Aishwarya Mohanty
The Government of Gujarat has, in the recent past, been enacting legislations with startling frequency in an attempt to make society safer and to deal with anti-social elements. In early September, an Ordinance was promulgated to widen the scope of the Gujarat Prevention of Anti-social Activities Act (PASA), 1985 (hereinafter “the PASA Act”). Gambling, cyber crimes, money lending offences and sexual offences were included as offences within the purview of the Act. This was subsequently passed in early October. The government of Gujarat also proposed the The Gujarat Goonda and Anti-social Activities (Prevention) Bill, 2020 (hereinafter “the Bill”) in late September. The Bill, which currently awaits Presidential assent, criminalises acts committed by “goondas” who are persons engaging in anti- social activities. Both instruments are draconian, show scant regard for safeguarding rights of accused persons and are generously endowed with problematic provisions which could have dangerous ramifications.
Despite the Supreme Court striking down the Central Provinces and Berar Goonda Act, 1946 in 1960, other state goonda legislations have been enacted and used across the country. Historically, these acts have been used as instruments of discrimination. The article argues that the widening of the scope of an instrument that has been arbitrarily used to preventively detain persons exacerbates its susceptibility for misuse by giving the executive greater opportunities to preventively detain offenders. The article also argues that the provisions in the Bill do not provide for minimum safeguards of the fair trial rights of accused persons, thereby increasing its propensity to be misused.
Goonda Acts as Tools of Oppression
Instances of misuse of goonda act have been aplenty, since the enactment of the first goonda legislation in Calcutta in 1923. Numerous instances have been documented where the goonda acts has been used to target certain unprivileged sections of the society or in an indiscriminate manner. Goonda acts, which are to be strictly used to detain habitual offenders, have been used to detain people with no criminal antecedents, including protestors. In the recent past, students participating in anti-CAA protests have also been booked under the goonda act. Examples of instances of blatant misuse of the goonda act should have prompted Gujarat legislators to adopt a cautious approach towards expanding the ambit of the existing legislation.
Preventive detention under the PASA Act
Lack of basic safeguards
The PASA Act is a rather dangerous tool in the hands of authorities as it allows for preventive detention of offenders upto a year for a plethora of offences. Section 3 vests powers in the State Government to pass orders to preventively detain any person who may act in any manner that is “prejudicial to the maintenance of public order.” A person is said to be acting prejudicial to the maintenance of public order when they “engage in or make preparations for engaging in activities whether as a bootlegger or common gambling house paper or and person or dangerous person or drug offender or immoral traffic offender or property grabber, which affect adversely or are likely to affect adversely the maintenance of public order,” which are offences defined under Section 2 of the Act.
Many acts similar to Gujarat’s PASA make the requirement of the offender being a habitual one explicit and lay down qualifications for who may be considered to be a habitual offender. For instance, under Rajasthan’s law, the word habitual “includes acts or omissions committed repeatedly, persistently and frequently having a thread of continuity stringing together similar repetitive acts or omission but shall not include isolated, individual and dissimilar acts or omissions.” The Supreme Court has interpreted the phrase “habitually commits” to mean a thread of continuous acts which must be repeated and persistent and not individual or isolated. The necessity of the offender being a habitual one acts as a safeguard to ensure that first time or isolated offenders are not arrested. The PASA Act has no such safeguards. Section 3 in the empowers the executive to detain offenders does not explicitly mention that the detenues must be “habitual” offenders, potentially allowing the executive to detain offenders with no prior criminal antecedents. Section 2, which lists certain offences for which offenders may be preventively detained, mentions the word “habitual” for a few such inclusions and not all. The absence of such minimal safeguards makes the scope of detention under the PASA Act wide while also making it an easy tool for misuse.
Test for determining necessity of a detention order
In Rekha v. State of Tamil Nadu, the Supreme Court discussed when a detention order may be passed. It held that orders for preventive detention would be deemed to be illegal if recourse to criminal proceedings would be sufficient to deal with the alleged acts. In case a person is ordinarily liable to be tried or is being tried under any other penal provision for committing the offence, but the penal statute would be unable to deal with the situation, only then could the statute permitting preventive detention be taken recourse to. In the aforesaid case, the detenue had been detained for selling expired medicines under fake labels. The Court held that the order of detention was illegal and that the offence could be tried under the Indian Penal Code and the Drugs and Cosmetics Act.
