Problematising PASA

Sanat Narayan

Introduction

With a proposal to extend its application to Delhi, the Gujarat Prevention of Anti-Social Activities Act, 1986 (PASA) has drawn renewed public interest. The Act provides for preventive detention on a number of grounds, with provisions for the detention of bootleggers, drug offenders, dangerous people, and other categories of people whose actions may potentially threaten public order. A number of Indian legislations presently allow for preventive detention; infamous statutes, including the Unlawful Activities (Prevention) Act (UAPA), are procedurally similar to the PASA and also provide for similar detention periods as under the PASA, albeit on different grounds.

Debates on the constitutionality or even the desirability of preventive detention in an independent India have persisted for well over half a century now. Seminal cases such as AK Gopalan have inspired many scholars to beg the question of the necessity of conferring such powers, or at the very least, on the scope of the powers conferred. While some have questioned the constitutionality, others have raised questions about the desirability of laws prescribing preventive detention in a democratic society. These questions are still pertinent and worth bearing in mind in a discussion of any act or rule that allows the state to detain someone preventively. While important, they merit a separate discussion in relation to the PASA. Assuming that preventive detention is a necessary state function, this Act still presents a unique set of problems that this article seeks to discuss.

This article seeks to highlight two critical problems with the PASA. First, in relation to the conception of a ‘dangerous person’, and the poor understanding of this concept serving as a catchall clause; and second, the lack of specific grounds for authorities to act on and the problems that this can present in practice.

Understanding dangerousness

An initial problem with the Act is in its definition of a ‘dangerous person’, and the ambiguity behind qualifying an individual as said dangerous person. The poor definition leaves authorities with a lack of clear guidance in making a determination of who such person might be, opening the door for misuse of the Act and often leading to detention in inappropriate situations based on dubious understandings of what a dangerous person is. 

 The Act provides for the preventive detention of bootleggers, common gaming house keepers, cruel persons, dangerous persons, drug offenders, immoral traffic offenders, and property grabbers, where there is an apprehension that people within these categories may commit an offence. Understanding the meaning of some of these categories of offenders is seemingly self-evident. Take bootleggers or property grabbers for example, where the actions that qualify an individual as such can be clearly understood. Most terms including but not limited to property grabbers, drug offenders etc. are clearly defined by the Act, and individuals are identified within these categories on the basis of specific actions carried out by them. For most categories of offenders, understanding who may be caught out by the Act’s provisions and when the act is most likely to take effect is clear, save any misuse. The state interest in preventing many of these offences from taking place in the interest of public order can be identified as well, and authorities may have a well-founded interest to act before an offence is committed. 

The definition of a dangerous person, however, is not as clear as definitions of other categories, and the Act can get particularly murky as a consequence. A ‘dangerous person’ under the act is defined under Section 2(c) as “a person who, by himself or as a member of a gang, habitually commits, attempts to commit, or abets the commission of the offenses punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offenses punishable under Chapter V of the Arms Act,” with the chapters of the IPC dealing with offenses against the human body and offenses against property, respectively. 

First, the key qualifier for detaining authorities to exercise their power is the habitual nature of the offenses, and the courts have laid emphasis on only habitual offenders being detained under the act. The very concept of a “habitual” offender as under the act is problematic as it is vague, and the idea of one being habituated to crime is largely a colonial import. The manner in which one is to arrive at the conclusion that an individual has been habitually committing crimes has intentionally been left vague by the act, and there is no guidance as to the frequency with which offences must be committed to make them “habitual.” The Act initially stated that the acts in question must have been committed “during a period of three successive years,” however this limitation was conspicuously and inexplicably omitted from the Section via an amendment to the Act. This gives authorities passing detention orders the power to subjectively determine whether an individual is habituated to crime in the absence of any statutory guidance or limitation. Furthermore, the concept of one being a “habitual” offender is not unique to the PASA, with colonial acts like the infamous Criminal Tribes Act 1871 relying on the belief that some groups of people are more inclined to commit crimes, warranting greater suspicion of them. While the PASA does not explicitly lay suspicion on particular identities and is not a colonial Act itself, it is still built upon the colonial logic of certain people being criminals by habit. 

Second, the Act allows for the State Government to delegate the power to pass detention orders to either district magistrates or commissioners of police – in turn delegating the power to make determinations of dangerousness. In the absence of clear definitions or definitive guidelines, grounds for determinations of dangerousness and subsequent detentions are subjective and broadly open ended. While the state government must ratify specific detention orders, in effect these authorities may exercise their delegated authority indefinitely – as the delegation of these powers by the state government is not necessarily subject to a periodic review. With a vague understanding of a “dangerous person,” these broad powers allow for delegated authorities to make subjective determinations on what constitutes the appropriate grounds for an individual to be considered dangerous and detenus can often be held for weeks without any review of the detention order. It is also extremely important to mention that studies have indicated that minorities are treated with greater suspicion as a result of police biases. The wide power conferred by the Act can intersect with the pre-existing biases of delegated authorities on the propensity of certain groups committing crimes, leading to them being disproportionately caught out by its vague provisions. 

