Background: From the early 19th century and until freedom was won, political opposition and protest was managed in colonial India through legislations that empowered the government to arrest anyone for ‘defence of public order’ without giving the person recourse to judicial proceedings. These laws were used throughout next 140 years or so to detain hundreds of thousands of Indians without trial and were the target of some of the great civil disobedience actions in the run up to freedom. Yet, barely three years after India won freedom and within the very first month of the adoption of the Indian Constitution (on 26 February 1950), Parliament adopted a homegrown preventive detention law as well.This post is for uma chAKravartI
The Prevention Detention Act was piloted by Sardar Patel and hastily adopted on 26 February 1950. As its initial vality was until 1954, a Bill for its continuance for another three years was tabled in Parliament again in December 1954, and also adopted. When those three years were nearly over and its date of expiry approached, another Bill for its further extension for three years was moved in December 1957. The debate on the Bill in the Rajya Sabha took place on 19 December 1957.
Given the Supreme Court judgment in AK Gopalan vs The State Of Madras (AIR 1950 SC 27) holding the PDA 1950 as Constitutional, and the brute majority that the Congress party enjoyed in the Rajya Sabha, there was little chance of Govind Ballabh Pant’s Bill for the continuation of the PDA being defeated. But the debate was vigorous, and often acrimonious, with members opposing the Bill reiterating the many objections to the suspension of the right to life and liberty and the bulk of Congressmen and women in particular vociferously defending it. By the time Anis is called to speak, the passage of the Bill is assured. Here is an English translation of what she says (link to Hindi/Urdu original):
Begum Anis Kidwai (Uttar Pradesh): Mr. Vice Chairman Sir, there is no government in this world that does not seek to make laws to safeguard the security and wellbeing of its citizenry as well as the stability and robustness of its own administration. Chieftains or elders used to lay down rules and laws for members of their tribes, clans and communities to follow, in order to shore up unity or the foundations of their community amongst them. So when the government brings a law before us, as citizens we should welcome it.
But who doesn’t make mistakes? God alone is true innocence. The Act before the House today expires on 31 December. The Honourable Minister who is today its guardian is one because he first became representative of the people, and so too the members of this House, with whom sit the 40 crores of people they represent. There is a Farsi saying that only a king is privy to all the truths about his realm. But this is an old saying—today, there are neither kings nor subjects. In this age of democracy and representative government, when those very hands that are to lay down the foundation of socialism hold in their grasp a thing that chokes the throats of its people, that wounds individual liberty, that enables tongues to be severed and pens to be smashed, that draws a knife across the throat of justice and fair play, then it impossible to be quiet and not speak. If what I say is understood by the government, it is the people’s voice. Treat the voice of the people as a message from God himself.
There were so many Acts and Ordinances like these in the past that the Congress had raised its voice against, descried them for their brutality and injustice, and roused the people against them. And today, we have come to such a pass that those which once were the mainstays, now have themselves altered their course. But it is our own government, our own country. The people who live here, some are good and some are bad. The bad must be punished for their misdeeds; indeed they must be, else our society will be destroyed. Traitors to the nation, enemies of the people, have existed in every age, and they must exist even today. But justice is owed even to an enemy—even to one who harms the security of India, works in the interest of other countries or damages the public welfare. He should certainly be arrested. Not only that, he should be prosecuted, and if he is found guilty, hang him or shoot him dead, if you will. However, if you will not tell him his crime, if you will not give him an opportunity to explain himself, if you will not produce him in a court of law and incarcerate him or otherwise punish him, how can this be called justice at all? In this very House, voices have been raised against the death penalty, but there are other laws too. Is the penal code not enough? Are all other laws insufficient to award penalties to convicted persons? If they are not powerful enough, please remedy their faults and add to the existing laws the provisions you need.
Acts or Ordinances such as this one are warranted only in emergencies, when the situation is out of control. When Parliament cannot be called, when courts are unable to pronounce judgments quickly, when there is anarchy in the country. Why should a normal situation allow us to dispense with magistrates and judges and make up an Advisory Board to give judgments on crime? How can it be that without even a crime being named or papers shown, lawyers can argue and penalties be awarded? It would be good for us to keep in mind what Sheikh Saadi, the great writer and author of so many wonderful instructive books for children and adults, once said— if a ruler keeps an egg for himself by force or injustice, then his courtiers and officials will take that as license to consign thousands of chickens to the grill. As you can see, that is exactly what is happening in this country today. Pay close attention to what is happening with regards to the anti Hindi agitation.
