To
The Honourable Chief Justice,
The High Court of Andhra Pradesh,
Hyderabad
(Through the Legal Services Authority)
Sir,
The Human Rights Forum warmly welcomes you, Sir, as Chief Justice of Andhra Pradesh High Court.
We are a citizens’ forum established with the objective of working for the protection of the constitutionally guaranteed/internationally recognised rights of the people, and for the right of the people to propose and strive for new rights not yet recognised in national or international law. The right to a wholesome and dignified life is the touchstone for the rights that may be aspired for. We are, among other things, greatly concerned about the right to liberty guaranteed to citizens by Article 21 of the Constitution of India. HRF is a self-financed organisation whose members for the most part are from the professions of teaching, journalism and the law.
We wish to bring to your notice a serious concern of ours in respect of use of the Preventive Detention law in the context of the ongoing agitation for a separate State of Telangana. As is known, the demand and struggle for Telangana has a long history. The Honourable Home Minister, Government of India, announced on December 9, 2009 that the process for separate Telangana State would be initiated. Since then the people of Telangana have been agitating for early introduction of a Bill in the Parliament for creation of Telangana State.
Pertinently, the ongoing agitation seeking a separate State has been within the boundaries of the law. It has been by and large peaceful despite its widespread and sustained nature. This is a fact acknowledged by even the worst detractors of the separate Statehood demand. The movement can by no stretch of imagination be described as having gone ‘out of control.’ However, the State Government has time and again resorted to undemocratic methods to deal with the agitation. It has been brought to our notice that innocents are being implicated in false criminal cases.
What is most disturbing is the State Government pressing into service the Preventive Detention laws so as to curb the agitation. It is needless to say that the Preventive Detention Law puts a person behind bars without he/she being found guilty of an offence. It is a highly undemocratic regime. The Supreme Court has stated that Prevention Detention is, ‘by nature, repugnant to democratic ideas and an anathema to the rule of law.’
The first victim in the latest use of Preventive Detention law in Andhra Pradesh is Dr. Cheruku Sudhakar, a qualified medical doctor running a nursing home at Nakrekal town in Nalgonda district. The District Magistrate of Nalgonda district served an order of detention dated 03-11-2011 on Dr. Sudhakar and the police immediately took him into custody and sent him to Warangal Central Prison where he is now detained. Some eighteen cases have been cited in the Detention Order. This Detention Order was passed under the provisions of Andhra Pradesh Preventive Detention Act, 1970. On 08-11-2011, the Grounds of Detention were communicated to the detenu. It is stated that some cases were registered against him since 2007 and charge sheets were filed in seven cases. These cases are pending trial. The District Magistrate cited another seven cases which are under investigation. In the cases in which charge sheets were filed Dr. Sudhakar is not the sole accused. Cadres belonging to various political parties and cultural organisations are among the accused.
In the cases in which investigation is reported to have been pending, Dr. Sudhakar is not the sole respondent. Of these cases, the Detention Order states, there are four cases in which Dr. Sudhakar was taken into custody under section 151 Cr.P.C. In some cases, in which charge sheets are filed the accusation is that the detenu along with others demanded sufficient funds for an irrigation project, demanded minimum support price to agro products etc. There is not a single case which is triable by a Court of Sessions. Although a number of activists of different political parties are accused in the cases, Dr. Sudhakar was singled out by the Administration. It is our fear that the Government is testing the waters so as to unleash brutal repression on a movement that has adopted democratic and constitutional means of struggle to achieve its objective.
Things have not stopped there. The District Magistrate passed a Release Order on 09-11-2011. Even before the detenu could look into the release order another Detention Order of the self-same date under the National Security Act was slapped on him incorporating the same grounds mentioned in the Detention Order dated 03-11-2011 and reiterated in the Grounds of Detention dated 08-11-2011, passed under the A.P. Preventive Detention Act, 1970. It appears this is a clear case of non-application of mind and acting as a matter of course thereby resulting in a violation of the personal liberty of Dr. Sudhakar.
As is known, India is one of the countries in the world where the Preventive Detention law enjoys Constitutional validity even during peace time. No such law exists in the USA and in England, except during war time. In contrast, the European Court of Human Rights has long ago held that such laws are illegal under the European Convention on Human Rights regardless of the safeguards inherent in them to prevent their misuse.
We are of the view that Article 22 (3) (b) of the Constitution of India, which permits Preventive Detention, is only an exception to Article 21, which upholds the right to life and personal liberty. An exception is an exception and cannot nullify the main rule. We cherish the fundamental rights enshrined in the Constitution and the fundamental rights are meant for protecting the human rights of the people and not to incarcerate them for long periods without recourse to an advocate and without trial, conviction and sentence by a competent court of law.
It is not out of place to mention here that the Apex Court after elaborate survey relating to Preventive Detention law, on 5 April 2011, ruled that if the ordinary law of the land (IPC and other penal laws) can deal with a situation, recourse to Preventive Detention law will be illegal. The situation in Telangana can by no means be described as ‘a state of war.’
In the backdrop of these legal principles, we earnestly submit that in Dr. Sudhakar’s case invoking of the A.P. Preventive Detention Act, 1970 first and releasing him under that Act later and again detaining him within seconds under the National Security Act, 1980 is illegal and patently violative of a citizen’s fundamental rights which are a cornerstone of our democracy.
We earnestly request you, Sir, to take cognizance of this case suo motu andprotect Dr. Sudhakar’s human rights by appropriate orders.
Yours sincerely,
S Jeevan Kumar
HRF State President
VS Krishna
HRF General Secretary
22.11.2011
Hyderabad