Minority report, Indian style

While the laws against terrorism, passed after the horrific Mumbai terrorist attack, have been generally welcomed...

While the laws against terrorism, passed after the horrific Mumbai terrorist attack, have been generally welcomed, they have also attracted one criticism. The period for which a terrorism suspect can be kept in custody without being charged has been raised to 180 days. Many in this country consider it excessive. So do foreign countries, including those that had enacted even tougher anti-terror measures after 9/11. There is, however, an important difference between the two situations. Other democracies have embarked on detention without trial for the first time, and have therefore limited the duration for which it can last. In India, preventive detention has always been there, right from the earliest days of the British Raj. Apart from public safety acts in every province, the Bengal Regulating Act, 1818, was often used for this purpose. World War II brought in the draconian Defence of India Rules.

Old British laws were applicable even after Independence. During the framing of the Constitution there were vigorous debates over the issue, however, the liberals and the leftists argued passionately that the very concept of detention without trial was repugnant to a democracy. But the majority view of the political class — articulated by Vallabhbhai Patel and silently shared by Jawaharlal Nehru — was that in Indian conditions (the Telengana revolt was in full blast then) preventive detention was “an unfortunate necessity” if the country was to be saved from “disruption, subversion and destruction”, in Patel’s words. This view prevailed. Under article 22 of the Constitution, preventive detention was made permissible. But this could not be the end of the matter. Immediately after the commencement of the Constitution, Sardar Patel, as home minister, presented to Parliament the first Preventive Detention Bill. He claimed that he had spent sleepless nights about what he was going to do, but there was no alternative to passing the Bill into an Act before the weekend. Otherwise, some “dangerous communists” would have been let off by the Calcutta High Court on Monday.

The Preventive Detention Act (PDA) was inevitably challenged in the Supreme Court by the prominent Communist (later Marxist) leader, A. K. Gopalan, a detainee in the state of Madras at that time. The Gopalan case at once became a legal cause celebre and remains historic to this day. To cover this case from day to day was for me an experience both educative and moving. The undoubted hero of the prolonged proceedings was Senior Advocate M. K. Nambyar from down south. There was pin-drop silence in the court when he eloquently argued that there were certain “immutable principles of justice” that, in a democracy that had just attained independence after centuries of colonial bondage, “no man-made law can override”. He further contended that merely because preventive detention was mentioned in article 22 did not mean that fundamental rights guaranteed in articles 19 and 21 could be swept away. Nambyar, however, had a formidable opponent in Attorney General M. C. Setalvad who emphasised that people detained under PDA were being deprived of their liberty in accordance with “procedure established by law” and this was precisely what Article 21 required. Nambyar asked what would happen if Parliament passes a “lawless law” such as prescribing decapitation as punishment for murder. Setalvad replied: “Death is the penalty. Decapitation is the procedure. What is the problem?”

By a majority of four to two — Justices Fazl Ali and Mehar Chand Mahajan dissenting — the apex court rejected Nambyar’s arguments and upheld the validity of the law on preventive detention. Two of its particularly obnoxious clauses were declared void, however. Long after the Gopalan case, successive benches of the Supreme Court accepted many of Nambyar’s points and softened some of the harsh features of preventive detention. But by then, governments had found it necessary to enact the National Security Act (NSA), the Maintenance of Internal Security Act (MISA), Terrorist and Unlawful Activities Act (TADA) and Prevention of Terrorism Act (POTA), some of which were repealed.

Way back in the early fifties, the next memorable act in the preventive detention drama took place in the Lok Sabha when a comprehensive preventive detention law was on the anvil. Syama Prasad Mookerjee, founder-president of the Jan Sangh, an earlier avatar of the BJP, made a powerful speech the likes of which have rarely been heard in the last 60 years. After marshalling devastating arguments against the “Black Bill”, he paused, addressed Nehru directly and said: “Not one word of this is mine. This is what Pandit Motilal Nehru had said in the Central Assembly about the Rowlatt Bill.”

The account of preventive detention’s long journey cannot be complete without a mention of another unforgettable vignette. The Supreme Court was on summer vacation, and Justice Mahajan, (later Chief Justice), as the Vacation Judge, was holding one of the occasional hearings. There was a plethora of petitions against detention orders. Justice Mahajan announced that there would be no lunch break and he would sit for as long as necessary to hear the petition. And with exemplary patience he did. Most petitioners argued their own cases. A Sikh in his late eighties, looking like an old testament prophet, spoke in punjabi and requested the judge to determine for himself whether the frail, old man was capable of “overthrowing the government”. He was released. So were several others. The detention of several was upheld. Also released was a sophisticated lawyer from Madras. He hired a tonga and asked to be taken to one of the Lutyens’ bungalows not far away. There the sentry wouldn’t let him in. An inmate of the house rushed out to welcome him. He was Major General (later General and Army Chief) P. P. Kumaramangalam’s younger brother, Mohan Kumaramangalam, later a senior member of Indira Gandhi’s cabinet.

The writer is a Delhi-based political commentator