This article is authored by Abhishek Singh & Kirti Talreja from National Law University Odisha. The article deals with the preventive arrest laws in india.

Introduction

“Preventive Arrest” refers to an action that can be taken by the police on certain suspicious grounds that lead them to believe that person concerned may commit some wrongful acts in the future. It is mentioned under Section 151 of the Code of Criminal Procedure, 1973 (hereinafter, CrPC). It gives complete empowerment to the police in order to arrest a person whom they think and strongly believe may commit an offence which is cognizable in nature. Moreover, this power to arrest is one to arrest without a warrant. Thus, the important conditions that the §lays down are as follows: 

1. There must be a presence of a design for the offence and such offence whose commission is anticipated should be cognizable in nature. 
2. The concerned individual must be connected to the design mentioned above.
3. Some information such commission must have been received by the police.
4. It must appear to the police that it is not possible to prevent such an offence otherwise can be prevented only by arrest.

A police officer is vested with the power to arrest without a warrant and even without having obtained orders from a Magistrate if he receives any kind of information and anticipates an offence. However, it is imperative to mention here that “protection against arrest and detention in certain cases” has been given under Article 22 of our Indian Constitution. But, the area of preventive arrest has always been under controversies and is therefore one of the contentious parts under the scheme of fundamental rights laid down in our constitution. Also, it has been provided in our constitution that “if the person who has been arrested or detained under preventive detention laws then the protection against arrest and detention provided under Article 22 (1) and22 (2) shall not be available to that person.”

Powers of the police under §151 and its usage when required have been reiterated by the courts time and again. In the case of Asitva Sushil Kachihar, the court observed that: 

“A mere perusal of §151 of the Code of Criminal Procedure makes it clear that a police officer can do so only if he has come to know of a design of the person concerned to commit any cognizable offence. A further condition for the exercise of such power, which must also be fulfilled, is that the arrest should be made only if it appears to the police officer concerned that the commission of the offence cannot be otherwise prevented.”

Therefore, §151 clearly provides the essential requirements to exercise the power of making an arrest preventive in nature. However, if the above mentioned requirements are not satisfied by the police officer, then such authority has the chances of exposing itself to proceeding for the probable violations of the Articles 21 and 22 of the Indian Constitution that provide the fundamental rights to individuals. 

In this research article, the various dimensions of preventive arrest will be discussed. The history of such laws, the objective of such laws and the constitutional safeguards through various case laws and decisions shall also be reflected upon. 

History of Preventive Arrest Laws in India 

Our country got its independence in the year 1947 and three years later i.e in the year 1950, our Constitution was adopted. It has been said that framers of the constitution suffered many hard times due to the preventive Arrest laws and therefore it is quite strange that still they did not have any hesitation in providing Constitutional righteousness to the preventive arrest laws. It is even more surprising to note that these laws get this sanctity under the main part of our constitution that includes the fundamental rights of individuals. 

It can be said that some areas under Article 22 of our constitution are rather Fundamental Dangers and not fundamental rights for the Indian citizens. It was the citizens by whom and for whom this constitution had been framed to herald in a contemporary society where everyone has the freedom of association and of expression.

The “Prevention Detention Act” of 1950 was driven by Sardar Patel. He had to face many “sleepless nights” to decide on the introduction of a preventive detention bill. In 1950, 0n 26th feb, the enactment of the very first act of such laws took place. Under the provisions of this Act, the people who were disturbed peace and order in an ordinary manner were not to be arrested. However, a political leader during the time of A.K. Gopalan got arrested. Thus, somewhere down the line, it was reflected that these laws were made with a view to curb the political dissent. Most importantly, it must also not be forgotten that there was no other civilized country, not even Britain that included such laws in its constitution. Not only this, even during the last World War, the USA and most of the countries of Europe who had direct involvement in the war, did not enact any such law. It is however worth mentioning that at the time of the war, a Preventive Detention Law was introduced by England but in that case, an individual could have been detained to the satisfaction of Great Britain’s Home Minister. But, in India, the mere satisfaction of the police and the magistrate are necessary.

It has been reflected by the Constituent Assembly debates that it was accepted in general that there was a need for such laws. It must be noted that eminent jurist “Alladi Krishnaswamy Ayyar” while describing such preventive detention considered it to be a “necessary evil” as according to him individuals were preventively detained in order to undermine our Constitution’s sanctity, the State’s Security and the individual liberty. Thus, it can be seen that the intention of the framers was never the prohibition of prevention arrest laws but was only to inculcate and include certain safeguards for its use and misuse such as time period limitation, providing the advisory board with the power to review such arrest orders etc. 

Grounds for Invocation of Section 151

Preventive arrest can only be done on the below mentioned grounds:

• Maintenance of public order;
• Security of state;
• Security of India and foreign matters;
• Maintenance of supplies and essential services and defence.

