This article is written by Rudresh Mishra, from School Of Law, Jagran Lakecity University, Bhopal. This article analyses the similarities between the Rowlatt Act and the Indian preventive detention laws.
Preventive detention refers to the practice of incarcerating the accused before trial, assuming that it is not in the public interest to release the accused, especially with the assumption that they may commit further criminal offences. The release of the accused is believed to weaken the state’s ability to conduct investigations. Preventive detention gives any police officer the right to arrest anyone who is suspected of committing a crime to prevent them from doing so. The person may be imprisoned for a period of three months to two years, which can also be extended. These powers are granted to police officers under various central laws, such as The Code of Criminal Procedure, 1973 [“CrPC”], Unlawful Activities Prevention Act, 1967 [“UAPA”] and National Security Act, 1980 [“NSA”].
Given the recent serious application of the law, this article is relevant, for example, only within 22 days of protesting against the 2019 Citizenship Amendment Act (CAA); 5,558 people were held in Uttar Pradesh. It is also worth mentioning here that, in Uttar Pradesh, more than half of the total number of people arrested by the National Security Agency in 2020 were arrested in relation to small incidents involving the slaughter of dairy cows.
Given the dramatic increase in preventive detention cases in India, the similarities between preventive detention laws and oppressive colonial laws cannot be ignored. This article examines the evolution of the preventive detention laws in British India, which were severely criticized at that time but had a place in the Constitution of the independent post-colonial India.
India’s current government system includes certain specific laws and regulations, which are formulated to maintain internal security or have existed since British rule. In the modern world too, caste and community violence is widespread. According to Article 21 of the Indian Constitution, human freedom is the core principle of the Indian Constitution. It guarantees a decent life for all, which is a basic and inviolable right. However our drafters chose to retain temporary detention to prevent anti-state actions. There are various laws on preventive detention, but it is not clear to what extent these procedures can protect the interests of detainees. It has been felt that current laws are more conducive to arbitrary exercise of power and thus, require immediate action.
Overview of the Rowlatt Act
The Rowlatt Act, also known as the Black Act, was passed by the British government during the First World War in 1919 and was named after Sir Sidney Rowlatt, Chairman of the Rowlatt Committee. The purpose of implementing the law was to suppress the uprising and eradicate the anti-British conspiracy in India.
The Rowlatt Act allowed the British to arrest anyone suspected of planning to oppose British rule. According to this law, anyone suspected of participating in an anti-British uprising revolt could be sentenced up to 2 years in prison without a trial. Any suspect could be arrested without an arrest warrant and detained indefinitely. The law also authorized the government to silence the press when it wanted to investigate the motives and the evidence. As a result, all cultural and religious public gatherings were banned.
Therefore, this law was categorically opposed by the Indians. Mahatma Gandhi was also against this law and organized “Hartal”, a form of protest through non-violence, work stoppages and hunger strikes. However, in many places including Mumbai, Ahmedabad and Punjab, unpleasant changes took place, leading to unrest and violence. When Gandhi realized that India was not ready to accept non-violence, he withdrew the hartal.
The British government then passed the Rowlatt Act, which aimed at preventing Indians from resisting the British rule by suppressing revolutionary groups and depriving Indians of their personal freedom and speech rights. The Rowlatt Act mainly stipulated that anyone can be arrested and deported on suspicion of sedition and rebellion. The trial of prisoners was to be conducted by special courts established for this purpose. Under the Act, even the mere possession of treacherous literary works was punished.
Overview of present Indian preventive detention laws
Preventive detention is the practice of pre-trial detention of defendants, provided that their release will not benefit society and they may commit various other crimes if released. In it’s simplest sense, preventive detention means that a person is detained without a trial and conviction in a court because of the threat that if they are released again, they might harm public law and order. In the case of Mariappan v. the District Collector (2014), it was held that preventive detention is not to punish anyone but to prevent certain things from being committed.
The repressive British regime long used the “Preventive Detention Act” as a tool to suppress dissidents. To commemorate the history of India, the British government passed many laws equivalent to the country’s preventive detention laws. For example, the Defence of India Act of 1915 was a law passed during the First World War that allowed suspects to be tried in court without questioning their verdict. Under this law, they arrested freedom fighters, activists, dissidents and other propagandists who were found to be suspected of crimes and were detained during the trial. Similarly, the Anarchical and Revolutionary Crimes Act passed in 1919, better known as the Rowlatt Act, allowed the government to arrest and detain suspects for up to two years without trial. Opposition and protests were held across the country, including the Loras Satyagraha movement against Rowlatt Act led by Mahatma Gandhi. Another example of such preventive detention law was the Armed Force Ordinance,1942, which gave the armed forces vague and artificial powers to detain and use force, and even kill civilians when they were suspected.
Where is the similarity?