The observation of the Court in Rekha was reiterated in numerous decisions such as Munagala Yadamma v. State of Andhra Pradesh and Ors. in which a detention order for bootlegging under the Andhra Pradesh Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land-Grabbers Act, 1986 was quashed as the offence was also punishable under the A.P. Prohibition Act, 1995. The Court additionally held that this contravened the constitutional guarantees enshrined under Articles 19 and 21 of the Constitution. Similarly, in K. Nageswara Naidu v. Collector and District Magistrate, Kadappa, a detention order to stop the detenue from cutting and transporting red sandalwood trees was struck down as the offences were punishable under the Andhra Pradesh Forest Act and the Indian Penal Code.
In V. Shantha v. State of Telangana, the Court quashed the detention order of a man detained under the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 for selling seeds to farmers that did not yield crops and caused them loss. The acts of the detenue were punishable under the Indian Penal Code, 1860 and the Seeds Act, 1966. The Court relied on Rekha and Mungalal to quash the detention order. It also sharply criticised the gross use of statutory power by the authorities and held that “[T]he rhetorical incantation of the words “goonda” or “prejudicial to public order” cannot be sufficient justification to invoke the draconian powers of preventive detention.” In K. Suguna v. State of Telangana the Court while holding that the detention orders were unnecessary reasoned that though offences for which the accused had been charged were grave, they related to theft, which could be tried and punished under ordinary penal laws.
Most provisions under the PASA Act are punishable under other penal statutes. The offences for which detention orders could be passed that have been added by way of the amendment include offences already punishable under the Gujarat Prevention of Gambling Act, 1887, the Information Technology Act, 2000, the Gujarat Money Lenders Act, 2011, the Protection of Children from Sexual Offences Act, 2012 and the Indian Penal Code, 1860. Since persons committing these offences would ordinarily be tried under the regular penal provisions, the inclusion of these offences under the PASA Act is manifestly redundant.
Failure to adopt a cautious approach
Despite Courts restricting the applicability and advising States to be cautious of their use of such preventive detention laws, the PASA Act seems to have been used without abandon. Many decisions in which detentions were made under the PASA Act evidence the lack of thought on part of authorities in detaining persons under the PASA Act. In Abdul Razzak Nannekhan Pathan v. Police Commissioner, Ahmedabad and Anr., the Court criticised the failure on part of the detaining authority to apply their minds and held that detention was on vague and irrelevant grounds, which was violative of Article 22(5) of the Constitution. Detention orders have been vitiated by courts when the ground(s) of detention has been vague (see Prabhu Dayal Deora v. The District Magistrate, Kamrup). Likewise, the detention orders in Piyush Kantilal Mehta v. Commissioner of Police and Anr., Ahmedhussain Shaikhhussain @ Ahmed Kalio v. Commissioner of Police, Ahmedabad and Anr., and Ayub alias Pappukhan Nawabkhan Pathan v. S.N. Sinha and Anr. have also been held to be vague or irrelevant, and violative of Article 22(5).
Detention orders have even been passed when only FIRs have been registered, prompting the High Court of Gujarat on multiple occasions to quash the order and direct the detaining authority to disclose on oath as to whether they were aware of judgments passed by the Supreme Court pertaining to detention of persons under the PASA Act and whether there was subjective satisfaction available to them on the basis of such settled legal principles (see Samirkhan v. The Commissioner of Police, Shravadkar Prataprao Dashrathrao v. State of Gujarat, Devraj Gopal Gadhavi v. State of Gujarat, Rampal Sukhdev Verma v. Commissioner of Police, Saifuddin Abdul Hamind Mansuri v. State of Gujarat and Mohammed Samir v. Commissioner of Police). However, instead of being cautious in its approach to enact legislations allowing for preventive detention, the Gujarat Legislative Assembly passed the Amendment Act to include more offences under the PASA Act, thereby widening its scope and paving the way for more frequent use of the legislation.
