Madan B Lokur slams unchecked preventive detention and difficulty in accessing information
A few human rights concerns have emerged in the Kashmir Valley over the last one year since the abrogation of Article 370 of the Constitution. Till the time of writing, the national portal of India website india.gov.in continued to show this Article as a part of the Constitution! What is the truth?
Unchecked preventive detention — whether in the form of house arrest (admitted or denied) or preventive detention in jail in the Valley or outside the erstwhile State — is a matter of grave concern. So is the difficulty in accessing information whether through normal channels of communication or through electronic means such as the Internet.
The concept of house arrest is not specifically mentioned in the criminal manual but the state is empowered to declare a building or house as a sub-jail. Through such declarations, residential accommodations of some political leaders have been converted into sub-jails. The resident of a sub-jail is automatically and undeniably under detention and what is commonly known as house arrest.
When a residential accommodation is declared a sub-jail, the state virtually acquires and takes over the property for its own purposes. The owner of the property is entitled to rent or compensation for the use and occupation of the property. So, in a sense, a person under house arrest without receiving compensation is doubly jeopardised. Compulsory takeover of property even for a limited period has been an issue of great concern in Mizoram where vast tracts of land were taken over by the armed forces to quell an insurgency. Many of these landowners have petitioned for compensation, though with little effect. Residents of the Valley will perhaps face the same problem as the Mizos.
A variation of house arrest was employed during the Emergency when a few tourist resorts close to Delhi were declared as sub-jails and prominent political leaders incarcerated therein, without taking over their property. In a sense, therefore, some Emergency steps have now been adopted to quell dissent.
Preventive detention under the Public Safety Act (PSA) has caused immense hardship to a very large number of persons. Preventive detention is based on a prognosis of future events on the basis of past conduct. Like all preventive detention laws, the PSA is draconian but our Constitution provides important procedural safeguards that must be followed by the state or else the detention order will be quashed. Among them is the fundamental right to be communicated, as soon as may be, the grounds on which the order has been made and the earliest opportunity of making a representation against the order. Decisions of the Supreme Court hold that if there is an unexplained delay of even one or two days in dealing with the representation, the order of preventive detention is vitiated. A challenge to an order of preventive detention can be mounted on these and other procedural grounds. The law regulating the PSA is no different. Many preventive detention orders have been challenged through habeas corpus petitions but unfortunately many of them are still pending in the concerned High Court. This did not happen even during the Emergency. What is the truth behind the delay?
And now a new theory has been advanced by the state. In the case of one political leader, it was stated in an affidavit in the Supreme Court that he had not been preventively detained or kept under house arrest, which means that his residence was not declared a sub-jail. In other words, he was a free person. In that event why was his house swarming with policemen and why was he not free to move around? What is the truth?
A Constitution Bench of the Supreme Court held in the case of A.K. Roy v. Union of India (1981) that, “Laws of preventive detention cannot, by the back-door, introduce procedural measures of a punitive kind… The normal rule has to be that the detenu will be kept in detention in a place which is within the environs of his or her ordinary place of residence. If a person ordinarily resides in Delhi to keep him in detention in a far of place like Madras or Calcutta is a punitive measure by itself which, in matters of preventive detention at any rate, is not to be encouraged… Whatever smacks of punishment must be scrupulously avoided in matters of preventive detention.” Although the PSA permits a detenu being detained outside the erstwhile State, such detention should ordinarily not be resorted to for a variety of reasons. But unfortunately the view of the Supreme Court has been followed more in the breach in the case of several PSA detenus. One gets the impression that resort to preventive detention is actually as a measure of punishment or conviction without a trial.
There are several other reasons why the incarceration of hundreds of persons in the erstwhile State is a gross human rights violation. What makes the situation worse is that a very large number of children have had to suffer what is euphemistically called detention for their own good. The welfare and best interests of a child can hardly be decided in a police station without the involvement of the parents of the child.
Taking a step back
Access to information might not yet be a fundamental right but it is certainly a human right. For the last one year, the residents of the Valley have been deprived of the benefit of 4G Internet. This has had an adverse impact on various aspects of daily life. For students, the joy of learning has become an imposition with 2G Internet. Medical professionals have difficulty in advising and counselling their patients. The right to health is an essential component of the right to life and this has been denied to a large number of patients. Businessman have suffered, the economy in the Valley has taken a hit and it appears that the powers that be are in no mood to relent. The Supreme Court has twice intervened but with no tangible effect. Orders concerning the Internet were required to be reviewed under the rules by a committee headed by the Cabinet Secretary. The committee has been downgraded and is now headed by the Home Secretary. In other words, rather than a step forward towards access to information, a small step back has been taken.
While it may be that uncontrolled access to Internet could pose a security risk through misuse by terrorists and militants, today’s technology is so far advanced that it is possible to block access even in a limited way. For example, thousands of child pornography sites have been successfully blocked in different parts of the world, including India. Therefore, where there is a will to checkmate militants and terrorists through the effective use of technology, it is possible to do so, but taking a short cut by permitting download only by 2G possibly does more harm to a greater number of people than is necessary and is disproportionate.
It is time to introspect and make the human rights of all our citizens an inclusive subject of free and frank discussion. If we keep beating about the bush, its leaves will eventually fall. What happens then?

Justice (retd.) Madan B. Lokur is a former Supreme Court judge. Views expressed are his own