Object of Preventive Arrest Laws 

It has been held by the judiciary in various decisions that the very object of preventive arrest laws is not punishing a person. Rather it is only to the prevention of an individual from committing a crime or an act that is prejudicial to the state.

• In the case of Mariappan, it was observed by the court “the object of detention and the detention laws is not to punish, but, to prevent the commission of certain offences.” 
• In the Kubic Darusz case, the court observed that the detention laws are not punitive in nature and are precautionary. It went on to state the object of such laws and observed that the object was never to punish an individual for commission of any wrongful act rather it was only to intervene and stop the commission of the act so anticipated. It was stated by the court that “No offence is proved, nor any charge is formulated; and the justification of such detention is suspicion or reasonable probability and there is no criminal conviction which can only be warranted by legal evidence, thus in this sense, it is an anticipatory action.”
• In the Pushpa Devi case, the apex court pointed out that preventive arrest was different from punitive detention. The Hon’ble Court, in this regard, observed that despite the fact that the basic element of “detention” remains common in both punitive as well as preventive detention but it cannot be ignored that still there is a very big difference when it comes to their objectives. On one hand, in the case of punitive detention, there is a sentence that is given to the wrongdoer on the basis of charges that have been proved in the court of law in a trial. This is done by means of punishment and includes institutional treatment deterrence, retribution and correctional factor in different degrees. To the contrary, preventive arrest can only be seen as a special or an extraordinary step that the state can take when compelling circumstances such as safety of the public, maintaining public order in the nation, and betterment of the welfare of India’s economy arise.
• The distinction between these 2 kinds of detention was again reiterated by the Supreme Court in the Francis Coralie Mullin case. It was observed by the Apex Court that in the event of exercise of the power of preventive arrest by an officer, an individual is detained based on mere suspicion and this is done with the objective of preventing him or her from carrying on any such action in the coming future that may be harmful. Additionally, he has a very limited contesting the action of the executive in such regard. It was also stated by the Court that keeping in mind this different nature of preventive detention, minimum restrictions must be there on the individual who has been so detained. 
• It has also been made clear by the court in Rajender Singh Pathania case that preventive arrest is only to be done when there is imminent danger or threat. The court observed that “S.151 should only be invoked when there is imminent danger to peace or likelihood of breach of peace under S. 107 CrPC.” 

The judgment was delivered by a division bench of Justice B.S Chauhan and justice P Sathasivam and they stated that such kind of arrest of an individual is only allowed in the cases where the police is fully satisfied that there is likely that there will be commission of an offence cognisable in nature by the person concerned. It was further stated that the police officer can arrest only if the design of the individual to commit an offence cognizable in nature comes to his knowledge. 

Moreover, the court placed emphasis on the role and action of the magistrate in such cases. It was observed that “if a proceeding being carried under S. 107/151 appears to be absolutely necessary to deal with the threatened apprehension of breach of peace, then in such a scenario, it is incumbent upon the authority concerned to take prompt action.” Thus, the Magistrate must act according to S. 107 under an emergency situation. 

• It is also well settled by the Court that this power of preventive arrest has been formulated with the objective of protecting the society. It was again reinstated that the very objective of these laws does not lie in punishing an individual; having done any wrong is only to intervene if he/she does something and prevent him/her from doing so. 

Safeguards for preventive Arrest under the Indian Constitution

Certain safeguards relating to the misuse of the provisions of preventive arrest are laid under Article 22 of the Indian Constitution. These include:

Limited time period

The first and foremost safeguard is the time limit for which the person can be so detained. In accordance with Article 22(4), the period of such arrest cannot exceed 3 months in the first go. In the event that this period is extended beyond the stipulated time, then the case has to be referred to the Advisory Board. Therefore, such extension of this defined period can only happen if the Advisory Board approves it.

However, by the power provided to it by Article 22(7)(a), “the Parliament may by law prescribe the circumstances under a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board.”

Moreover, as according to Article 22(2), it is necessary to produce such individuals before the nearest magistrate within a 24-hour time period. In addition, the concerned individual cannot be kept arrested more than this time period without the authorization of the Magistrate. 

Knowledge of the grounds of the order

The second safeguard is provided under Article 22(5) which states that an individual must be made aware of the grounds as to the order made for his/her detention. However, the state, under article 22(6), has the power to refuse to disclose such grounds if the public interest compels them to do so.

Opportunity for representation against detention

Article 22(5) also lays down the third safeguard i.e the detained individual must be provided all opportunity for making a representation against the order of such detention. 

Recording Reasons

It is an important condition in the exercise of power under S. 151 that preventive arrest can only be done in cases where the officer believes that the offence cannot be prevented using any other method. Therefore, it is crystal clear that any violation of the conditions laid down under the section will lead to breach of the fundamental rights of an individual that Article 21 and 22 of our Indian Constitution provide. Thus, in case of invocation of this power, it becomes imperative for the police officer to record reasons regarding the knowledge of the design of the offence so anticipated. 

