The term ‘preventive detention’ is in contradiction with the word ‘punitive detention’. In contrast, it can be said that ‘detention’ may be of two types – punitive and preventive detention. Preventive detention means detention of a person without trial and conviction by a court but merely on suspicion of hampering public order and security. Preventive detention is an abnormal measure whereby the administration is permitted to impose restraints on the freedom of a person who may haven’t committed a criminal offence but who, it’s apprehended, is close to committing acts that are prejudicial to public safety. Punitive detention on the opposite hand means the detention of an individual only after trial for committing a criminal offence and after his guilt has been established during a competent court of justice.
” According to Justice Vinan Bose, preventive detention has three special features –
- It is detention not imprisonment,
- It is detention by the executive authority without trial or enquiry by a court,
- The object is preventive and not punitive”.
The nature of preventive detention law is completely different from the arrest and detention of ordinary people in a criminal jail and its applicability in both emergency and peaceful situations are different. The framers of the Indian Constitution determined to retain preventive detention as one of the important ways to curb anti-national activities even though they suffered the most. Law of preventive detention in itself is the repugnance to all or any those that admire personal liberty. Such law obstructs the essential human freedom which we all praise and which holds fundamental value among the upper principles of life. Preventive detention is a structure in which the citizens of a country get arrested without revealing the grounds of their arrest. Every arrested person has the right to defend himself by a lawyer of his own choice. In the general case of arrest and detention, the detenu has various safeguards vested under Article 22(1) and (2) of the Constitution of India but these safeguards will be divested under the preventive detention law under Article 23 of the Constitution of India.
Preventive detention laws have an extended history in India. Preventive detention was a standard feature of the colonial legal systems in India. In the 19th century a complex network of regulations provided for detention and arrest without trial in certain cases, and detainees were denied the proper to petition courts for writs of habeas corpus. The defence of India Act and therefore the Defence of India rules were enacted after the outbreak of world war II. These provisions authorized the government to detain a person thought to be a threat to public order, national security or the upkeep of supplies and services essential to the community. Laws authorizing detention of a person without trial were considered necessary by the British Indian government to suppress subversive political activities of the people in the sub-continent but after achieving independence. The government of India and Pakistan continued these laws. In 1947, India got its independence and in 1950, the Constitution was adopted. India is included among those countries in the world where the preventive detention laws are applicable during the peacetime as well. India has a very long and controversial history of preventive detention law, to understand the whole nexus of how the preventive detention laws have evolved with the time passed and what’s the present scenario of preventive laws. We must go through all the historical landmarks and preventive detention laws that exist.
- Bengal Regulations – III of 1818 (the Bengal State Prisoner Regulation) was allowed by the British rulers to detain someone on mere suspicion.
- Rule 26 of the Rules framed under the Defence of India Act, 1939 was enacted to put people under restrictions to not to act against the state or in any manner that threatens the security of the country.
- In 1950, the first Preventive Detention Act was passed, the Act was dissolved in 1969.
- The Maintenance of the Internal Security Act (MISA) was passed in 1971. It was, however, repealed in 1978.
- Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) was passed in 1979.
- In December 1980, the National Security Act (NSA) was passed, which empowers the central and state government to make laws.
- The Terrorist and Disruptive Activities (Prevention) Act (TADA) was passed in 1985. It was abolished in 1995 due to maladministration.
- Prevention of terrorism ordinance (POTO) was enacted in 2001.
- Prevention of Terrorist Activities Act (POTA) was allowed during 2002-04.
- Unlawful Activities (Prevention) Act was passed after Mumbai attack 26/11 to prevent any kind of terror activity in the nation.
Grounds for Preventive Detention
Following are the grounds on which preventive detention can be made-
- To maintain the defence and safety of the state;
- To maintain the public order in the country;
- To maintain supplies and essential services;
- To maintain all Foreign affairs.
These grounds are nowhere defined in any statutes. Thus, the judiciary plays an important role in differentiating these grounds. In the case of Ram Manohar Lohia v. State of Bihar, the Supreme Court in this case, tried to explain the terms “security of state”, “law and order” and “public and order”. Further, in Arun Ghosh v. State of West Bengal, the court attempted to define the concept of “public order”. The court stated that the concept of public order should be distinguished with the acts done against any individual as the same doesn’t affect the society to this extent that it causes general disturbance to public harmony.
Safeguards and Detainees’ Rights
Indian Constitution provides safeguards against illegal detention under Article 22 which establishes protection against arrest and detention. On closely examining all the provisions of Article 22, we can interpret that clauses (1) & (2) provide three specific rights to the person who is detained (other than who is detained under the law of Preventive detention).
