The recent arrest of the Ambedkarite scholar and activist Anand Teltumbde has drawn criticism for the misuse of state power to target individuals critical of the ruling party at the Centre. Mr. Teltumbde has been charged under the Unlawful Activities (Prevention) Act for his alleged involvement in the Bhima Koregaon violence in 2018. Civil liberty activists see UAPA as a detriment to the human rights of citizens, for it gives unaccountable power to the government. UAPA, however, is by no means the only legislation that curtails civil liberties in the name of national security and maintenance of order. The Preventive Detention Act, 1950 is yet another piece of legislation that allows the state to arrest people on grounds of suspicion. The law was introduced by Sardar Patel to prevent the communist activists from fomenting revolution in India at the expense of the nascent democratic setup.
The law has been subsequently preserved by the governments that came to power. In a 1963 speech, liberal lawyer and politician Minoo Masani opposed the law on grounds of political misuse and curtailment of personal liberties. While recognising the communist threat to democracy, he also pointed out the threat to liberty that emanates from the law. The examples were the arrest of politicians working well within the democratic framework, including Shyama Prasad Mukherjee, Sheikh Abdullah, Tara Singh, and Ram Manohar Lohia. Masani also deplored the tendency of the government to cling to the law, instead of allowing it to expire.
Produced below is his full speech on preventive detention.
Let me say this that in so far as the maintenance of the climate of free discussion in this country is concerned, I would like to say that the Government and the Prime Minister who leads it have also played their part in maintaining this climate, in permitting freedom of discussion, which Governments in neighbouring countries have denied to their people. I would like to pay this tribute to the Prime Minister and the Government of India for having participated in this healthy democratic process. Why do I say so? This is very important. I think it is terribly important that whatever mistakes may be made, however frivolous and wrong Government policies may be, so long as there is freedom of discussion, so long as views can be expressed which are in complete defiance of the views of the Government, there is hope for the country, because it is only through exchange of ideas, clash of ideas, that the truth can be arrived at. This was said by a great revolutionary, Paine, many many years ago, when he said: “When opinions are free, either in matters of government or religion, truth will finally prevail.”
There are exceptions; there are blots on this record. I could have mentioned the arrest of three young patriotic young men in Delhi. I could have mentioned the long detention of George Fernandes, which has come to an end, I am glad to say. I could refer to the arrest of Mr. Maurya only the other day. But these, taken in perspective, are small blots. By and large, I would say that the Rules under the Emergency have been fairly and reasonably implemented.
It is particularly because I am proud of this record that I object to this Act, because this is one of the things about which we in India cannot be proud.
Let us consider the origins of this Act. Those origins were on Saturday, 25th February 1950. I remember the scene in this House, Sardar Vallabhbhai Patel, that great Deputy Prime Minister, whose absence all of us miss so much today, came and reported on that day that if this Bill was not passed by the same evening, 350 of the most dangerous communist detenus would be released by the Calcutta High Court on Monday morning. In a way, it was an outrageous demand to make of the House. But he gave a reason and that reason was that there was a clear and present danger to the security of the country. It was this that persuaded the House and many of us to vote for that measure.
I was then a back-bench Congress member and I voiced my concern and disquiet. I called the Bill a “hasty improvisation” which should be replaced at the earliest possible moment by “a more principled, well-conceived and well-thought outmeasure, which does not shirk the issue, which goes to the root of the mischief and which frankly takes its stand for the defence of democracy against totalitarian aggression from within or without.”
Sardar Patel’s reply was apologetic. He said he had passed two sleepless nights. He said in reply to my criticism – I am quoting him from the record –
“As has been pointed out by my friend, Shri Masani, the Bill has been brought in to meet an emergency. It requires to be closely examined, whether a better substitute of a more or less permanent nature based on scientific principles can be brought in or not.”
That pledge was given. We have been waiting for ten years for that promise to be carried out. Unfortunately, it has not been done, and this is becoming a permanent blot on our statute book.
Sir, as we have just learnt from the Home Minister, the Bill is not being used for the purpose for which it was originally passed. It is being used to deal with patriotic Indians who have nothing to do with the Communist Party. Let me mention a few of the names of those who have been detained under this Act, distinguished citizens of our country -Dr. Shyama Prasad Mookerjee, Master Tara Singh, Sheikh Mohammed Abdullah, Shri Nath Pai, Shri Trivedi, my neighbour who is not here at the moment, and Dr. Ram Manohar Lohia. So, from one specific purpose for which this Bill was introduced, we have gone on to arresting normal, patriotic Indians under this measure, and the result is that the individual liberties of every Indian are now endangered by this measure.
