Explained: PASA Act in Lakshadweep

Praful Patel, administrator of Lakshadweep Union Territory is continuously in news since the starting of the year. He has drafted few bills against which people have started campaigning namely `Save Lakshadweep`. The bills have also started controversies all around the country for reasons explained in detail later on. Prevention of Anti-Social Activities Act, 2021 is one of those bills that was drafted by hon`ble administrator Mr. Patel. Is the act really arbitrary in nature or just a myth? Will it hamper and interfere the life of common people of the Islands?

DETAILS OF THE ICELAND

  • Lakshadweep with a deep-rooted history and culture like other states is a Union Territory which was formed in the year 1956.
  •  Lakshadweep is known as the smallest UT of India with a total area of 32 square kilometer and a population of 65 thousand.
  •  Literacy rate of the UT is 91.85%.
  • The archipelago has the lowest crime rate among all the states and Union Territory in India.
  •  In 2019, Lakshadweep recorded zero cases of murder, kidnapping, robbery, dacoity, rape.
  • The number of total violent crimes reported in the Union Territory in the year 2019, 2018, 2017 respectively are 16,6,8.
  • Under Narcotic Drugs and Psychotropic Substances Act, 1985 only 4 cases were reported for the possession of drugs for personal uses whereas zero cases have been recorded for trafficking of drugs. 9 cases were recorded for violating prohibition. Total 13 cases were reported for liquor and narcotic drug related offences.

About the Administrator

As there is a saying that to know the law, we have to know the law maker and people associated with it. Behind the controversial act, the most important man is the hon`ble administrator. Praful Patel who began his career in politics winning Gujrat Legislative Assembly in the year 2007.In 2010, he became Home Minister of Gujrat under Chief Minister Narendra Modi. Patel was closely connected with then Chief Minister that helped him in getting the ministerial position. Later in 2020, he was appointed as the first administrator of Dadra and Nagar Haveli and Daman and Diu. In December 2020, he became administrator of Lakshadweep breaking the years old tradition of appointing an IAS/IPS as administrator.  [ https://en.wikipedia.org/wiki/Praful_Khoda_Patel ]

WHAT IS PASA ACT

Prevention of Anti-Social Activities Act, 2021[ PASA Act], the draft of the act was brought in by the Hon`ble administrator of Lakshadweep Mr. Praful Parel. The bill was promulgated by the President of India exercising the power given to him under Article 240 of the Constitution.  The act has created many controversies since it came into public notice. Under the act, one can be arrested and detained from six months up to one year without any public disclosure.

SALIENT FEATURES OF THE ACT

  1. PASA Act, is to be provide for preventive detention of bootleggers, dangerous persons, drug offenders, immoral traffic offenders, property grabbers, cyber offenders, money lending offenders, cruel offenders, depredators of environment and sexual offenders for preventing their anti-social and dangerous activities prejudicial to the maintenance of public order.
  2. The act defines the terms `administrator`, `bootleggers`, `depredator of environment` etc. in section 2.
  3. If the administrator is satisfied that a person is dangerous to the society in respect of point number (I), he may order to detain the said person under section 3.
  4. The detention order may be followed as per the execution of arrest of warrant under the Code of Criminal Procedure, 1973. [Section 4 PASA]
  5. All offences and willful violation of an order made under this act shall be cognizable and non-bailable although there might be another provision for the same under The Code of Criminal Procedure, 1973. [Section 20 PASA]
  6. A cognizable offence is to be an offence under which a person can be arrested by a police officer without any warrant and to start the investigation, permission of court is not needed. [Section 2(c) of Cr. P.C.
  7. Non-bailable offences are under which a person does not have a right to be released on bail.
  8. It`s the administrator`s discretionary power to make order related to the place, maintenance, discipline, and punishment for breaching the detention. If one person is to be transfer from one place to another, that is also up to the administrator to decide.
  9. If a person is detained under two or more grounds as per section 3 of the act, the order of detention shall not be deemed to be invalid or inoperative just because one or more of the grounds are (a) Vague (b) non-existent (c) non relevant (d) not connected with the person or (e) any other reason. [Section 6 PASA]
  10. If it is to be believed that a person against whom a detention order has been made has absconded or hiding himself so that the order can`t be executed, then section 82-86(both inclusive) of Code of Criminal Procedure, 1973 will apply. [Section 7 PASA]
    1. Section 82 of the Cr. P.C. talks about the procedure of publication of proclamation after the person to be detained has absconded or concealing himself.
      1. Section 83, 84 delas with attachment of property belonging to the proclaimed person.
      1. The provision of Section 85 is about release, sale and restoration of the attached property.
      1. Under section 86 a person whose property is attached, was refused to be delivered the property or the property is going through the process of selling, then the said person can appeal to the court.
  11. If someone conceals a person knowing the fact that a detention order has been made against that person, he shall be imprisoned for minimum period of three months which may be extended up to one year with fine mentioned in the act in section 17.
  12. If a person is detained, within seven days of his detention he shall be communicated with the grounds of detention. Provided that if disclosing of the grounds is against public interest, the authority may not disclose. [Section 8 PASA]
  13. A person after being detained shall be placed before the advisory board within three weeks form the date of detention.
  14. The advisory board is to be chaired by a person who is or has been a judge of High Court, the board is to constituted by the administrator according to the necessity.
  15. The detenu is not allowed to be presented by a legal practitioner in any case connected with the advisory board.
  16. A person can be detained for maximum period of one year. [Section 13 PASA]
  17. Authority is free to make another detention order for the same person under section 15 once the earlier detention order is expired.
  18. The administrator can modify, ends the detention order at any time.
  19. A detenu may be released for a specific period with conditions attached or without any condition by the administrator.
  20. Administrator or any person who has done something in pursuance of the PASA act in good faith shall not be subject to any suit, proceeding or other legal action for the same.

