the court stated in its order that petitioner was able to show to the competent authority through his representation that he is not a criminal less a habitual offender, yet he was kept under detention for 45 days without any reason and the PASA board had also not confirmed the detention order. The court thus deemed his detention to be illegal and improper as well as malicious and quashed it. The detention order was passed while consciously ignoring the report filed by local police who categorically confirmed that there is no case against the petitioner. The court held that the respondents misused their powers under the PASA for illegal detention and awarded compensation of Rs. 1.5 lakhs to the petitioner.
The Petitioner was kept in detention for a period of 45 days starting December 2007. He filed the petition before the High Court in 2009 and he was finally compensated in 2013 when the court finally reached its decision to compensate him for his wrongful detention. One wonders if in all cases of such wrongful detention the state is made to compensate these victims of state oppression, will the misuse be curbed?
The order may be read here:
Protected before detention
In 2018, Gujarat High Court protected petitioner Devraj Gadhavi from detention who was going to be detained on account of registration of few FIRs against him. The court held that apart from the FIRs against him, the detaining authority had no other material against him. “The respondent authorities are directed to disclose on oath by filing an affidavit of competent authority, that whether they have gone through pronouncements by Hon’ble Supreme Court of India and whether there is subjective satisfaction available to them, based upon such settled legal position to detain the petitioner or not. Filing a routine reply that every offences are registered against the petitioner, would not be sufficient and enough to pass an order or detention,” the order said.
In this case as well, the petitioner was protected from getting detained as the court observed that there not enough material against him
The order may be read here:
The law has become, but a tool with unbridled powers to the state and its police, even the District magistrate who detain people, in many cases, in a whimsical manner with mal intent or simply as a tool of intimidation and abuse. Laws such as PASA that continue to be arbitrarily used for wrongful incarceration have no place in a democracy where transparency and accountability must be the only tools of governance.