This article is written by Shubham Sharma and Idhaant.
The laws of preventive detention have come under a great deal of scrutiny within the democratic and judicial framework of India. India is one of the few democratic countries where the application of such laws coexist with the scheme of fundamental rights enshrined in the Indian constitution.
The Preventive Detention laws were first introduced in 1950 and are still considered one of the most controversial laws till date. The concept of preventive detention simply means that if the government or any governing authority finds a person suspicious of committing an unlawful activity or against the national interest he or she may be detained in prison and without giving them a reason for the arrest. The general understanding of such laws is based on retrospective operation. In this article, the discussion will be based on the working of the laws of preventive detention in context with the important fundamental cornerstone provisions enshrined in the constitution through careful analysis of past and recent judgments.
The law of preventive detention
The concept of preventive detention is to incarcerate a person on the assumption that their release will eventually lead to the commission of anti societal activities. Unlike the usual legal proceedings where a person is punished for committing a criminal act, the working of this provision is based on taking a preventive measure.
The Supreme Court of India held the same reasoning in a smuggling case by quoting the Bench in the landmark case of Rex v Halliday(1917 UKHL 1). The basis of the particular judgment was stressed on taking a precautionary measure instead of a punitive one.
The state has often contended that these laws have an instrumental purpose of safeguarding the internal security of the state including maintaining public order. Other grounds for detaining an individual without trial may include the preservation of essential supplies and foreign affairs and interests of India.
The first clause of Article 22 expresses that a person shall be informed of the grounds on which he has been arrested and he cannot be detained without the disclosure of the same. The right of the accused to be produced before the magistrate is ensured by the second clause of the article.
Article 22(3)(b) states that whoever has been arrested under preventive detention laws will be excluded from getting protection under Article 22(1) and 22(2).
There have been other theorists who criticize the view of the state because this law is arbitrary and unjust towards citizens. Curtailing a person’s freedom and right to life and liberty is violative of Article 14, 19, 21. The laws of preventive detention have no intelligibility and give wide discretion to government officials to arrest whomever they want for an indefinite period.
Safeguards under Article 22
Various clauses of Article 22 guarantee rights and assurances to the accused.
Article 22(4) provides that a person shall be taken in custody for a maximum of 3 months, if discretionary powers of detention are extended, it shall be subject to the approval of the advisory board. (1)
The detainee under article 22(5) has the right to be informed about one’s arrest and to get legal representation at the earliest of opportunities.
This was reaffirmed by the judgment Abdul Karim v. State of West Bengal (2) where it was held that these rights were valuable constitutional rights and not a mere formality.
In Hem Lall Bhandari v. the State of Sikkim (3), the Supreme Court, laying out the mandate of police officers under preventive detention laws in strict terms, held that
“It is not permissible, in matters relating to the personal liberty and freedom of a citizen, to take either a liberal or a generous view of the lapses on the part of the officers. In matters where the liberty of the citizens is involved, the officers must act with utmost expedition and in strict compliance with the mandatory provisions of law. Expeditious action is insisted upon as a safeguard against manipulation.”
The concept of preventive detention has made its way through a long journey via various acts and rules. The term was first introduced in early Britain during the period of the first and the Second World War through The Defence Act according to which it could detain anybody on the pleasure of the Home Minister. At this time preventive detention laws were not present in any country including the United States. (4)
In pre-independence India, the Emergency Defence Act, 1939 was introduced to remove the deterrent aspects of the society during the period of emergency and World War.
Fast forward to mid 20th century these laws were introduced in India by the preventive detention act of 1950. The enactment of The Preventive Detention Act in 1950 was regarded as an incongruent measure by many considering many leaders of independent India languished in jails on the premise of these provisions.
The A.K Gopalan v. State of Madras(5) is a landmark judgment with regards to this statute as this judgment showed how the government would further abuse its power for its political gains and this lead to detaining of many political leaders. The constitutionality of the act was challenged, but the Supreme Court finally held the act as constitutionally valid. The act was abolished in 1971.
Under the prime ministership of Mrs. Indira Gandhi, the Maintenance of Internal Security Act (MISA) was enacted which gave indefinite powers to the central govt. It was argued that this provision was gravely misused by the government during the imposition of emergency in 1975 till 1977.
The repeal of this act was soon followed by the enactment of another. The National Security Act was passed in 1980 by the then-elected PM Indira Gandhi. This act continues to exist till date and numerous instances of misuse have been reported before the judiciary. The NSA act was another controversial act with many loopholes in the statute. Section 13 of the act expressly paved the path for preventive detention for 12 months if a person was a threat to public order and also gave the government to modify the sentence.
Additionally, the provisions, such as Section 11(4) in the NSA and Section 8(e) in the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 forbade the detainee from getting the aid of legal assistance and which prevented the detainee from appearing before the advisory board constituted under Article 22 by way of a legal practitioner. (6)
The Terrorist and Disruptive Activities (Prevention) Act, TADA was first introduced in 1985 during the insurgency in Punjab. The act came into force to combat terrorism and to deter anti-social elements that would become a threat to the nation.
Subsequently, the Prevention of Terrorism Act (POTA), 2002 an act similar to TADA was introduced keeping in mind the 9/11 attacks and the parliament attack, in 2001. It attempted to formulate stringent provisions for maintaining the integrity and security of the country.
Unlawful activities prevention act was introduced in 1967 but gained much importance in the 1990s after the Babri Masjid incident and communal riots.
