Preventive detention & the case of Mr. Jagtar Singh Johal.

 India's preventive detention laws are rather elastic and leave much discretion and wriggle room for the police. This means that it is difficult to say what is or isn't unlawful detention.

Consider the following excerpt from the UN Working Group on unlawful detention re. the detention of Mr. Jagtar Singh Johal.

Under the Code of Criminal Procedure 1973, every police officer who carries out an arrest should wear visible identification and have a memorandum of arrest attested by at least one witness and the person being arrested.

This is not the case. The Code states-  A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented. The officer may be in plains clothes. If the suspect is considered dangerous, he may be abducted off the street and bundled into a van by plains clothes officers. But this is true of most countries. 

-Clause (1) of Article 22 of the Constitution states that “no person who is arrested shall be detained in custody without having informed, as soon as maybe, on the grounds for such arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice.” Clause (2) of Article 22 says that every person arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding of course the time necessary for the journey from the place of arrest to the court of magistrate. The clause further declares that no such person shall be detained in custody beyond the said period without the authority of a magistrate. 

So for so good. Then comes the kicker- Clause (3) of Article 22 however provides that clauses (1) and (2) shall not apply to an enemy-alien or to a person who has been arrested under any law providing for preventive detention. 

Where the witness is not a relative of the accused, the police must inform the person arrested that he or she has the right to have a relative or friend named by him or her informed of his or her arrest. 

But not in the case of any law providing for preventive detention.  

. Because Mr. Johal was not given the legal reasons for his arrest at the time of his arrest, the deprivation of his liberty was in violation of article 9 (2) of the Covenant, as well as the Code of Criminal Procedure 1973, making his arrest devoid of any legal basis and amounting to arbitrary detention, falling within category I

It appears that the Working Group has no Indian member. The sad reality is that 'preventive detention' is whatever the police want it to be. It is up to the Courts to pull them up but if they refuse to do so there is nothing that anybody can do about it. 

In Union of India v Paul Nanickan and Anr, the Supreme Court of India stated: “the object of preventive detention is not to punish a man for having done something but to intercept him, before he does it, and to prevent him from doing it. No offence is proved, nor any charge formulated; and the justification for such detention is suspicion or reasonable probability and not criminal conviction, which can only be warranted by legal evidence.” It appears that some 'friend' of Mr. Johal tipped off the police that he was involved in terrorism, assassination, murder etc. That was enough to establish 'reasonable' suspicion of  cognizable offences occurring and 'preventive detention' to be permissible. In other words, you have a lot of very nice and sweet laws but then another law which says they don't apply if there is any threat to ‘national security’ or ‘public order’. In the case of the Punjab there genuinely was a Khalistani insurgency which was put down by extra-judicial killing on an industrial scale. But, surely, there are other parts of the country which have never faced anything similar? It is a hopeful sign that the Modi government is willing to reconsider the sedition law. But that was always the weak sister of the more draconian laws of the UAPA type. 

What course should the Johal family pursue? Section 43D(5) in The Unlawful Activities (Prevention) Act, 1967 states ' Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.' The problem here is that those 'reasonable grounds' can be of a type inadmissible in court. I believe the Johal family (the eldest son is a solicitor in Scotland) have pursued this case vigorously but first the Punjab Police and then the NIA are playing musical chairs with them. Even the Special Cell of the Delhi Police got involved. Was Johar seen as a money-tree? Perhaps. Greedy cops may have wanted to shake down the family. 

Returning to the UN Working Group's report we find that they admit that Mr. Johal's arrest and detention was legal even though they had earlier said it wasn't. 

. The provisions in the Unlawful Activities (Prevention) Act 1967 on pretrial detention, particularly section 43D (5), authorize automatic and indefinite detention... This provision shifts the presumption of innocence and requires accused persons to prove their innocence to be granted bail. The Supreme Court of India confirmed this when interpreting the provision in its decision in National Investigation Agency v. Zahoor Ahmad Shah Watali. As a result, courts can accept the torture-induced confession as sufficient grounds to meet the shallow threshold that a case against Mr. Johal is prima facie true. To obtain bail, Mr. Johal would have to prove his innocence, which he could do only by disproving the confession, which the courts will not dissect at this stage. It is argued that this is a closed loop, which results in automatic and indefinite detention.

But it isn't really a closed loop is it? The Court can decide that the inadmissible evidence is not enough to meet the test of 'reasonableness'. Furthermore, Mr. Johal can disprove his confession by showing he could not have done the things he was accused of because he was doing something else, somewhere else, at that time.  

 This arbitrariness of the law under which Mr. Johal is detained is borne out by the length of Mr. Johal’s pretrial detention, which cannot be justified.

Yes it can. The contention is that Mr. Johal was involved in terrorist activity. That justifies keeping him locked up.  

Pretrial detention should be an exceptional measure

Terrorism is exceptional. Few parts of India have suffered it on the scale that the Punjab did.  

and, even in cases of counter-terrorism, deprivations of liberty must remain consistent with the norms of international law.

This is not true. This same working group has been calling for the winding up of Guantanamo Bay for 20 years. It is still open.  

According to the Human Rights Committee, it should not be the general practice to subject defendants to pretrial detention.

It isn't the general practice. Terrorism is a special case.  

Detention pending trial must be based on an individualized determination that it is reasonable and necessary considering all the circumstances for such purposes as to prevent flight, interference with evidence or the recurrence of a crime.

All of which holds true of those involved in terrorism and assassination.  

The relevant factors should be specified in law and should not include vague and expansive standards such as public security.

'Vague and expansive' is itself vague and expansive. No change in the law should be motivated by vacuity and garrulity.  Johal is accused of being a terrorist in a part of the world which has suffered greatly from that type of craziness.

The Working Group says

the authorities have failed to explain why Mr. Johal’s pretrial detention is reasonable and necessary, thus making it arbitrary.

This is utterly mad! The authorities say Mr. Johal is a Khalistani terrorist. It is reasonable and necessary to keep him in prison. If the charges against him are proved he may be hanged.  

It is possible that Mr. Johal, as his family contend, was wholly innocent of any involvement in Khalistani terrorism. Still, he was a fool to visit India because his online activities would have brought him under the scanner of the Intelligence Agencies. It is also possible that he was broken by the authorities and then shifted from one jail to another in the hope that he could glean information about   other terror or criminal cells. Alternatively, there may be a political angle to this. Perhaps the election of an AAP government in Punjab augurs glad tidings for Mr. Johal's wife and family.