Kamlesh Tiwari, the leader of a Hindutva organisation under arrest for making alleged derogatory remarks against Prophet Mohammad, was given a reprieve from the Allahabad High Court last week when it struck down his preventive detention under the National Security Act, 1980.

The court ruled that the state could extend his detention only by three months under the Act, which allows for preventive detentions under certain circumstances deemed in national interest.

Tiwari, who claimed to be a member of the Akhil Bharat Hindu Mahasabha, was arrested on December 2 last year and has been lodged in the Lucknow district jail since. On December 9, the district magistrate invoked the National Security Act against him and on January 29, the Uttar Pradesh government issued an order putting Tiwari in detention for a year starting December 9, 2015.

Tiwari’s lawyer, however, cited a section of the National Security Act that said the government could extend the period of detention only by three months at a time, after a review.

Draconian law

Preventive detention, unlike the regular criminal justice system, involves holding persons in custody without trial or bail.

The authority concerned, under the law, merely needs to be satisfied that the person is a threat to “national security” or “public order” before directing their arrest. Preventive detention is based on colonial-era legislation that allowed the British rulers to throw freedom fighters in jail and which were colloquially called na appeal, na vakil, na daleel laws – no appeal, no lawyer, no argument.

One would have thought the Constituent Assembly, many members of which had been at the receiving end of such laws or had at least seen them in operation against friends and family, would have ensured such legislation do not mar the statute-books of an Independent India.

However, far from being abolished, laws allowing preventive detention enjoy constitutional protection in India.

While clauses (1) and (2) of Article 22 of the Indian Constitution protect the rights of persons in police custody (to a lawyer and to be produced before a magistrate within 24 hours, to name a few), clause (3) makes these right inapplicable if the person is arrested under a preventive detention law.

Only three limitations are placed on preventive detention under this Article: that the period of detention will not be more than three months, that the detention should be reviewed by an Advisory Board before it is extended, and that the reasons for detaining the person concerned under should be communicated to them.

This last limitation can also be given a miss if the authority concerned feels that the reasons cannot be communicated in public interest. All of this leads to the creation of a Kafkaesque law where you can be jailed for reasons you do not know, will not be told, where you have no right to a lawyer, and where your continuing detention will be decided by a board you do not necessarily have the right to appear before.

Apprehensions raised

So that brings us to the question: What was the Constituent Assembly thinking?

Several of members expressed misgivings about the preventive detention clauses in the Constitution at a meeting in September 1949. Dr Bakshi Tek Chand pointed out that no other constitution in the world (at the time) had including clauses on preventive detention in the Constitution itself. HV Kamath expressed doubts about whether the clause takes away the jurisdiction of the High Courts and the Supreme Court to review such preventive detention, and whether any substantive limitations were being placed on Parliament on these provisions.

Mahavir Tyagi, who had been detained by the colonial government under these laws, best articulated the various concerns against the clause as follows:

“I may assure Dr Ambedkar that, although the British Government did not give him this privilege, the Constitution he is making with his own hands will give him that privilege in his life-time. There will come a day when they will be detained under the provisions of the very same clauses which they are making, (Interruption). Then they will realise their mistake. It is all safe as long as the House is sitting and the Members are sitting on these Benches. But then let us not make provisions which will be applied against us very soon. There might come a time when these very clauses which we are now considering will be used freely by a Government against its political opponents.”

The answers of BR Ambedkar, head of the drafting committee of the Constitution, put the burden back on the Assembly – he argued that since Parliament has already been given the power to make preventive detention laws, these clauses are necessary to limit such powers. However, what he did not satisfactorily address was that through these clauses, preventive detention laws were being given constitutional validity instead of letting courts see whether they were in fact justified and valid from a rights perspective.

In operation

Over the years, some of these fears expressed by the members came true as the Supreme Court, in AK Gopalan vs State of Madras case (1950), held that a preventive detention law could not be tested on whether it violates other fundamental rights, so long as it stuck to the basic limitations framed in Article 22.

This principle was overturned in the Supreme Court’s judgment in Khudiram Das vs State of West Bengal (1975) but that did not prevent it from upholding the validity of the National Security Act, 1980 in AK Roy vs Union of India case (1982), which continues to be the way the court approaches preventive detention laws.

In Tiwari’s case, his alleged statement calling Prophet Mohammed a homosexual and distribution of pamphlets with derogatory remarks against Muslims, which led to protests in several states, border on incitement to violence and probably fall afoul of criminal law.

His statement was purportedly in response to Samajwadi Party leader Azam Khan’s comment in November that members of the Rashtriya Swayamsevak Sangh were homosexuals.

Setting aside the fact that the very notion that calling someone queer is an insult in and of itself, statement and ensuing action against Tiwari seemed to be part of attempts by Bharatiya Janata Party and Samajwadi Party to polarize voters along communal lines in Uttar Pradesh ahead of by-polls in the state in February and assembly elections next year.

This communal one-upmanship could have been tackled by the police using regular criminal laws – and they had initially arrested Tiwari under Indian Penal Code sections 153-A (promoting enmity between groups on ground of religion and doing acts prejudicial to maintenance of harmony) and 295-A (deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs) – or then issued externment orders to keep the peace if that the sole intention.

Instead, by using draconian preventive detention laws against a provocateur, the Uttar Pradesh government seems to have only added fuel to the fire.

Alok Prasanna Kumar is an advocate and Visiting Fellow, Vidhi Centre for Legal Policy.