The preventive detention laws are still date being used by the government in power to curb the deterrents of society.
Preventive detention laws – a reign of terror?
The preventive detention laws in the present day scenario are used as a trump card for the executives to detain any person whom they may consider as a threat to the security of the nation. The grant of such explicit powers to the parliament and the state legislature has put immense pressure on the interpreters of the constitution. As discussed before, the constitution does provide some protection against the arbitrary exercise of preventive detention laws.
However, there are clauses in the same article which can also deny the same right to an accused detained under this law. For example, article 22(6) denies the individual the right to disclosure his grounds of detention. This proviso stands in dissonance with clause (5) of Article 22.
The government is further empowered in cases where it can further extend the detention period of three months without the opinion of the advisory board under Article 22(7). Considering the petitions of habeas corpus challenging NSA, between 2018 and 2020, 73.5 percent of them were found as incorrect decisions, and detainees were held on wrongful grounds as held by the court. Therefore, there have been various instances of wrongful detention which are found to be arbitrary and unjust.
The court had, in the case of Maneka Gandhi v Union of India (7), widened the scope of the expression ‘personal liberty’ by noting that article 21 did not exclude article 19 from its purview. It further asserted that any statute which tends to deprive the personal liberty of a citizen will be left at the mercy of Article 21 and Article 19.
The case of A.K. Roy v. Union of India (8), laid down the principle that in cases where the government may use a legal practitioner, the detainee shall not be denied the use of legal aid as it would be violative of parity and article 14 of the Indian constitution.
The Court in the case of Nand Lal Bajaj v State of Punjab and Anr(9) firmly held that the fundamental scheme of parliamentary arrangement conflicted with the preventive detention laws. It inferred its reasoning on the basis that this is the responsibility of the statesman. This particular case law declared that frequent judicial intervention in such cases could be considered as encroachment into the space of legislature and executive.
Nevertheless, the SC in Rekha v State of TN (10) asserted that this provision was repugnant to the ideas of rule of law and the democratic ethics on which the foundation of the Indian constitution is set on.
The case of Shri Pawan Kharetrilal Arora v. Shri Ramrao Wagh &others(11) highlighted the gross infringement of fundamental rights provided to a citizen. It was held by the Bombay high court that the detaining authority had committed a serious mistake by wrongfully confining the individual for 9 months based on 24 bogus cases. However, the judges of the high court in the same judgment took into account the apology issued by the authority and held that even though the grounds of confinement depended on gross nature of mistakes and the detaining authority committed a serious mistake which stuns judicial conscience, it acknowledged the apology by the authority and held that the authority acted under some basic honesty and was allowed protection under this section 16.
The apex court was of the opinion that these laws were not entirely unlawful and inconsistent, yet the intensity with which they are applied must be restrained within very narrow limits.
Certain recommendations were made by United Nations Human Rights Council with regards to the preventive detention laws in India. – (12)
- The inhuman treatment and torture given to prisoners must be stopped.
- The detainee must be given a right to be represented by a legal counsel.
- The detainee must be immediately informed about his arrest under Article 9(2) of the International Covenant on Civil and Political Rights. It provides that anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him”.
- Further in cases of wrongful detention, compensation shall be provided following Article 9(5) of the ICCPR which provides this as a right to all individuals.
- The executive-controlled advisory body may produce impartial decisions subjected to bias which would violate the ICCPR (Article 14)(1) and the Universal Declaration of Human Rights (Article 10) i.e. independent and impartial tribunal.
- The system of periodic reviews by the advisory board needs to be introduced.
The Indian legal system is filled with loopholes and the preventive detention laws take benefit of these fallacies. Certain amendments in these laws are deemed necessary to get corrective justice and to uphold a person’s basic freedom and liberty. These laws if not exercised with proper care will become a dagger murdering the notion of justice. The laws of preventive detention have no intelligibility and give wide discretion to government officials to arrest whomever they want for an indefinite period of time. The executive’s arbitrary exercise of power to suppress those who raise their voices against tyranny is completely against the notion of democracy.
- All You Need To Know About Preventive Detention,India Legal Live, https://www.indialegallive.com/is-that-legal-news/all-you-need-to-know-about-preventive-detention/
- Abdul Karim v. State of West Bengal, 1969 AIR 1028
- Hem Lall Bhandari v. the State of Sikkim AIR 1987 SC 762
- Shreya Malhotra , Preventive Detention Laws In India, IPLeaders(April.31,2021) https://blog.ipleaders.in/preventive-detention-laws-india/amp/
- A.K Gopalan v. State of Madras, 1950 AIR SC 27
- Jasir Aftab, Preventive-Detention-Laws-In-India-A-Tool-For-Executive-Tyranny,The Leaflet (May.1 , 2021) https://www.theleaflet.in/preventive-detention-laws-in-india-a-tool-for-executive-tyranny/
- Maneka Gandhi v Union of India AIR 1978 SC 597
- A.K. Roy v. Union of India AIR 1982 SC 710
- Nand Lal Bajaj v State of Punjab and Anr AIR 1981 SC 2041
- Rekha v State of TN (2011) 5 SCC 244
- Pawan Kharetrilal Arora v. Shri Ramrao Wagh &others Cr Writ Petition 545 of 2009
- Rudrasin, Preventive Detention and Constitution of India – Effect on Human Rights, LegalServicesIndia (April.30, 2021)
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