Indian police often use illegal detentions to stifle dissent. Could a Delhi HC order change that?

On the morning of June 30, officials from the Model Town Police Station in Delhi raided a private house. Their target: Abhigyan, a student of Delhi University and the city president of the left-wing All India Students’ Association. The house in which he was staying belonged to a friend. The police detained Abhigyan (who uses only one name) in the flat from 9 am till 2 pm, not allowing him to meet any visitors.

Abhigyan was told that he had been detained because Prime Minister Narendra Modi was attending a ceremony to celebrate Delhi University’s centenary that day. Abhigyan was not allowed to leave the house even though he insisted that he had not planned to participate in any protests against Modi’s attendance.

Through this time, the police failed to show him an order authorising his detention.

Illegal detentions for political reasons are commonly used by police forces across India. However, a Delhi High Court order on July 12 arising from Abhigyan’s detention has, possibly for the first time, brought judicial scrutiny to this malpractice.

Approaching the court

Earlier this month, Abhigyan filed a petition in the Delhi High Court demanding that his forcible detention by the police be declared illegal and that the court stop the practice of arbitrary, illegal detentions.

In response, the Delhi Police admitted that there no authority had issued an order to detain Abhigyan.

In light of this, the Delhi High Court had on July 12 allowed Abhigyan’s legal counsel to approach the Station House Officer of the Model Town Police Station to file a complaint against the officials who had detained Abhigyan without any authorisation.

Pronouncing the order, Justice Siddharth Mridul had remarked that “the police does not have immunity for their action”.

Later that day, the High Court’s Registrar General forwarded the court’s order to the Station House Officer of the Model Town Police Station for “for immediate compliance/necessary action”.

This was perhaps the first recent instance of accountability being imposed on the police for using a frequently deployed, albeit unconstitutional, weapon in its arsenal.

On Monday afternoon, Abhigyan filed the complaint with the Station House Officer of the Model Town Police Station.

An unlawful detention

Such unauthorised detentions by the police violate Section 339 of the Indian Penal Code (which concerns wrong restraint) and Section 340 (which relates to wrongful confinement), said advocate Shahrukh Alam, who represented Abhigyan at the High Court. The offence of wrongful restraint carries a maximum sentence of one month, and that for wrongful confinement is one year.

Advocate Archit Krishna, who also represented Abhigyan at the High Court, pointed out that “preventive detention for a few hours is not contemplated under any of the preventive detention statutes”, which require an order authorising preventive detention.

Subsequently, the safeguards of Article 22 of the Constitution (which relates to protection against arrest and detention in certain cases) come into play: the detainee must be informed of the grounds of their detention and be afforded an opportunity to make a representation against their detention, he said.

Krishna underscored that there are legal provisions that the police can avail of under the Criminal Procedure Code to take care of genuine law and order threats posed by individuals but “it is far easier for them to proceed in this manner – to go to an individual’s residence and just sit there for a few hours”.

Routine tool for quelling political dissent

What happened with Abhigyan might have been illegal but unauthorised preventive detention is frequently used by police forces across India to quell political dissent.

Alam pointed out that such unauthorised detentions have long been carried out in Kashmir, and have also been known to have been effected in Gujarat and Uttar Pradesh. Recently , though, the strategy is being used in Delhi, she said.

Manik Gupta, president of the All India Students’ Association’s Delhi University unit, said that the Delhi Police have been increasingly resorting to such detentions of student activists to deter them from participating in peaceful protests. He says that this was part of the “misuse” by the police of its power, along with “the unnecessary use of force against protestors” and the targeted “sexual harassment of female protestors”.

Former Indian Police Service Officer, activist and politician SR Darapuri said that unauthorised preventive detentions of members of Opposition parties and activists for a few hours on the eve of protests have become frequent and rampant in Uttar Pradesh.

Rajeev Yadav, General Secretary of Rihai Manch, a Lucknow-based human rights group, agreed with Darapuri, adding that unauthorised detentions have become a “routine matter”. He said that when people against whom such methods are deployed ask to be shown the preventive detention orders, police officials simply say that the command has come “from the top” and fail to produce any documents.

The presence of police official in or around one’s residence for the duration of such an illegal period of detention violates the right to privacy, Yadav said. “The police often ask intrusive or personal questions of the members of the house,” he said.

To evade such detentions, activists often end up leaving their homes several days in advance of scheduled protests, he said.

Significance of the order

According to Alam, the development in Abhigyan’s case is significant for two reasons. Firstly, because the copy of the order sent to the Station House Officer by the High Court’s Registrar General has unusually called for “immediate compliance” with the court’s directions. This should lead to the Station House Officer treating it as urgent.

Secondly, this is the first time, she said, that a court has said something about unauthorised preventive detentions.

Archit Krishna, though, disagreed. “There has been no affirmative action by the Delhi High Court,” he contended, “It has merely given liberty to the petitioner to avail of their legal right.”

Instances such as Abhigyan’s detention are not perceived as an issue of liberty by courts because of the complainant did not experience physical violence and the detention lasted only a few hours. However, such measures have a “chilling effect” on individuals placed under preventive detention, as they may refrain from expressing political dissent in the future, he cautioned.