In the British era, this kind of preventive detention law was widely criticized by Indians. After Rowlatt Satyagraha resisted the opposition, various movements sprung up. The British government was trying to crack down the political dissidents through laws such as preventive detention and sedition. However, after independence the preventive detention law was not abolished but is part of the new Constitution.
Is Rowlatt Act a reflection of preventive detention laws?
Although there were disputes and disagreements among lawyers, as the Internal Security Act of 1971 (repealed, Maintenance of Internal Security Act, 1971 [“MISA”] and NSA’s “Pre-Detention Act” etc. are still an integral part of the Indian legal system. The administration does not care about the same. Preventive detention was discussed in the debate of the Constituent Assembly. However, still such laws were incorporated in the Indian legal system and have increased exponentially. A large number of people including students, doctors, journalists, etc. have been detained for long periods of time without charge, including many who were refused trial. Thus the regulations on preventive detention do reflect the Rowlatt Act.
The Judicial Committee found in its 177th Report in 2001 that out of 57,163 arrests of potential crimes in Delhi in 2000, 39,824 were preventive arrests. This clearly demonstrates India’s ruthlessness in applying the preventive detention laws. The level of preventive detention is so high that many innocent people are detained under the pretext of preventive detention. The following are some examples of how the law of preventive detention has been applied recently.
Chandrasekhar Azad an activist and leader of Dalit, was initially charged with robbery, murder, riot and arson. After the court released him on bail for political reasons, he was arrested by the National Security Agency a day later and detained for 15 months, but he was never charged.
During the JNU dispute in 2016, when the trial was still in its infancy, protests against the hanging of Afzal Guru were widespread and laws such as sedition and preventive detention were used to suppress the protests. Kanhaiya Kumar was arrested and charged with sedition, and more than seven other students were also arrested under the preventive detention law.
In protests against CAA, 1,113 people were arrested under the Preventive Detention Law and 5,558 people were detained, including students, doctors and teachers who were initially detained by various FIRs; however, when they were later released on bail, they were registered under UAPA (The Unlawful Activities Prevention Act, 1967)and detained again. Some of them, including Umar Khalid, were even detained for six months without any charge.
All these examples show how leaders can use the preventive detention law to quell dissent and opposition. However, if an authoritarian government emerges in the future that can begin to apply the same laws to innocent people who despise them or disagree with the government,thus it will affect the freedom of citizens. Autocratic governments use preventive detention extensively and there is an urgent need to introduce controls and counter-measures in these laws to prevent abuse because such laws definitely reflect the Rowlatt Act of 1919. These laws must be reviewed before they become as brutal as the Rowlatt Act.
Judiciary’s stance on preventive detention cases
In the famous case of AK Gopalan v. State of Madras(1950), when the Preventive detention Act of 1950 was passed, Justice Das issued an accompanying comment: “The procedures prescribed by the law may violate the sense of Justice Hirala Kania, The judgment passed by the legislature may contradict the idea of the court’s criminal responsibility.”
In Nand Lal Bajaj v. The State of Punjab and Others(1981), although the court agreed that the law on preventive detention and the lack of legal representation as a basis are completely inconsistent with the basic considerations of the parliamentary government structure, it concluded that the problem is as follows. It is mainly a question of politics and politicians, not the judiciary. The Supreme Court has repeatedly warned judges to exercise restraint and generally should not interfere with legislative or administrative agencies.
In Shri Pawan Kharetilal Arora v. Shri Ramrao Wagh & Others(1953), one person was imprisoned for nine months for twenty-four false cases. The nature of the error and the serious error committed by the accused shocked the judge’s conscience. The judge then acknowledged the authorities’ apology and determined that the authorities acted in accordance with basic honesty.
It can be said that the adoption of such laws is definitely to prevent anti-social factors from interfering with the operation of society and good government, but these laws directly affect the basic rights and freedoms of individuals too. The difficulties caused by the irresponsible application of these laws are very time-consuming for the judiciary and the lives of the arrested.
In mature democracies, preventive detention laws are unnecessary, especially as a peacetime measure. In the United States, the law on preventive detention is completely unknown, and even in the United Kingdom, it was only used during the war. In fact, no country in the world uses preventive detention during peacetime like India.
Preventive detention should only be used during major national emergencies, not during peacetime or normal times. The guarantees provided for the detention of a person must be strictly observed and the interpretation of preventive detention must be very narrow. It is guaranteed that it does not belong to the four aspects of the relevant law and does not infringe on personal freedom.
It is vital for developing countries to protect scarce resources while maintaining peace and order. Since independence, India has suffered many rebellions based on gender, class, race, beliefs, etc. Autonomy is achieved through the use of these preventive detention methods and national security laws. The law on preventive detention is not entirely fair and proportionate and some amendments or additions are needed to meet the scope of the right to life and freedom. Defending human rights is a fundamental concept. India is a country with a vast territory and a long national border. It is composed of many identities, so that the neighbouring countries are hostile to it. In this case, the responsibility for maintaining independence, dignity and sovereignty lies in these security rules, measures and regulations.
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