STATES WITH SIMILAR ACTS

In recent times, Bihar Assembly passed the Bihar Special Armed Police Bill, 2021 under which special armed police officers are given power to carry out searches and arrest without warrant. Court can`t take cognizance without prior permission of the government by police officers. The police officers have been given a lot of powers under this bill. The government is of opinion that the bill is being passed to enhance the security of the state and to ensure that no serious offenders are subjected to threat to the society. Bihar government in their press release made on 25/03/2021 stated that it was done to maintain public order, maintain extremism and security of some specific establishment. A lot of controversies started since the passing of the bill. According to the opposition, it`s the starting of the ruling party`s dictatorship and they have termed the bill as `draconian and unconstitutional`.

Gujrat Assembly passed Gujrat Goonda and Anti-Social Activities (Prevention) Bill, 2020 in last September. This act was proposed to ensure safety of innocent people from serious offenders. The grounds of arrest under this act includes serious offences like bootlegging, trafficking and also `love jihad`, rioting, damaging public property etc.  The main motive of the government is to make the state crime free. To register a crime under this act, prior permission of police officers is necessary. Under this act, a chargesheet can be filed within 90 days which was initially 60 days. The police are authorized to seek remand for a period of 30 days in place of prior provision of 15 days remand period. [https://www.thehindu.com/news/national/other-states/gujarat-brings-a-new-law-to-deal-with-anti-social-elements-in-stringent-manner/article32681301.ece ]

In a case related to PASA Act of 1985, a petition was filed against the detention order made by the then police commissioner in Rajkot city. The detainer was detained as a bootlegger. For reference purpose, a pending criminal case against the detenu was added. The petitioner`s advocated claimed that there was no proof of the detainer being a `bootlegger`. The detaining authority only had a FIR against the detenu. The court noticed that other than the FIR, there was no concrete proof that the detenu disturbs public peace and security. Hence, the court allowed the petition. Also, the detention order was quashed and set aside. [1]

A study by Indian Express has shown how National Security Act, 1980 is being used in Uttar Pradesh in recent times. Between January, 2018 and December, 2020, there was a case of twelve detention although court issued bail. UP, with NDA act, has also Controls of Goonda Act, 1970. Under the Goondas Act, the District Magistrate enjoys discretionary power to tender the detention order.

Under the Jammu Kashmir Public Safety Act, 1978, the maximum period of punishment is two years. PSA Act is to prevent someone from doing something which can be against the security of the state and maintenance of public order.  

Recently, the constitutional validity of the maximum period of preventive detention under PSA Act of Jammu Kashmir was challenged. A PIL was filed in the High Court of Jammu and Kashmir for the same. As Article 370 was abrogated, now the Entry 9 of the Union List and the Entry 3 of the Concurrent list of the Constitution shall apply. The period of detention is up to two years under the PSA Act, whereas under National Security Act, the maximum period of punishment is one year. These two are contrary to each other. The Bench have sought the response of the Union Territory of Jammu and Kashmir. [https://www.indialegallive.com/constitutional-law-news/courts-news/after-losing-statehood-preventive-detention-in-jammu-and-kashmir-comes-under-nsa-provisions-not-psa-says-pil-in-high-court/ ]

AGRUMENTS

Where some people including the government supports PASA Act, few doesn`t. We`ll know the story of the both sides. What does the people have to say who supports the act? And also what about the persons who doesn`t support the act? Let`s find out.

ARGUMENTS IN FAVOUR OF THE PASA ACT

Why Anti-Social Activities act is necessary? The state authority implements acts with some motive. Let us look into few of the points as to why such acts are necessary for the common good of the society and its people.

