PASA crutch makes Government task easier

Last year, the Government was forced to withdraw an order passed by Amreli district magistrate against Congress worker Virjihai H Chodvadia, after the court cautioned the Government to be prepared for severe strictures.

Even the Supreme Court rejected the detention order passed by Ahmedabad Police Commissioner in 1994 against Mustakmiya Jabbarmiya Shaikh. The SC observed that the power to detain a person under PASA 8220;should be exercised with restraint and great caution.8221;

It said: 8220;A distinction has to be drawn between law and order and maintenance of public order, because most often the two expressions are confused and detention orders are passed in respect of activities which fall within the domain of law and order and which have nothing to do with maintenance of public order.8221;

Section 3 of PASA states a person shall be deemed to be acting in any manner prejudicial to maintenance of public order8217; when such a person is engaged in or is preparing to engage in bootlegging, drug dealing, immoral traffic or property grabbing.

Interestingly, the number of PASA detenus increase in election years: the number of detenus in Ahmedabad was 141 in 1995, 508 in 1996, 300 in 1997, 377 in 1998 and 327 this year so far, though the number was 199 till July.

Former Chief Justice A P Ravani of Rajasthan HC says PASA is often used as a short-cut to maintenance of law and order rather than public order. 8220;If ordinary criminal laws are not satisfactory, they could be amended, but they should never be ground for use of PASA,8221; he says.

However, Rajkot Police Commissioner S K Sinha says PASA has become an effective alternative to 8220;third degree methods8221; and has prevented 8220;encounter deaths8221; from taking place. He says it is difficult to check crime with the role of police, prosecution and judiciary being limited.

Surat Police Commissioner Kuldip Sharma says, 8220;PASA is resorted to because the existing system is too cumbersome, liberal and time-consuming to have any deterrent impact.8221; If these drawbacks are removed from the existing system then many will get into serious trouble even for routine crime, he says.

However, Justice Ravani, who has presided over different advisory boards in Gujarat HC for several years, including one on PASA says, 8220;A mere look at the dates of orders will show they are being passed on occasions like Rath Yatra, Moharram and elections. How is it that the activities of certain people suddenly acquire prejudicial tendency for maintenance of public order only on certain occasions?8217; Besides, 8220;If election means detention of innocent citizens without trial for 8-10 months, can our democracy be said to be functioning successfully?,8221; he asks.

He says, 8220;The fact that about 85 to 95 per cent of orders are being quashed by the court shows preventive detention orders are an abundant exercise of abuse of power.8221; He adds, 8220;Of late, the court has either become indifferent or is overburdened with so much work that a PASA order, which could be quashed within five minutes, takes six to 10 months for final hearing.8221;

Lawyer Girish Patel says detention under PASA opens possibilities for abuse as it is subject to satisfaction of the detaining authority. He says detaining a person on the basis of anonymous criminal complaints, which could also be false and concocted, 8220;brings into play vindictiveness arising out of political or personal rivalry8221;.

Patel says no preemptive action is possible against detention under PASA. Though the detention could be challenged in high court, the court has 8220;no business to go into the veracity of allegations or grounds or even whether the materials are adequate or not8221;.

Senior advocate Haroobhai Mehta is of the opinion that PASA is being misused at the taluka level by local police officers to 8220;collect money8221;. He says while more and more poor people are detained, land grabbers and other affluent criminals are allowed to go scot-free.

General secretary, People8217;s Union for Civil Liberties, Gautam Thakar says PASA is generally used more severely against minorities, who could even be booked under Criminal Procedure Code or Indian Penal Code. Secretary, Council for Social Justice, Valjibhai Patel, says bootleggers or other criminals are booked under the Act, despite the fact that they do not even disturb public order.