USE AND MISUSE OF MISA
By
M.L. Sondhi
November 15, 1974
(In discussing MISA as it stands today, Prof. Sondhi of Jawaharlal Nehru University, formerly MP, says that the Government has failed to follow consistent guidelines and that it has yet to project an image of the social action programme.)
It seems appropriate to begin any discussion of the Maintenance of Internal Security Act (MISA) by taking into account the wide gulf dividing Jawaharlal Nehru’s politics from those of Mrs. Indira Gandhi.  Nehru’s politics revolved around a common denominator of a liberal rationale and even when it was a question of practical measures for meeting emergencies he could be persuaded to perceive the importance of civil rights as the linchpin of India’s democratic structure.
A good test of Nehru’s feelings and intentions was provided by the 18th Constitution Amendment Bill which sought to make the Government immune from any claim for damages, or from any action caused by the denial of basic rights under the Constitution of India.  The abandonment of the Bill was made possible by tension that existed between the Government and the Opposition and it was often quoted as an instance of Nehru’s political maturity.
The opposite pole of style is provided by the excuses which have been substituted for candour by the present Government of India in reference to the charges contained in Amnesty International’s Report on Indian prisoners held under MISA, DIR and those in under-trial categories.  In the light of fuzzy commitments, “garibi hatao” promises and socialist rhetoric of today’s ruling Congress party, no political leader seems to feel the need to come forward in a spirit of self-criticism and candidness to propose non-authoritarian solutions for the grave political and economic crisis confronting the country.  The calculus of political survival tends to be worked out exclusively in terms of anti-liberal executive actions.  Some of these would have been simply thought clumsy at the time of Nehru.
With the stroke of a wand the Ordinance amending the MISA (which gave Government powers to detain smugglers for two years without trial) sought to convert this measure from one hitherto used as an instrument of political repression to a nationwide enterprise for combating the disconcertingly large number of economic crimes.  The State Governments were asked to be particularly active and the Prime Minister lent her own political weight and announced her determination that her Government and party would succeed in making a breakthrough towards a new firm policy of crushing the anti-social offenders whose economic crimes were perpetuating the economic malaise.
It is possible to make a preliminary assessment of the stormy period of the last few weeks in which the MISA has been used to mitigate and reduce the evil of smuggling by rounding up well-known smugglers.  First of all the entire operations promise to pay some political dividends to the ruling party whose mandate to rule the country was seriously challenged in one or the other State units last year.  Even if the objective was propagandist, there is now in the process of emergence a more definite orientation towards the whole complex of relations between economic crimes and political patronage.
This may help in rectifying distortions in some restricted areas because powerful politicians may not find it worth their while to risk public scandals.  But this does not imply that the Government of India has now a cohesive conceptual framework for dealing with corruption of which smuggling is an important symptom.  On the contrary Government action has failed to follow consistent guidelines and the long-term outlook remains bleak.  The MISA actions by themselves do not constitute an irreversible commitment to put an end to the abominable spectacle of governmental extravagance which is accompanied by fairly general practices of politicians enriching themselves at the expense of the nation.
If a fruitful and constructive anti-corruption movement is to develop in India, political leaders must comprehend the complex interweaving of the relationship of organized crime and political patronage.  Senator Kefauver, who earned a well deserved reputation for his campaign against economic crimes in the United States, made a clear distinction between the ostensible issue and the real issue in the following words: “Organised crime and political corruption go hand in hand, and in fact there could be no big-time organized crime without a firm and profitable alliance between those who run the rackets and those in political control.”
In the final analysis, MISA action eludes the main task of demolishing the “profitable alliance” of those “who run the rackets” and those in “political control”. Without this essential action, the MISA arrests become simply a subterfuge, and the public will ultimately fail to see clear progress towards eradication of political corruption and economic crime.  The MISA actions can by no stretch of imagination be regarded as a common social policy.
The application of MISA has not given evidence of any advanced preparatory work which would be considered essential if successful action against the ruling party’s spoils system was contemplated.  Taking the question of the rounding up of smugglers itself, we need an unassailable machinery which can avoid the application of “double standards”.  It would be idle for the Government to pretend that it can secure democratic legitimation for its actions as long as the interests and capacities of smuggler-kings enable them to receive royal treatment even in jails.  It is also no wonder that the summary and arbitrary executive action has not in many cases been upheld by the courts.
Perhaps the most important element in any assessment of the MISA actions is the problem of ensuring that public opinion is behind the law.  By using MISA against its political opponents the Government has done little to expand its political cooperation.  At the same time the discrepancy between its fanatical faith in MISA action and the “casual and perfunctory manner” in which its enforcement officers have proceeded against smugglers has definitely detracted from the image of the social action programme which the Prime Minister intended to project.