The Gujarat Goonda Bill- Ushering in additional draconian provisions
Further, keeping in consonance with its motivations to make the society safer, the Legislative Assembly of Gujarat also proposed the The Gujarat Goonda and Anti-social Activities (Prevention) Bill, 2020 (hereinafter “the Bill”) in late September. The Bill criminalises acts committed by “goondas” who are persons engaging in anti- social activities. “Anti-social activity” is defined under Section 2(c) as acting in a manner that causes or is likely to cause “directly or indirectly, any feeling of insecurity, danger or fear among the general public or any section thereof, or any danger to the safety of individuals, safety of public, public health or the ecological system or any loss or damage to public exchequer or to any public or private property” or activities which already constitute offences under penal statutes, inter alia the Indian Penal Code, the Gujarat Prohibition Act, 1949 and the Narcotic Drugs and Psychotropic Substances Act, 1985. It also includes a host of other activities such as “creating panic, alarm or terror in public,” “inciting others to resort to violence to disturb communal harmony” and “indulging in crimes that impact security of [the] State, public order and even tempo of life.”
Violation of fair trial rights and principles of natural justice
Rights of an accused to a fair trial are protected by Articles 21 and 22 of the Constitution. An important tenet of the right to fair trial is the right to be heard. Courts have held on multiple occasions that failure to accord fair hearing or an opportunity to adduce evidence to the accused violates principles of natural justice as well as due process (see Kalyani Bhaskar v. M.S. Sampoornam). The Bill, which permits the Court to proceed with the trial and record evidence in the absence of the accused does not have safeguards in place to ensure that the fair trial rights of an accused are not contravened.
Dissonance with provisions of the Code of Criminal Procedure
Section 4(e) of the Bill empowers Courts to conduct trials in the absence of the accused “if it thinks fit” to do so. Trials in absentia are permissible under the law, but their permissibility is accompanied by provisos or caveats. By doing away with caveats that act as safeguards, the Bill is incongruous with similar provisions under the Code of Criminal Procedure. Provisions in the Cr.P.C. such as Section 205, Section 317, Section 273 and Section 299 allow for the trial to proceed in the absence of the accused under certain specific conditions which ensure that the rights and interests of the accused are protected. The wordings of Section 4(e) seem to envisage a scenario where the Courts would conduct the trial in the absence of the accused despite there being no plea to that effect by the accused. There is no specific requirement for the presence of the pleader either and one is left to guess whether the omission is deliberate or a consequence of mere oversight. Though the Section mandates that the reasons for permitting the trial in the absence of the accused be recorded and that witnesses may be called for cross examination, it by no means ensures the protection of the fair trial rights of an accused. Further, permitting examination in chief in the absence of the accused, with no recourse thereafter, permits the State to lead evidence unrestricted and deprives the accused from raising objections to the nature of evidence brought on record. Such unfettered discretion has the potential to allow gross violations of the rights of the accused.
Other concerning provisions
A glance at the Bill shows that it has been recklessly drafted and is replete with problematic provisions. Section 3, which deals with penalties prescribes a minimum punishment of imprisonment upto seven years and a maximum punishment of ten. In addition, fines not less than Rs. 50,000 may also be imposed. Offences under the Bill are of varying degrees of seriousness and attract varying degrees of penalties in their parent statutes. For instance, offences punishable under section 4 of the Gujarat Prevention of Gambling Act, 1887 are punishable with imprisonment which may be upto a few months, coupled with fines. Similar offences under the Indian Penal Code may be punished with life imprisonment. These offences, as well as offences such as “preventing or disturbing the smooth running by any person of his lawful business, profession, trade or employment or any other lawful activity connected therewith” will attract a minimum punishment of seven years of imprisonment.
Conclusion
The Goonda Act and PASA Bill, that allow for blatant disregard of fair trial rights of the accused, have the potential to be grossly misused. The Supreme Court has emphasised on the need for exercising caution while issuing detention orders. It has also held that preventive detention orders could not be a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes. However, instances of the police misusing various goonda laws to detain offenders, usually to bypass the investigation process are not unheard of. Amid such concerns, the Bill was passed in the Legislative Assembly despite dissent from the opposition. Fears have been expressed that the legislation may be used to curb voices of dissent; fears that are not unfounded. Notwithstanding challenges to the statute before Courts, it remains to be seen whether the Act will be used as an Act to prevent and cope with goonda and anti-social activities as intended by the drafters or if it will be used as a tool of oppression.
Aishwarya Mohanty is a part of the Torture Team at Project 39A.
