New Delhi: Delhi University student activist Abhigyan – who was confined to his house by Model Town constables on June 30 during Prime Minister Narendra Modi’s visit to campus – has filed a formal complaint of wrongful confinement with his local police station after the Delhi high court said he had the right to do so.
The court’s green light came after counsel for the Delhi police, Sanjay Lao, told a two-judge bench of the court that there were no preventive detention orders against Abhighyan. The court was hearing a writ petition by Abhigyan alleging that his preventive detention was illegal as it was without orders.
Abhigyan had also petitioned the court to declare his confinement as illegal and issue a writ of mandamus censuring the practice of arbitrary detention.
While the bench comprising Justices Siddharth Mridul and Gaurang Kanth said it would be premature for the court to issue such a declaration, it granted him liberty on July 12 to file a complaint with the Model Town police’s station house officer (SHO).
On July 17, Abhigyan filed a formal complaint with the Model Town SHO against constables Kaberi and Amit Kumar citing several sections of the Indian Penal Code, including those relating to wrongful confinement and criminal intimidation.
The complaint was duly received and the police will now have to conduct a preliminary investigation before registering – or refusing to register – an FIR.
“Illegal custody is an anathema and antithesis of rule of law, but the law applies equally to the police as it does to you … Your allegation is for illegal detention. You file a complaint. The police [do] not have any immunity for their action,” Justice Mridul remarked orally according to LiveLaw.
He also likened the idea of the court making such a declaration at that stage in the case to “putting the cart before the horse”.
Abhigyan is a student at Delhi University (DU) and president of the Delhi chapter of the All India Students’ Association (AISA), a student body associated with the Communist Party of India (Marxist-Leninist) Liberation.
He was confined by police along with fellow DU student and AISA general secretary Anjali in the latter’s home on June 30, hours ahead of a ceremony in the university’s centenary celebrations.
Constables from the Model Town police station inside the student activist’s home. Photo: Special arrangement.
Prime Minister Narendra Modi was booked as the ceremony’s chief guest.
The university went out of its way to ensure student compliance during the ceremony, with some of its colleges mandating attendance at screenings of the event and barring students from wearing black-coloured clothing, a common symbol of dissent.
Model Town police allegedly told Abhigyan and Anjali that they were being detained “for the safety of the prime minister” as they “might create [a] ruckus at the DU event”.
Constables Kaberi and Amit Kumar camped in Anjali’s home for five hours on June 30 starting at around 9 am and allegedly threatened to arrest the AISA activists if they tried to leave.
They also allegedly told Abhigyan that there were no orders for his and Anjali’s detention, something that has since been corroborated by standing counsel Lao in court.
Advocate Shahrukh Alam, who represented Abhigyan in the high court, said that their case centred on the circumstances under which someone’s fundamental rights to personal liberty (Article 21 of the constitution) and protection from arbitrary detention (Article 22) may be breached.
“The two questions for consideration are: (1) If the breach of liberty is only for a few hours, is it acceptable to suspend [someone’s] Article 21 and Article 22 rights? (2) If the breach of liberty is vis-a-vis known protestors, raucous student activists and dissenters, is it acceptable to suspend [their] Article 21 and Article 22 rights?” she told The Wire.
Alam said the answer to these questions is to be found in K.S. Puttaswamy v. Union of India, in which the Supreme Court said that ADM Jabalpur v. Shivkant Shukla, a judgement which had endorsed the suspension of fundamental rights during emergency, should be “buried ten fathoms deep and is never to be resurrected”.
“Thus, the primacy of fundamental rights is well established,” she argued.
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Abhigyan’s lawyers also noted in their writ petition dated July 10 that the Supreme Court had held in a different case that under Article 22 (5) of the constitution, authorities who order the preventive detention of a person must communicate the grounds of the order to that person as soon as possible.
They argued that as Abhigyan was never provided with an order (or grounds for an order) relating to his detention, his fundamental right under Article 22 had been violated.
Alam told The Wire that the high court’s July 12 order granting liberty to Abhigyan was especially significant because of a letter the court’s registrar general sent to the Model Town SHO asking for their immediate compliance with the order.
“This is significant for the cover letter from the registrar general to the SHO of the Model Town police station directing immediate compliance with the order. It is interesting because normally, orders aren’t directly communicated to police stations, unless it is a habeas corpus case.”
“In habeas corpus cases, when someone is under illegal detention, orders are sent to the person’s custodian. But Abhigyan’s is not a habeas corpus case – it is a preventive detention case, and the court’s order was post facto [after the fact].”
“The court’s action recognises that Abhigyan’s detention was illegal as there were no orders for it, and that cases like these are becoming a pattern,” she said.
Anjali and Abhigyan under detention in the former’s flat on June 30. Photo: Twitter/@anjali__27.
As of July 19, Advocate Archit Krishna, who also represented Abhigyan in court, said that no FIR had been filed, pursuant to receipt of Abhigyan’s complaint.
He added that if no FIR is filed eventually, Abhigyan has the legal recourse to approach a magistrate under sections 156 (3) and 200 of the Code of Criminal Procedure seeking the court to order the police to file an FIR.
In his request to the SHO, a copy of which The Wire has accessed, Abhigyan said that his confinement by the constables has damaged his standing in the community.
“The whole incident … resulted in the neighbours complaining and demanding explanations from me and my friends, and declaring that their presence in the apartment was not welcome. My friends and I have had to face a lot of hostility … and have been subjected to general suspicion,” he wrote.
Anjali previously told The Wire that the incident put her and Abhigyan at risk of being evicted from her rented flat.
Manik Gupta, the AISA’s Delhi University president, told The Wire that police excesses in relation to DU students is not a new phenomenon.
“Students are detained without any reasoning for holding peaceful protests, false FIRs are filed to intimidate activists and excessive use of physical force has become a norm to crush dissent,” he alleged.