Judicial pronouncements have attempted to clarify some questions, but still leave the bulk of the determination process subjective and open ended. In the case of Mustakmiya Jabbarmiya Shaikh v. MM Mehta (1995), where the actions of the detenu were challenged as not sufficient in terms of gravity or in proximity to one another to deem him a threat to public order, the Supreme Court clarified that

“The provisions of the Act are intended to deal with habitual criminals, dangerous, and desperate outlaws who are so hardened and incorrigible that the ordinary provisions of the penal laws and the mortal fear of punishment for crime are not sufficient deterrents for them.”

In the absence of clear and concrete guidelines, how one is to come to the opinion that an individual is “incorrigible” to the point of detaining them preventively is largely left unclear and leaves authorities with near absolute discretion in determining dangerousness. While the courts have analysed antecedents of individuals that may be taken into consideration while determining their habituation to crime, the same has largely been done on a case by case basis. Accordingly, many important factors to be considered before determining dangerousness have not been sufficiently dealt with by the courts – including the specific nature crimes to be considered, the frequency with which they have been committed, and the correlation of these factors with the potential for a future crime to be committed – all of which are still largely left to the discretion of detaining authorities. This lack of clarity has lead to an inordinate number of unwarranted detentions, with the courts stepping in to overturn a majority of PASA cases as a result of said erroneous or suspect detention orders. However, the Act is structured in such a manner that these orders are often subject to any sort of review only after several weeks, with Section 12 of the Act giving an advisory board up to seven weeks to review orders, which are often based on dubious understandings of dangerousness. 

The courts have, however, given us some clarity as to the type of cases that may be considered in determining an individual’s habituation to crime. For instance, it is now a settled point of law that criminal cases where the concerned individual has been acquitted cannot be considered in determining their habituation to crime and accordingly classifying them as dangerous. While this has restricted the type of cases that authorities may rely on in classifying an individual as dangerous, the cases that can still be relied on pose a number of problems in relation an individual’s liberties. 

Cases that have been registered and are still pending may be considered by authorities, as well as alleged crimes that may disrupt public order that have not been subject to any criminal proceedings at all. For example, one case saw the determination being made by the authorities on the basis of statements of an eyewitness to alleged crimes, despite only one criminal case being registered against the detenu. In the latter class of cases, an individual who has allegedly been committing crimes habitually may be detained under the provisions of the PASA due to offenses that they have not been otherwise arrested and produced before a magistrate for. This effectively allows for detention on the basis of crimes not tried, which runs counter to the ordinary scheme of Article 22 of the Constitution. The constitutional provision demanding that an individual be produced before a magistrate within 24 hours of their arrest does not apply to PASA cases, as Article 22(3) explicitly states that the rights under the Article do not extend to preventive detention statutes. And where the individual has not been arrested for the offenses that determine their dangerousness, detaining them preventively because of these alleged offenses opens the door to undue exploitation and widens the scope for misuse of the law. It is important to question the purposes that the act serves in its effect, as some actions carried out under it often seem to primarily serve a punitive object. This is especially problematic as the purpose of the act is unequivocally for the prevention of crime and not its punishment.

Crimes that an individual has completed a sentence for may also be considered by authorities in determining their dangerousness. Where the authorities determine that an individual is dangerous because of past actions that they have already served a sentence for, questions around the innate nature of criminality and reformation arise. As scholars Lucia Zedner and Andrew Ashworth put it while discussing preventive detention based on past convictions, “to detain beyond tariff inflicts disproportionate restrictions on liberty.” In other words, to detain someone based on a crime they have already served a sentence for is to extend their sentence and unduly restrict their liberty. In the context of the PASA, to determine dangerousness and accordingly detain someone based on their past convictions is to effectively deprive them of their liberty for a period longer than for which they have been sentenced. Moreover, the very act of construing a person as a dangerous person requires us to re-examine the labelling of the individual based on their criminal past. Whether this labelling can be seen as just and fair labelling is important to consider, given that the person has completed their sentence. The Act and this definition therein allow for a perpetual suspicion to be cast upon an individual. Given that such suspicion can be disproportional and unwarranted, when this suspicion must expire demands re-examination as well. In light of this and given the fact that the authorities often act based on past conduct, when and how the authorities may reasonably come to believe that there is a threat to public order that needs pre-emptive action is unclear under the act.

Towards a standard of apprehension

The PASA presents a second problem through the absence of any clarity on when authorities may reasonably come under apprehension that an individual may commit actions that disrupt public order. The Act says little in the form of when an authority may assume a risk to public order, and examples from judgements can help point out the gaps that exist in the current standard of apprehension. 

The lack of clarity as to when one may assume a threat to public order often gives rise to bizarre cases, including cases where the authorities sought to detain a person still in detention. In the case of Abdul Razak Abdul Wahab Sheikh v. SN Sinha, Commissioner of Police, while the petitioner was in judicial custody in another case, the detaining authority was under the impression that the petitioner was to be granted bail. Acting on this assumption, while the petitioner was still in custody at Sabarmati jail, the detaining authorities pre-emptively passed a detention order under the powers conferred to them by PASA, claiming that the same was for the protection of public order. The Supreme Court, in a scathing judgment, made it clear that this action was patently illegal, and the fact that there was no chance of the detenu being released on bail should have been considered by the authorities. Rightfully so, the courts addressed the matter and made it clear that the apprehension of bail is an insufficient ground for the passage of a preventive detention order. Yet at the same time, especially in the context of dangerous persons, there is no clarity as to when the authorities may apprehend a threat to public order so cogent as to invoke the PASA.

