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India – Preventive Laws- Fear and Justice

THE earliest preventive laws in India included The Criminal Tribes Act, 1871, and The Bengal Goondas Act, 1926, which defined a goonda as a hooligan. The Preventive Detention Act, 1950, was in force for a decade before being replaced by the controversial Maintenance of Internal Security Act (MISA) during the Emergency in the 1970s. It was repealed later.

The Prevention of Terrorism Act, 2002, or POTA, repealed in 2004, replaced The Prevention of Terrorism Ordinance (POTO) of 2001. The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974, was passed to detain individuals on the mere suspicion of their involvement in smuggling activities. After the repeal of POTA, the government brought in The Unlawful Activities (Prevention) Amendment Act, 2008, incorporating many stringent provisions of the lapsed POTA.

The Terrorist and Disruptive Activities (Prevention) Act, 1985, or TADA, was allowed to lapse after a decade and was replaced with the National Security Act (NSA). The Armed Forces (Special Powers) Act, 1958, (AFSPA) and The Jammu and Kashmir Public Safety Act, 1978, are mired in controversy.

The earliest preventive laws in the States were The Karnataka Habitual Offenders Act, 1961, The Kerala Habitual Offenders Act, 1960, and The Goa, Daman and Diu Habitual Offenders Act, 1976. Gujarat, Bihar, Maharashtra, Assam, Rajasthan, Madhya Pradesh, Uttar Pradesh, Manipur, undivided Andhra Pradesh, Kerala and Karnataka have preventive laws.

Any detention law leaves a scar on society. The Criminal Tribes Act, passed in October 1871, was one of the earliest detention laws in the country and caused much anguish and despair. Enacted under the ruse of controlling a few nomadic tribes that were said to be “criminal”, the law empowered the colonial administration to undertake “racial profiling”. It insisted on the “registration of Criminal Tribes and Eunuchs” and their surveillance and control. Any tribe, gang or class of persons deemed to be “addicted to the systematic commission of non-bailable offences” would be declared a criminal tribe.

The law forced such groups to live in a particular area, thus restricting their movement for the maintenance of hassle-free surveillance. It made them sign a “crime register” before a magistrate at least once in a week. They were denied social security and dignity. Prime Minister Jawaharlal Nehru called the law “monstrous”. It was repealed in 1952.

Meanwhile, a statement released on September 20, 2006, by Amnesty International said: “Around 77,000 persons had been arbitrarily arrested under TADA and thousands were tortured with a view to extracting confessions from them. Of those arrested, around 72,000 were later released without having been charged or tried. A decade after the TADA lapsed, 147 persons are still under detention.”

A document presented at the All India Milli Council’s national convention on “Terrorism and justice”, held in New Delhi in 2008, points out that nearly 3,500 people from various States were detained under POTA in its first three years of existence. Gujarat had the largest number of such detainees, most of them Muslims.

The law made it possible for a suspected person to be detained for up to 180 days without the filing of a charge sheet in a court and treated a confession to the police as an admission of guilt. Under regular Indian law, a person can deny such confessions in court. Union Ministry sources claimed that nearly 4,000 people across the country were booked under the law. Another 800 people, including Vaiko, the founder leader of the Marumalarchi Dravida Munnetra Kazhagam (MDMK), have been detained at various times for making speeches in support of the Liberation Tigers of Tamil Eelam.

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