- A person has a right to know his grounds of arrest.
- A person has a right to appoint defence of his own choice.
- The person should be produced in front of a magistrate within 24 hours of his arrest.
But the safeguards available under clause (1) and (2) will be swiped by clause (3) of Article 22. The detenu will leave with protection as provided under clauses (4) & (5) of Article 22.
In case of Preventive detention law:
- No one is allowed to be detained beyond 3 months unless advisory board issues notice before the expiration of 3 months regarding continuance of detention is necessary in their opinion.
- The grounds of detention to be informed to the detenu.
- The detenu must be provided with the right to appoint and defend himself through a lawyer of his choice.
The maximum period to detain a person without any advisory board is minimized from 3 to 2 months provided by Article 22 amended under the 44th Constitutional Amendment Act, 1978.
In Sambhunath Sarkar v. State of West Bengal the Supreme Court held that Section 17 of MISA, 1971 is invalid. The court stated that Article 22(7)(a) was an exception to Article 22(4). Thus, Article 22(a) can only be used in general cases. The Supreme Court explained the validity of preventive detention laws in a broad and constructive way. Writ of habeas corpus is widely used by people as a safeguard against illegal detention of a person.
Writ of Habeas Corpus – Articles 32 and 226 of the Constitution of India authorize the Supreme Court and High Courts, respectively, to issue writs. Habeas corpus is a command by the court to present the body or” that you have the body”. This writ is used as recourse by a person who is detained unlawfully. Habeas corpus is the most efficient tool in case of illegal confinement of a person.
In the case of Sunil Batra v. Delhi administration– the court allowed a mere Letter (written by the detenu) as the writ petition of habeas corpus. The writ would be allowed if the detention was illegal and done in a malafide way.
Preventive Detention in India
A.K. Gopalan’s Case– The petitioner was a political leader who was illegally detained by the state of Madras. The petitioner filed writ under Article 32 for violation of his fundamental rights under Articles 19, 20 & 21 of the Constitution. In this petition constitutional validity of PDA [Preventive Detention Act] was challenged. The Court held that none of the provisions of PDA, 1950 violates the fundamental rights and are intra vires excluding Section 14 of the Act which was held invalid and ultra vires by the court. The decision of the court didn’t affect the validity of the Act as a whole.
Kharak Singh’s Case–In this case, the petitioner challenged the surveillance by police around his house as it violates his fundamental rights under Article 19[d]-Right to freedom of movement and Article 21-Right to privacy. The petitioner challenged the Constitutional validity of CH-XX of the Uttar Pradesh Police regulations. The court held that “domiciliary visits” at nights is unconstitutional and infringes the personal liberty of a person under Article 21.
Nuzhat Perween v. State of U.P. & Anr – In this case, the mother of accused Nuzhat Perween issued a writ of habeas corpus in Allahabad High Court for his son Mr. Kafeel Khan’s release. Kafeel Khan was detained under Section 3 of NSA. The writ petition challenged the orders of his preventive detention under NSA which was passed on 13/2/2020. The petition was presented in Allahabad high court in March and after a no. of hearings it was finally decided on September 9, 2020. The court held that detention was illegal in nature. The extension of the period of delay of his release was also held illegal.
The preventive detention laws in India have their existence from the British period. A country like India which is diverse in religions, cultures and languages somehow justify the necessity of Prevention laws. As to prevent the security of the nation from any unforeseen threats, preventive laws can be useful tools. In the present scenario, preventive laws are seen as a necessary evil. In nutshell, preventive detention laws in India lead to the violation of basic human rights but also increasing no. of cases highlights the incapability of proper administration.
Quoted by Sharifuddin Pirzada, Fundamental Rights and Constitutional Remedies in Pakistan. [Lahore, All Pakistan Legal Decisions,1964].
Derek P. Jinks, “The Anatomy of an Institutionalized Emergency: Preventive Detention and Personal Liberty in India”22 MICH. J. INT’L L. 311 (2001), 324, available at: https://repository.law.umich.edu/mjil/vol22/iss2/3 (last visited on October 21,2020).
AIR (1996) SC (740).
AIR (1970)SC (1228).
AIR (1974) SCR (1) 1.
AIR (1980) SC (1579).
AIR (1950) SC (27).
AIR (1963) SC (1295).
 WP no. 264 of 2020.
BY PRERNA PATHAK | LLYOD LAW COLLEGE , NOIDA