When an undertrial is brought to a court, arguments for and against his defence are presented. The relative merits of both sets of arguments is on display, and the public is encouraged to use their minds to evaluate any situation. But Acts like these, they produce a crisis situation, in which public passions are aroused, and often lead the public to form sympathies of the wrong kind altogether. What after all happened in the Delhi bomb case? I recall that quite a few people were arrested by the police were sentenced to different kinds of punishment, but that there were also several others who were just arrested and kept in jail. Many had to be released after a short while—some were let go in eight days, others in fifteen, and still others after two months or so (the latter ending up losing their small businesses in the process). All these people were eventually released because no case that they had ever committed a crime could be made out against them.
The houses of some members of our Congress part were searched, and even school teachers were arrested. I myself was involved in efforts to get a headmaster released and had met Pantji in that connection. The teacher had been arrested at a seminar of education experts and taken away, kept in police custody for six or seven days, and then when no crime could be proven, released. For those wsix or seven days, the school remained shut, and our teacher friends ran hither-tither trying to secure their colleague’s release.
If in this capital city of Delhi, the editor of Asthana and Payame Mashriq, Farooqi sahab, can be jailed for an entire year, it is no surprise that in other states, who claim to be only a part of India, esteemed personalities are incarcerated for periods up to five years. This Act is nothing but a blind staff that you are handing to officials to use at will against those who don’t find favour with them—with impunity, heads can be broken with it, and all their entreaties ignored thereafter. Where does justice lie in this power to arrest group upon group of people without informing them of the charges on which they are being held or in this power of a few to pronounce sentence upon them, to subject them to the rigours of jail, and to allow the police such impunity? Is it not to India’s eternal shame that it, a nation that preaches the message of truth, peace, and justice to the world, has to employ such illegal and unjust means to impose order its own house?
I have no objection to either capital punishment or long periods of incarceration; in fact it seems to me that milder punishments foster corruption, lumpenism, and other criminal acts. Yet, the murder of justice that this Act denotes is something that I wish to draw the Honourable Minister’s attention to. The comments made by the High Court and Supreme Court also need to be noted, and due consideration must be given to the concerns of humanity and individual liberty, something that Pantji himself has mentioned. Just think of it: suppose a man is arrested on the basis of false information—how is he to present his defence and prove his innocence until and unless he is afforded an opportunity to appear before the Board? And even if the accused were to be a hardened criminal, he nevertheless has the right to demand justice from the government, if not mercy. At the very least, India would still be able to hold its head high in the international community, because in this country, both the lion and lamb drank at the same watering hole.
After speaking my mind frankly, let me state that I do not harbour any illusions that this House will not approve this Act. I urge you however to do one further thing though—make this Act applicable to the whole country, from one end to the other, so that no one is imprisoned in any part of the country for more than an a year. Let it become impossible for the current practice of people being locked up in jail for four years at a time, without a charge-sheets being served. Let these laws of the jungle not be applicable at least to the members of India’s Constituent Assembly.
In conclusion, I would like to apologise to the Honourable Minister and state that I cannot accept this Act to be beneficial and good. Well may one be pleased with the sight of one’s own homely visage in the mirror, or find one’s own ugly child to be quite adorable, it is also true that does not make us beautiful in the eyes of the rest of the world, or make the sight of us equally pleasing to all. Instead, I would like to once more make the plea that existing laws must be strengthened so that every suspected or charged person is guaranteed that he will not be convicted or sentenced without an opportunity to defend himself. This would be a far better outcome than us being presented with Acts like these year upon year which offend the foundational principles of the Congress, a party which has always fought for humanity, human rights and individual liberty. Rather than this annual bringing of new Acts like these in response to some emergent circumstances and thinking of new ways to implement them, it would be far better just to make the requisite changes to the Constitution itself! Because otherwise the public will just come to believe that it is not bring dealt with justly and that the Congress’s claim that every individual has the freedom of the tongue, pen and thought is being denied to it. At the very least, we should deny others the opportunity to taunt us. Members of the Opposition have raised these very points about our allegiance to civil liberties (even though their observations come from a different perspective, and they themselves do not care for civil liberties enough). It would be far better if Bills such as these that cause so much consternation were not be pressed into use.
With these few words, I close, saying that if it is necessary to support this Bill, I do so.
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