• 41A shows the intention of the legislature to protect the rights of an individual alleged to have been committed an offence, and therefore, it is the police officer’s duty to act in a more responsible manner in cases where individuals are arrested even before the actual commission of any crime only on the basis of preventive actions of the State.

Hence, it is essential for the officer in charge to be always conscious of the very fact that any arbitrary action from his side will have the effect of violating the fundamental rights provided by Article 21 and Article 19(1)(d).

Constitutionality of Preventive Arrest Laws

Preventive Arrest Laws are arguably those particular sets of laws which are at the forefront of conflict with an individual’s liberty and thus with the Constitution of India. Balancing the interests of the Society, the individual and at the same time, keeping a check on the Leviathan State, strikes at the very core of Preventive Arrest Laws. 

The law of arrest has two sets of interests to balance. One is an individual’s rights and the other is the individual’s duties. Whenever this law is invoked a crucial decision that has to be made is what comes first whether it is the society or the criminal, the law abider or the law violator. 

The Supreme Court of India through its landmark judgment in the case of Joginder Kumar v. State of U.P., has delineated the evolution and working of arrest laws within the constitutional arena. The Court noted that it is true that the horizon of individual rights is expanding however it also observed that the rate of crime is also increasing. The Court maintained that a realistic approach must be observed to achieve a balance between the two competing interests. 

The Court attempted to reconcile these two competing hostile interests and develop a balance between them. Relying on the landmark case of Nandini Satpathy v. P.L. Dani the Court noted that ‘the emphasis between effective crime prevention and protection of constitutional rights might shift depending on the circumstances.’

Further, the Court stated that it is imperative that an appropriate justification must be furnished by a police officer as to why the arrest was made in the very first place. Further observing that arrest can potentially cause irreparable harm to the being of a person the Court laid down that to protect the constitutional mandates bestowed on an individual it is necessary that a reasonable satisfaction must be reached regarding the bona fides of the reasons or arrest or the complaint itself. This landmark case thus laid the foundation for arrest laws in India and was the first attempt by the Judiciary to devise how Arrest laws shall function in tandem with the Constitution of India. 

In Joginder Kumar the Court held that an individual’s freedom must yield to the greater interests of the State and its security. Relying on the maxim “salus populi suprema lex” (the supreme law is the safety of the citizens) and “salus reipublicae suprema lex” (the supreme law is the safety of the state) the Court stated that these interests coexist in a democratic setup. In order to ensure that a balance between a citizen’s constitutional rights and the State’s duty to curb crime is maintained, the Court gave certain directions too. 

Furthermore, relying on the landmark judgments on Arrest laws, the Apex Court in Ahmed Noormohmed Bhatti v. State of Gujarat held that §151 of the Code of Criminal Procedure, 1973 is constitutional. The Court held that merely because there exists a scope of abuse by the State it does not render the entire §unconstitutional. The Court held that: 

“A mere perusal of §151 stipulates the conditions under which a police officer may arrest a person without an order from a Magistrate and without a warrant. Such an arrest can only be made if the officer comes to know of a design of the person concerned to commit any cognizable offence. Moreover, such an arrest must be effectuated only when the commission of the offence cannot be otherwise prevented. Sub-§(2) further lays down that the period of detention shall not be for a period exceeding 24 hours. The §further provides that the detention thereafter if required cannot be under §151 of the Code but has to be under the relevant provision of the Code or any other law for the time being in force as the case may be. The provision by no stretch of imagination can be said to be either arbitrary or unreasonable or infringing upon the fundamental rights of a citizen under the Constitution.”

The Court emphasized that these statutory conditions have to be read with the directions of the Apex Court in the case of Joginder Kumar and D.K. Basu to assure that the dignity of the arrestee is maintained. Hence the view of the highest Court has been to balance the two competing interests and not letting one turn hostile towards another. 

Therefore, the Courts have through judicial precedents tried to break down the functioning of the Preventive Arrest Laws in light of the Constitutional mandates and human rights spectrum. The balancing approach of the Court has been observed in multiple cases and is the present jurisprudence of the Indian law on Arrests. 

Concluding remarks 

Hence, what we observe is that the Courts have always had the mindset that in the interests of the Security of the nation, individual rights will have to give way. Throughout judicial precedents as analyzed above, the Courts have observed a realistic approach and have tried to carefully balance the two competing interests in the welfare setup of the Indian Constitution. 

By setting guidelines and diktats, the Courts have actively tried to mitigate the concerns of the individuals who hold the view that personal liberty is always at threat due to these laws. Law cannot operate in abeyance; the Courts can keep giving diktats however when state functionaries themselves fail to take into consideration these guidelines questions of grave importance arise. The Constitution of India and the Arrest law cannot be allowed to go hostile to each other as both are crucial for the proper functioning of the state.

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