Editor,
Through the columns of your esteemed daily, I would like to bring forth some views on significant burning topic owing to The Arunachal Pradesh Unlawful Activities (Prevention) Act 2014. Many have castigated this Act and termed it draconian in nature. Some dragged its similarity pattern with the Unlawful Activities Prevention Act of 1976, which shared troubling history after its implementation. Many have questioned its draconian nature and justified with reasons. For instance, the APUAPA, 2014 infringes on the fundamental rights enshrined in the Constitution of India. Fundamental Right – Article 19 (1) (a) – provides liberty of freedom of speech and expression, and Article 22 provides the liberty to seek legal aid from legal practitioners for detention.
When this Act is in operation and the individual whosoever is detained in pursuance with this Act, he or she will not be given liberty to seek the service of legal practitioners. Section 11 (4) reads: “Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the advisory board.” Is this Act a replica of the Rowlatt Act, which was passed in 1919 by the imperial legislative council, which gave them the power to arrest any person without trial. To abolish this Act, Gandhi and other leaders called for a hartal (suspension of work) to show the Indians’ objection to this rule, called the Rowlat Satyagarha. Some sections of the society castigated this Act. Section 16, which reads: “No suit, prosecution or other legal proceedings shall lie against the state government or any officer of the state government or another person for anything done in good faith or intended to be done in good faith in pursuance of this Act.” So the question lies here, isn’t the court the right place to scrutinise and validate wrong or right when such contentious issues are on rise?
The fundamental rights under Article 32 gives the citizens the right to constitutional remedies. It gives the right to individual to move to the Supreme Court to seek justice when they feel that their right has been duly deprived. Article 32 also empowers the Supreme Court to issue writs. A writ that may be applicable is habeas corpus; it is a writ that is enforced to protect the fundamental right to liberty of an individual against unlawful detention. This writ commands a public official to deliver a detained person in front of the court and provide valid reasons for the detention.
According to thE APUAPA, 2014, any officer of the state government not below the rank of a secretary to the state government or a district magistrate holds the power to detain any individual if he is satisfied with respect to any person who is bootlegger, habitual depredator of environment, habitual drug offender, property grabber, dangerous person, unlawful person associated with unlawful activities. The Act also gives arbitrary power to advisory board after the expiry of 12 days detention, the advisory board enjoys its power upon the extension of detention. The most terrifying procedure is also on its flexibility. For instance, if detention order is issued against the person, and if the individual is absconding and concealing, then it automatically, the provision of Section 82, 83, 84 and 85 of the code of criminal procedure, 1973 prevails and applicable. The question here is on preventive detention, preventing individual from committing crime and creating unlawful activities. In this Act, gravity is heeded on possibilities rather than fact occurred. An effective Act, ordinance and orders are very much crucial to prevent individual from acting in any manner prejudicial to the security of state and maintenance of public order but at the same time the basic feature of the fundamental right should not be at stake.
In a democratic government, healthy democracy can prevail when an individual is given liberty of freedom of speech and expression. The bonafide citizens of the country should be given liberty to criticise the government’s incompetence and inefficiency if valid grounds are in hand, since the government is for the people, of the people, and by the people. The moment when journalists, legal practitioners, columnists, and social activists begin to feel the sense of apprehension to put out their views, democracy will take a different shape. So, before drawing conclusion on this APUAPA, 2014, many individuals seem to be blaming this Act to the present government for its operation and implementation, but one must also realise and question the government responsible behind its adoption and enactment. If a section of the society is criticising this Act, then what is the way forward? Are we left with judicial review? It refers to the power of the judiciary to review and determine the validity of a law or an order.
According to Article 13 (2), the union or the states shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall, to the extend, be void. In the case of Indira Gandhi vs Raj Narain Case 1975, the judicial review considered as a basic structure of the constitution. If any individual considers above mentioned Act an ultra vires and is inconsistent with basic features of the Indian Constitution, one may challenge in respective high courts under Article 226 of the Indian Constitution.
Jumge Pale,
Rajiv Gandhi University