Presently, the only standard of apprehension is that of a threat of disruption to public order, and this has been clarified to mean disruptions to the tempo of daily life and not just mere law and order disruptions. Yet, there is an absence of a clearly demarcated threshold that must be met before action may be taken. In Piyush Kantilal Mehta v. Commissioner of Police, the Supreme Court held that the mere identification of an individual as falling under one of the categories enumerated under the act is not sufficient to detain them unless their actions “affect or are likely to affect public order.” However, determining when the condition precedent for threats to public order has been met is extremely uncertain under the current law. And where a dangerous person is concerned, determinations of past actions corresponding to future threats are vague and give authorities extremely wide powers to apprehend a threat to public order.

The standard by which the detaining authorities were allowed to detain an individual, as per the Supreme Court in Amanulla Khan Kudeatallah Khan Pathan v. State of Gujarat, was that the detenu satisfied the criteria of being a habitual offender and the facts satisfied the court that the activities were likely to continue in the future, disrupting public order in the process. In some cases, such as this one, there may be reason to believe that the activities of the detenus would not cease, failing the preventive action. Cases like this do aid in the removal of some ambiguity in understanding why the actions were taken and this may even be justified where the authorities demonstrate that a threat was clearly present. Yet, this is still a case by case determination and there is a marked absence of a clear enough threshold, as authorities aren’t bound to a specific standard or a set of applicable tests in order to determine the presence of a future threat.

In this light, it may be worth looking into the standard for the exercise of the power to preventively detain in other jurisdictions. As opposed to the vague threat to public order and the problematic reliance on past conduct, examples from other jurisdictions rely on clear evidence of a future offence or risks to public safety as standards for apprehending an offence. In the European Union, the European Commission of Human Rights has made it clear that the general idea of prevention of a crime is insufficient to preventively detain someone, and there must be some element of the detenu’s action indicating that they are about to perpetrate a crime that makes it necessary for authorities to act, as opposed to a general suspicion or fear of further crimes. The threshold for action here is effectively that of necessity to prevent crime as opposed to suspicion based on past actions, no matter how well founded or well-intentioned said apprehension may be. As opposed to the standard under the PASA, the European standard, as established through several judgments of the European Court of Human Rights, places a heavier burden on authorities, forcing them to indicate a necessity to act based on clear steps taken by the detenu toward a crime. The PASA, by contrast, effectively allows for authorities to construe the potential of a crime based on prior actions. While some scholarship does indicate an increased risk for reoffending based on prior conduct, the idea of a necessary risk of recidivism following release is not as clear cut as one may expect, and is reliant on a number of other factors, rendering any presumption in favour of preventive detention on these grounds tenuous at best.

One may also look at the United States, where the landmark case on the constitutionality of preventive detention was United States v. Salerno, wherein it was held that preventive detention could be justified where the release of a detainee would pose some threat to the safety of the community. Here, the case arose as a question of whether the detenu’s conduct proved that they were dangerous to the extent that their release would pose a threat to the safety of the community at large. This intersects with prior conduct, akin to the idea of a habitual offender under the PASA, but where the Bail Reform Act which was brought into question in Salerno, differs from the PASA is that the conduct relied on to justify an apprehension must constitute a “serious offense.” Under the PASA, the chapters of the IPC included do not necessarily qualify the conduct taken into account as serious and include a whole host of offenses, some of which may be far less serious than others. Further, the standard in the US was that of safety, not the ill-defined notion of public order that has come to mean a disruption to the tempo of daily life, which in itself is not sufficient to guide non-judicial authorities to preventively detain someone. Where Salerno also relied on ideas of dangerousness, the idea of an individual’s conduct being dangerous in the form of a serious crime is clearer than the risk of public order being disrupted under PASA and can serve as an example of a stricter threshold, even if the risk of misuse persists.

Conclusion

The Prevention of Anti-Social Activities Act has a number of problems, and this article has highlighted only a couple of them. With a disproportionate number of PASA cases heard before the courts being overturned, the application of the act in practice merits questioning. The act is unique in its vague definitions and the manner in which it understands criminality, perpetuating the controversial idea of a criminal holding onto their criminal status in perpetuity. In light of the vague understanding of “dangerousness” as a legal category, the grounds on which the police or other authorities duly empowered can determine a risk to public order that warrants a preventive detention order be passed are also extremely problematic, with the bar to act being extremely low, if present at all. Preventive detention as a whole demands re-examination, but in the context of the PASA in particular, defining dangerousness and the manner in which authorities may apprehend a dangerous act need to be rethought.

Sanat Narayan is an incoming LLM candidate at the University of Cambridge.

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