  • As Lakshadweep is soon to be a tourist hub, it`s absolutely necessary to make sure that the locality is safe for tourists. That way, the tourism will flourish.
  • The islands are on international sea route, so this is a question of national security.
  • According to Lakshadweep`s collector S. Asker Ali, in march this year 300 kg of heroine, 5 AK-47 rifles and 1000 live round were seized from the archipelago.
  • Smuggling of marijuana, liquor, and many POCSO Act have been reported recently.
  • To prevent a person from doing acts can be dangerous for the society.
  • If there arises any reasonable suspicion that a crime is going to happen, the law of anti-social activities gives power to the police officers to prevent such crime from happening by arresting the suspicious person.
  • The most common argument in favour of this act is to protect the innocent from any upcoming crime.
  • To safeguard the public interest, social peace and security.
  • To make the state crime-free.
  • To safeguard public property.  [https://theprint.in/india/these-are-the-3-lakshadweep-draft-laws-that-have-triggered-controversy/667336/ ]

ARGUMENTS IN AGAINSTOF THE PASA ACT

The locals as well the opposition including Congress, C.P.I(M) are protesting against the new regulation of the PASA. The grounds of protest are –

  • One of the vital grounds is the low crime rate of the UT. Lakshadweep has the lowest crime rate in India, as discussed earlier.
  • Even the heinous crime rate is very low in Lakshadweep, also the low crime rate is continuing for years. Suddenly, the crime will surge excessively, that`s difficult.
  • Passing an act on basis of future possibilities is ridiculous.
  • There has no concrete proof that the act can make a state crime free.
  • So, the points of safety, peace etc. is based on assumption.
  • As, Lakshadweep also drafted another two bills, people may protest. Implementing PASA, the authority may detain anyone as it pleases to not let anyone protest.
  • PASA gives arbitrary power to the administration, they may use it according their wish. This will lead to innocent people being detained without proper ground.
  • Once a person is detained, we all know the process of releasing is very lengthy and time taking.
  • The act violates constitutional rights of the citizen. It was passed to prevent the locals from protesting against CAA (Citizenship Amendment Act), NRC (National Register of Citizen).
  • The advisory board which would review the detention will also be made by the administrator himself who gives the detention order.
  • After being detained one can`t take help from legal practitioners is also very vague clause.

DETAILED LOOK

Now that we know all the small details about the act, we should try to look into the broader aspect of the act. A petition was filed by Congress leader K.P Noushad Ali in the High Court of Kerala. The division bench consisting Justice K Vinod Chandran and a Justice MR Anitha refused to stay the implementation of the PASA regulation. Also, the bench asked the administrative authority to respond within two weeks.[https://timesofindia.indiatimes.com/india/hc-wont-stay-new-draft-rules-in-lakshadweep/articleshow/83054021.cms ]

Constitutional Validity

Under Article 240 of Indian Constitution, President have the power to make `regulations for the peace, progress and good environment` of the Union Territory of Lakshadweep.  The power of President under Article 240 s very vast. So, the promulgation of the regulation by the president is constitutionally valid.

Further, under Article 21, every person is authorized to enjoy his life and personal liberty. This right is not absolute as it may be controlled with procedure established by law. In many famous cases related to the interpretation of Article 21, it was decided that the procedure should be `just and fair` and not `arbitrary, unreasonable`. Moreover, the just and fair clause is also to be decided based on facts and circumstances of the case. No absolute hard and fast rule is there regarding the applicability of Article 21.

Remedies

  • Once a person is detained, the only remedy that he gets under PASA regulation is the reviewing of the detention order by the advisory board. If the advisory board thinks that the detention order is fair, the order will be valid.
  • Article 22 says that no person shall be detained for more than three months. But with the permission of the advisory board before the expiration of such period is enough to upheld the detention order.
  • Writ of Habeas Corpus-Article 226

The meaning of the writ is `to have a body of`. If a person is believed to be unlawfully detained or imprisoned, the court will direct to bring the detained person in court of law to examine the legality of his detention. But this writ is also subject to some restriction. Under PASA Act, a detenu is not suppose to seek help from any legal practitioners. As Court receives a lot of writ applications including poorly drafted writ application, court doesn`t always proceed with the application.  [https://www.findlaw.com/criminal/criminal-procedure/writ-of-  habeas-corpus.html]

In the case of Khimji Raja Harijan v/s District Magistrate and ors,[2] a petition was filed praying the writ of Habeas Corpus. In this case, the administrative authority rightly justified and proved that the detenu was a bootlegger and that is clear from his activities. The court dismissed the petition.

SUGGETION AND CONCLUSION

 The archipelago is known as `islands of peace` for definite reasons. Implementing such a strict law is not appropriate. The locals are also against the law as they are protested for the same. The time is very difficult and tough for all of us. We as a society need to help each other to overcome this situation. Passing and implementing such law going against the locals, is not the absolute necessity. According to few people, it has political agenda as the administrator has a history with BJP. We should try not to add politics and communal colors to the life of those innocent people. The cause being Lakshadweep isn`t the only state/UT with such act. The law can be implemented with few basic amendments. We should also keep in mind that to prevent crime, we should not let an innocent suffer. Whatever be the end result, we want our Lakshadweep to stay the same -`islands of peace`. 


Author: Sujata Biswas from Calcutta University.


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