The ambit and the number of persons detained under the Goondas Act have increased phenomenally in recent years. It has become a tool to put anyone in prison even without giving them an opportunity to explain their side of the story before the courts.
CHENNAI: A 23-year-old journalism student who was distributing pamphlets against oil extraction projects. A pro-Eelam activist who organised a candlelight vigil. A man who sold pirated CDs of a few movies. On first sight, there may seem like these people would have nothing in common but they do. They are all ‘goondas’.
The ambit and the number of persons detained under the Goondas Act have increased phenomenally in recent years just like the full form of the Act itself — The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders, Forest Offenders, Sand Offenders, Slum-Grabbers and Video Pirates Act, 1982.
It was first enacted in 1923 in Bengal and lives on in some form or the other in several States in India, the law aims at a year-long preventive detention of habitual offenders. But the use of the Act is extended so much that now it has become a tool to put anyone in prison even without giving him an opportunity to explain his side of the story before the courts.
“Preventive detention goes against the grain of a fair trial process,” said Geeta Ramaseshan, a reputed Chennai-based advocate. “It provides means for those who can’t be convicted to be detained which is denial of liberty. Historically, the Act has been associated with detaining those who show political dissent and we could probably see more people being booked under this law for political dissent.”
J Agnes Sasitha, head of the Sociology Department at Stella Maris College, echoes the sentiment. “In a modern democracy, the emphasis should be on restorative justice rather than retributive justice. The Goondas Act which is a form of preventive detention infringes on human rights as well. Its use must be restricted to crises.”
On July 16, Valarmathi, a journalism student, was detained under the Act for taking part in Kathiramangalam’s oil pipeline protests. Valarmathi was then accused of being a Maoist sympathiser by the police. The previous month, Thirumurgan Gandhi, the convener of the May 17 movement, was detained under the Act after his arrest for staging a candlelight vigil to commemorate civilian victims in the last phase of the Eelam war.
According to the law, a ‘goonda’ is a person who, either by himself or as a member or leader of a gang, habitually commits or attempts to commit or abets the commission of offences. A perusal of the cases against these two persons clearly points out that all their protests were against the State’s policies. For example, the protests by Gandhi were on issues like demonetisation and other government policies. One of the cases against him was for waving a black flag during Prime Minister Narendra Modi’s visit to Chennai. Valarmathi’s activism showed her leftist leanings.
While these two cases have abused the Act, statistics show that around 3,000 persons are detained under Goondas Act every year in the State. This means on an average seven to eight persons are detained every day. “Detaining anyone on the basis of mere suspicion is unjustifiable,” said A Marx, chairperson of the National Confederation of Human Rights Organisations. “The problem with the Act is it can deny the basic rights of freedom of speech and expression and the right to protection of life and personal liberty. The law is a dated one and needs a relook.”
Incidentally, Tamil Nadu was the first State to add the ‘video pirate’ clause in 2004. In 2011, a Madras High Court bench ruled that even a single criminal case against a person is enough to detain him under the Goondas Act. With this verdict and the broad spectrum of the crimes covered in the legislation, all that is needed to detain a person in jail for a year is a simple FIR.
However, the effectiveness of this move has been questioned by those within the system itself. “It is odd for a digital pirate to be termed a ‘goonda’,” said a senior police officer working in the cyber crime wing, on the condition of anonymity. “A ‘goonda’ by definition is someone who creates unrest or a ruckus in society. I think it is not acceptable for a digital pirate to be clubbed in this category as they only cause financial loss but do not threaten other people’s lives in any way.”
Bringing digital piracy under the ambit of the Goondas Act does not sit well with a number of activists and cyber law experts too. “One must not forget the context in which the Goondas Act was implemented,” explained Pavan Duggal, a Supreme Court lawyer and cyber law expert. “We should not enact the law beyond the scope of its context. Never in their wildest imagination would the drafters of the law have realised that it would be used in the context of activities in the digital and mobile ecosystem! It is important to interpret these laws logically.
“There have to be checks and balances that should be established to ensure that such a law is not misused,” said Duggal. “There is also a lot of ambiguity when it comes to the law because with the digital space in particular, who is to determine what makes a person a ‘goonda’? Booking is simple but providing proof and getting conviction is a challenge.”
There is also the question of how preventive detention laws provide very little room for legal recourse. “The right to challenge the detention is limited,” Ramaseshan said. “The Act is meant to be used as a deterrent. However, it is questionable if it actually proves to be a deterrent. Effective investigation and certain punishment is the best way to look at dealing with people perceived as ‘repeat offenders’.”
Despite the problems that plague the legislation, law enforcement officers feel that they are merely enforcing the law when they detain people under the law. They believe that they are only doing their job. Many even felt that the law, if used effectively, is an important tool that can come in handy for the police.
“The Chennai police have been using the law effectively to maintain law and order in the city,” said a senior police officer who did not wish to be named. “There is a lot of deliberation that goes into figuring out who is to be detained. And that is only done by senior level officers and officials as responsibility is left to the person who is executing the detention.”
Explaining the process of how things are done, the officer said that at the beginning of the year, a list of category A, B and C offenders is drawn up. He said it is generally the category A offenders who are detained and that most detainees are let off in 3-6 months rather than a year. “The Act provides law enforcement agencies with the opportunity to ensure that anyone who has committed a heinous crime, like rape, is not let out,” he said.
But if let unchecked, the Goondas Act could put an end to the need for courts and a fair trial since police can unilaterally decide who must be put in jail and who can go free.
First enacted in 1923 in Bengal, the Act lives on in some form or the other in several States in India. It aims at a year-long preventive detention of habitual offenders
Statistics show that around 3,000 persons are detained under Goondas Act every year in the State. This means on an average seven to eight persons are detained every day
A police inspector has to spend nearly Rs 16,000 for paper work to detain a person under the Act. But the government reimburses only Rs 8,000