Reform in Practice: Shreyas Narla (Mercatus Center) on the State’s Power to Detain

What is one area of regulation in India that should be deregulated?

So, when I think about deregulation, I'm thinking about taking away from the state its power to interfere with human activity of any kind, broadly, so to speak. But the one that I'm more interested in is where the state has an excessive power of being able to detain or put any of us in jail, not for an offense that we have committed, not as a consequence of a trial or a conviction, but merely on the basis of suspicion. These activities could be something to do with, threat to the security of the state, threat to the public.

But oftentimes these activities turn out to be anything like slum grabbing or sand mining or video piracy or cybercrime. If you look at my home state Telangana, then basically it can include insecticide offenders and spurious seed offenders and even white collar crimes. If you go to Kerala, this would also include some form of aggressive money lending also as an activity.

These are something called the and these are across almost many states in the country. Variations of these laws are pretty much in prevalence across different states. This is a kind of regulation which really takes an extreme coercive form of state interference and checks do exist.

That check is in the form of the writ of habeas corpus, which you can file if you've been detained like that by the police. Unfortunately, the way our high courts and Supreme Court, which have the power to hear these cases, function, these cases eventually take very long to be adjudicated and even by the time the courts come to a conclusion, oftentimes these detentions turn out to be illegal, which means that you've basically been in jail for a very long period of time. What's unfortunate is that even if you are released after a certain time period has gone by, there is no compensation.

No one is being held accountable for having done this to you. You've just sat in the jail for no reason and the system doesn't incur much of an expense in being able to do that. As opposed to a regular criminal procedure where there would be a trial, there would be charge sheet, there would be cross-examination of witnesses.

To escape that process, this is an easy way for the state to simply deal with people it mistrusts without any kind of impunity. This kind of excessive discretion, excessive ambiguity in the law has no place in a very functioning, thriving democratic market economy. 

What would a more effective alternative look like?

Ideally, it would be great if these laws are taken off the books completely, but it's unlikely to happen.

These laws shouldn't exist, but they do and they have existed over decades and they're consistently used rather abused and nowhere to go. I think the best alternative left is to somehow create the environment and awareness to understanding that courts have a huge responsibility in these matters. Habeas Corpus exists in the constitution for a reason and courts have the power and they must exercise their power to hold the government or the police in check from abusing these laws.

There is some hope there that the state can't just go scot-free for abusing its powers.