MUMBAI, India — Each night, after his mother goes to sleep in the kitchen and four other relatives curl up on the living room floor, Fazal leaves his tiny house in North Mumbai to find a little space for himself. Often, he can find a decent night's sleep on a bench outside near the Jogeshwari East neighborhood market.
But one night last month, Fazal did not sleep so soundly. Five policemen shook him awake. They arrested him and detained him at a nearby police station for what seemed like no good reason, said Fazal.
Fazal Ahmed Shaikh, 21, said he spent three days in jail, silent and fearful of the police and his cellmates. He stayed in his cell with bugs of “all sizes,” he said, until the police eventually released him. Fazal was never charged with a crime.
Fazal, who wears his shaggy black hair swept across his forehead and sports the flicker of a goatee, was one of 7,000 people arrested in Mumbai ahead of a controversial court case ruling in late September. Mumbai authorities, fearful the verdict would spark riots, used Section 151 of the Criminal Procedure Code to detain people they suspected might disturb the peace, according to Mumbai’s Additional Commissioner of Police Deven Bharti.
The long-awaited case in the Allahabad High Court decided the land ownership rights of a disputed holy site in Ayodhya in northern India. Demolition of the Babri Mosque at that site in 1992 triggered a wave of violence between Muslims and Hindus across India, most notably in Mumbai. Eighteen years later, authorities went to great lengths to prevent another round of riots in India’s financial capital.
The so-called preventative arrests — which the police also employ ahead of large religious festivities like Ganesh Chaturthi, political strikes and visits by foreign dignitaries — successfully averted violence in Mumbai, according to Bharti.
“They are effective,” he said. “The results are in front of you. Nothing happened [after the Ayodhya ruling].”
Bharti said police officers arrest individuals with past criminal histories, those who belong to anti-social groups, hooligans, local slumlords or, in general, “any bad character.” He said the arrests are not arbitrary as police officers know the neighborhoods they patrol and can accurately identify rogue elements.
Civil rights lawyers and activists, however, argue that the authorities abused the law and used it to target poor people who have no means to defend themselves from unlawful arrests.
Courts in India have ruled in multiple cases that police need evidence that the individual is planning to commit an offense before they can arrest him, said civil rights lawyer Vijay Hiremath. Instead, he said police make arrests based on the person’s past criminal history, political party affiliation or involvement in past riots, which are insufficient criteria for lawful arrest.
Fazal, the young man arrested ahead of the verdict, claims he has never been involved in riots or violent activity and was not planning on instigating unrest after the Ayodhya verdict.
“It was my first time in a police station so I was afraid,” he said.
Fazal was not allowed to make a phone call and did not have a mobile phone with him. On the second day of his arrest, the police went to his house and told his parents what had happened. His family brought him a package of rice and vegetables each day.
Fazal, wearing jeans and a blue and white kurta to his knees, said he was arrested near his home in Hari Nagar, a predominately Muslim area of Jogeshwari. But the police wrote on his report that they found him in Meghwadi, a Hindu area. He argues the police lied to claim he — a Muslim — was roaming in a Hindu area ahead of the verdict.
He also said that during the three days police never brought him before a magistrate. According to Indian law, police cannot detain a person for more than 24 hours without bringing him to court.
Asked about Fazal’s case, Bharti said the young man could file a complaint if he wanted to. He said the police system has many layers of supervision, and the system punishes officers who violate the law.
Civil rights lawyer Hiremath said that while people have the right to challenge their arrests, they often don't because they can't afford the lawyer fees and fear additional harassment by the police.
“As many of the people are poor and don’t have the resources to engage a lawyer, the legality of these arrests is never challenged,” Hiremath wrote in an email.
Fazal, fearful of police harassment, has not filed a complaint and asked that his photograph not be taken.
The arrests also raise concerns over an individual’s freedom of speech, which is protected by the Indian constitution.
“You have a right to protest, and that gets violated,” said Flavia Agnes, a leading women’s rights lawyer and social activist in Mumbai.
The rights group Human Rights Watch supports appropriate actions by the state to pre-empt violence, but argues that the police must not abuse the law, according to senior South Asia researcher Meenakshi Ganguly.
“HRW does not oppose preventive detention,” she wrote in an email, “but asks that there be due process, and that the detention period [be] minimal.”