Illegal detention is antithesis to Rule of Law
The Supreme law of the land, the Constitution of India, has guaranteed fundamental rights to the individuals under Part III from Articles 1235 These fundamental rights were incorporated in the Constitution to constrain arbitrary and excessive use of powers conferred on both the legislature and the executive organs of the government
The Supreme law of the land, the Constitution of India, has guaranteed fundamental rights to the individuals under Part III from Articles 12-35. These fundamental rights were incorporated in the Constitution to constrain arbitrary and excessive use of powers conferred on both the legislature and the executive organs of the government.
The Supreme Court of India is the final interpreter of the Constitution of India and is the custodian of the fundamental rights of individuals. The Right to Life and Personal Liberty is one of the fundamental rights and is guaranteed by the Constitution of India to both citizens and foreigners equally.
It reads as follows:
Article 21 of the Constitution of India says:
“No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
The Supreme Court of India in its landmark verdict in Menaka Gandhi Vs. Union Of India in 1978 held that the procedure established by law must be just, fair and reasonable. Therefore, mere enactment of a statute does not confer any absolute right on the executive to curtail the Right to Life and Personal Liberty of an individual unless the procedure adopted to enact such legislation qualifies the test of Due Process of Law Doctrine.
At this juncture, it would be proper to cite the recent case of detention of Congress Party Working President AnumulaRevanth Reddy. Revanth Reddy was picked up during the early hours of December 4th on a premise that his presence in his constituency would probably detriment the election campaigning of the then caretaker Chief Minister, scheduled to be organized at Kosgi region.
The reason for the detention, as provided in the detention order ,was his alleged provocative averments during a media interaction, in which Revanth was alleged to have mentioned that he would ensure public gathering to be addressed by the then caretaker Chief Minister, as part of the election campaigning, would be obstructed.
The issue then reached the Hyderabad High Court vide a Habeas Corpus writ petition to ensure the attendance of Revanth Reddy and to know his whereabouts.
The aforementioned case could gain immense traction due to the following reasons:
a) The person detained is a political leader and a working president of a Party with National prominence;
b) The person detained is highly influential and also commands immense public support from certain sections in the State of Telangana;
c) Media glare also helped the issue to gain immense prominence.
The detention of Revanth Reddy by breaking into his house in the early hours shook my conscience and I have posed the ensuing questions to me:
What would be the plight of an indigent common man on the streets when he encounters such a situation? What would be the plight of his family members when their son/daughter whereabouts are unknown? When a commoner is detained would the media manifest the same exuberance it had shown in Revanth’s detention case? Would the police respond to the repeated requests of the family members of the detenu? Their repeated knocks at the doors of judiciary would yield any expeditious result? Is the Right to Life and Personal Liberty of an individual in India is so vulnerable that the enforcement agencies could curtail a fundamental right on mere surmises or conjectures?
Section 41 and Section 151 of the Criminal Procedure Code confers right on the enforcement officers to detain any individual on the grounds of reasonable apprehension.
However, the grounds which conditioned the decision of the respective Station House Officer should be recorded in writing whilst detaining an individual. This practice has been given a go by in myriad instances which eventually led to the failure of the prosecution’s case during the trial stage in the courts.
Also, regrettably, there is no mechanism in place which obliges the enforcement agencies to verify the veracity of the complaint lodged by the complainant and therefore in majority of the cases the discretion lies squarely on the Station House Officer to determine the nature of the offence and which all sections can be imposed in a particular case.
This unfettered power conferred on the enforcement agencies, provided through various laws in operation, militates against the fundamental tenet of Rule of Law.
The principle of Rule of Law says:
No one shall be detained except for a distinct breach of law.
As there is no able mechanism in India to ascertain whether there is a breach of law or not in a particular instance, a mere surmise can condition the decision of an SHO. Also, there is an immense possibility of incorporating a draconian section in the First Information Report in lieu of an innocuous one.
Therefore, the argument that a case lodged on feeble grounds would not pass the muster of judicial scrutiny is absurd, because the detention of an individual before any constructive or objective analysis of the complaint lodged could ensure initial mental trauma sans any evidence of commission of the alleged offence.
An illegal detention of a Government Servant for more than 48 hours could result in his suspension. This per se bears testimony to the very fact that illegal detention causes irrevocable damage to one’s personal life.
It is also pertinent here to note that if illegal detention is proved before the court of law the remedy is civil in nature and not criminal. Hence, there is no criminal liability for detaining an individual without any legal sanction and therefore a civil remedy for an illegal criminal action looks grossly inappropriate and ridiculous.
Yes, there is always a provision to make such officer accountable for his/her misdeeds vide a Writ Petition before the High Court of competent jurisdiction, however, the initial damage caused cannot be revoked by exercising subsequent accountability mechanism and therefore curtailing absolute powers conferred on enforcement agencies is sine qua non to safeguard the rights of individuals.
Rudul Shah Vs. State of Bihar is a landmark case in point. In the above case, the detenu was under illegal detention in prison for more than 14 years and a trivial compensation was granted later. It only manifests how poorly our illegal detention laws were framed for abrogating one of the significant fundamental rights of Right to Life and Personal Liberty.
In a recent verdict pronounced by the lower court in Hyderabad pertaining to the assassination of Maddalecheruvu Suri A1(Accused 1) Bhanu Kiran was convicted for Life Sentence and A2 for 7 years and A3,A4,A5 and A6 were acquitted after being in incarceration for more than 7 years, itself explains the inefficiency of our enforcement agencies and procrastination involved in the judicial process.
The Preventive Detention laws were enacted to invoke against extremist or terrorist acts , however, there were many instances when innocent individuals were detained under such draconian laws. The invocation of Maintenance of Internal Security Act ( MISA) against the political activists or agitators during the Emergency days of 75-77 strengths the proposition that the Right to Life and Personal Liberty of an individual is regrettably made subservient to the whims and caprices of the executive.
I do not intend to imply diluting the powers conferred on the executive is the only remedy for upholding the rights guaranteed to the individuals by the supreme law of the land. But, my only grievance is: power without appropriate accountability might lead to despotism. A democratic country which proudly claims to be governed by the tenets of Rule of Law must not allow the system to function based on the diktats of a few privileged classes, especially when the individuals’ fundamental rights are at stake. Power tends to corrupt, absolute power corrupts absolutely.
By P V G Umesh Chandra