Even the much hated and vilified Rowlatt Act of 1919 made Preventive detention contingent upon a declaration of emergency on the part of the Government. Let me read the Act:
“If the Governor-General is satisfied that, in the whole or any part of British India, anarchial or revolutionary movements are being promoted, and that scheduled offences in connection with such movements are prevalent to such an extent that it is expedient in the interests of public safety, he may by notification in the Gazette of India, make a declaration to that effect …”
Look at the conditions referred to in that Act and you find a measure of liberalism, as compared to the Preventive Detention Act which we are asked to extend.
Now, I will be asked by the Minister what I have to say to meet this problem. I would refer him back to the origins of this Bill and the reasons given by his honourable predecessor. This Bill was a Bill meant to meet and combat the subversion and disruption of the Communists. Either it should perform that function or it should not function at all. Let the Act lapse and let the Minister and the Government bring forward concrete proposals, if they so desire, to face or deal with the activities of the Communist Party of India, for which this Bill was originally intended. Now, as a liberal democrat, I believe that such a measure should be resorted to, the outlawing of a political party, or banning a political party, only when there is a clear and present danger; not otherwise. The reason for it is this, that while, on the one side, the enemies of democracy like the Fascists and Communists, should not be allowed to destroy democracy by utilising it with their tongues in their cheek, on the other hand, it should not be resorted to in a way which is arbitrary, which will result in the negation of democracy. We have to balance between the security of a free democracy from attacks from the Communists and Fascists on the one hand, and on the other, we have to see that this does not become a bad habit which can be extended to others. Therefore, I say that the test must be that of the clear and present danger, as laid down by the Supreme Court of the United States.
Other States and other democracies have resorted to this principled way for dealing with subversion. West Germany, one of the leading countries of the world, has by Article 22 0f the Constitution laid down -I would like the Hon. Minister to study this:-
“Parties which, by reason of their aims or the behaviour of their adherents, seek to impair or destroy the free democratic basic order or to endanger the existence of the Federal Republic of Germany are unconstitutional. The Federal Constitutional Court shall decide on the question of unconstitutionality.”
Under this Article of the Constitution, a Bill was passed in the German Parliament, by which the Communist Party of Germany was outlawed and the case went to the Supreme Court. The Communist Party was heard and, after hearing the Communist Party, the Supreme Court of West Germany held that the Communist Party was outlawed properly under the Constitution.
The fact remains that today this Preventive Detention Act suffers from three major defects – three major evils. The first is that it is devious and arbitrary. It is not a straight-forward measure to deal with a straight-forward threat. It endangers the liberty of every decent democratic Indian, because a few people have to be dealt with. That is wrong. The Bill should be made to apply to categories of people described properly by their ideas or by their activities. It is devious. Therefore, it can be arbitrarily used.
Secondly, it is a bad precedent. When a man falls ill, he resorts to a drug. Many times, we know, the man does not have the capacity to throw off the drug, and the drug becomes a habit-forming tranquilliser or sedative. They become habit-forming. Ultimately, the man becomes so paralysed in his will that he feels he cannot go on without the drug. Now, this Preventive Detention Act has become a habit-forming drug to our present Government. I am sure they do not need it. I am sure they can maintain India on an even keel without this wretched Act. But they become like a man on crutches who does not dare to stand on his own legs at his command. So, like a cripple, they hobble along on this arbitrary measure contrary to the spirit of the law. This is the second reason why I oppose this Bill and my Party opposes this Bill.
Thirdly, this unfortunate measure prevents democrats from working together on an issue like this and it drive them, as it does today, into the opposite camps. I am sure the Home Minister will not deny the fact that the Praja Socialist Party or my Party or the Jan Sangh are as democratic in their processes and mentality as his own Party and yet we find ourselves today, unfortunately, on opposite sides. It also gives an opportunity to those who do not believe in freedom to masquerade as enemies of this Act and to criticise it with impunity. This is the contribution that this Act has made to confusing the minds of the people and to confusing the debate. It could have been a straight debate between democrats on one side and the believers in totalitarianism, like the Communist Party, on the other.
The original text of the speech could be accessed here.
IndianLiberals.in is an online library of all Indian liberal writings, lectures and other materials in English and other Indian regional languages. The material that has been collected so far contains liberal commentary dating from the early 19th century till the present. The portal helps preserve an often unknown but very rich Indian liberal tradition and explain the relevance of the writings in today’s context.
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The opinions expressed in this essay are those of the authors. They do not purport to reflect the opinions or views of CCS.