This article has been written by Badal Singh.

Introduction

“There is nothing more foreign to a civilized and democratic system than to preventive detention.”

– Robert Bourassa

The Constitution of India carries the conscience of the Constitution-makers and the common people, reflects the form of society that needs to be adopted, the rules to be followed, the obligations to be performed and the rights to be enjoyed without any sort of interference and disruptions. Among the rights granted by the supreme authority of the nation, the fundamental rights are the basic and prime ones that can be enjoyed by each citizen of the state and any infringement of these rights are subject to judicial review. There are exceptions to these wherein the state can suspend any of them in matters of state security, the sovereignty of the nation or for the maintenance of the public order. The problem arises when the private and basic human rights of the individual are infringed and a very serious question as to what extent the state can interfere in the life and rights granted to the individual arises.

India being the largest democracy grants liberty to its individual through Article 21 and 22 in the form of personal liberty and preventive detention. The rights granted in Article 21 and 22 of the Constitution are the ones that face the maximum heat of being infringed. The right to life and personal liberty granted by Article 21 of the Constitution goes hand in hand with Article 22 as both talks about the liberties provided to the citizen and some of the exceptional circumstances under which these rights are unavailable or restricted. 

Liberty is itself the gift of the law and may by law (be) forfeited or abridged. This statement by Justice A.N Ray sums up the meaning and scope of liberty provided to an individual in India. When required, the state can restrict liberty up to any extent as it may deem valid, but only through the correct and ethical interpretation of the law. Whether the interpretation is fit or not, whether appropriate scrutiny has been done over the impediment of such rights, or whether the restriction is arbitrary in nature is a matter of great apprehension.

Article 22 of the Indian constitution deals with the Protection from Arrest and Detention. The first part of this article confers certain rights to the individual such as the knowledge of ground of arrest, right to consult and to be defended by a legal practitioner, right to be produced before the magistrate within 24 hours of arrest (excluding the journey time) and right to be released after 24 hours unless the magistrate authorizes further detention. These rights aren’t granted to an alien or a person detained under the preventive detention laws. The second part deals with such preventive detention laws and is mentioned in the sub-clause 3 of Article 22. 

This article acts as a boon for the stakeholders to prohibit activities that could disturb the peace of the nation or would be dangerous for the sovereignty of the nation. At the same time, the stakeholders can use the same laws to oppress the voices and wrongdoings, thus curbing the freedom of speech and expression granted by the constitution. Thus, this article of the Constitution being so significant can also be paradoxical and a matter of debate.

Article 22: Perks, Provisions and Repercussions.

After 300 years of the devastating and dismal British era, India gained independence on 15 August 1947 and nearly after 3 years of independence, with the deeds of the constituent assembly, the constitution of India was framed and adopted by the people of India. The Constitution of India, the largest written text of its kind, is the supreme law of land and consists of all the provisions through which law and order is maintained within the state and in state affairs. The Constitution also envisages six different types of fundamental rights within itself. Among those fundamental rights, the right to preventive arrest and detention is given in Article 22 of the Indian Constitution. The crux of the given Article is that no person shall be denied the ground of his arrest and his right to consult a legal practitioner isn’t exhausted as well. 

The Article also stipulates a time period of 24 hours (excluding the travel period) within which the arrested individual needs to be presented before the magistrate and no person should be kept in custody beyond the said period without the authority from the magistrate. But there are certain exceptions given in the article and under such circumstances, individuals can’t avail the existing rights under the first and second section of the article. Section 3 of the article says that these rights can’t be availed by enemy aliens or the individuals detained under the preventive detention laws. 

Also, Section 151 of the Criminal Procedure Code, 1971 grants a police officer the right to a police officer without the order of a magistrate or even without a warrant letter, merely on a suspicion that an individual is in a position or condition to commit a crime. Now, we need to focus on what preventive detention laws are, and what are the significances and consequences of such laws.

Preventive detention laws are the set of rules and statutes that allow the state and its authorities to detain an individual or a group of them under suspicion that the individual would commit any cognizable offence under the law and would be a threat to the sovereignty of the state, instability of the society or dismantling of the public order. 

The arrest under such provisions of the preventive detention laws is known as “preventive arrest”. Preventive detention laws are generally designed to grant the state swift decisions during times of emergency and dire need. The importance of these laws was understood and upheld by the constituent assembly as they considered these laws proficient enough to be included in the ambit of fundamental rights. 

But the authorities granted to the state and its agencies isn’t absolute and is subject to certain conditions and speculations. Section 4 of the article states that no person under the provision of preventive detention laws can be detained for more than 3 months unless it is so prescribed by an advisory board consisting of persons eligible of being a judge of high courts, provided that nothing in this sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or if such person is detained in accordance with the provisions of any law made by Parliament under subclauses (a) and (b) of clause (7). 

Also, the authority detaining an individual has the duty to inform and make available a legal representative available as per clause 5.

The law seems quite a crystal clear and transparent in nature. But it is not what it looks like and there arises a lot of debates on the provisions envisaged in clause 7 of article 22. It provides the powers to the parliament to make the laws in case the detention is more than the prescribed period of three months and the absence of a recommendation by the advisory committee.

According to the same, it is the parliament that decides the extent of time that an individual can be detained, under the preventive detention laws and also the procedure followed by the advisory committee is to be decided by the parliament. This gives absolute power to the parliament. Sometimes, it can take arbitrary decisions that can be against the consensus of the public at large. It can infringe with the right to speech and expression and right to life and personal liberty of individuals, even without committing any offence and only if he/she goes against the will or expectation of the ruling party in the state. 

In this way, a single clause of Article 22 can lead to the dismantling of the golden trilogy, i.e., the rights granted to an individual under Article 14,19 and 21 of the Indian constitution. The authorities can even deny the grounds of an arrest taking an excuse as the fact being against the public order as per clause 5 of Article 22. Democracy as said by Lincoln is a form of government of the people, by the people and for the people. The whole crux of democracy lies within the people living in the state and the rights they enjoy without any kind of interference or infringement. 

The arbitrary laws which infringe such rights without any reasonableness or rational nexus between the act committed by the individual and the sanctions faced by him, act as a blot on democracy and degrades the notion as to why democracy is practised.

Preventive Detention Laws: history and developments

The constitution provides the framework through the help of which the rule of law within a state is followed and made to follow. Apart from the constitution, there are certainly other sources of legislation such as the IPC, CrPC and CPC which deal with the criminal and civil justice system of the country. Laws vary according to their nature. Some of them are enabling whereas the remaining are restrictive. 

Preventive detention laws are generally restrictive in nature and curb the rights to freedom of speech, movement, expression and liberty. These laws authorize the state with the power to detain an individual without filing a case by anyone or without any offence being committed by that specific individual. 

These detentions are protective in nature and allow the state and the concerned authorities to prevent the crime from being committed. If the state has a presumption that an individual could be a threat to the peace and stability of the society and there exists no other applicable means to prevent such mishap, the state as per the law made and envisaged by the parliament in consensus with the concerned articles of the constitution, can arrest and detain an individual without a trial for a reasonable time limit as discussed above.

The history of preventive detention in India dates back to the colonial era. During the regime of the East India Company in India, laws such as the Rowlett Act (1919), Bengal Criminal Amendment Ordinance and Defense of India Act, 1939, envisaged the provisions of preventive detention. These acts allowed the authorities to detain anyone on just a mere suspicion and no reasonable nexus needed to be established between the arrest and reasoning behind the arrest. 

The British regime used these provisions to oppress the protestors and the revolutionaries to a much greater extent. These laws provided a pathway for dictatorship in prevention of maintaining the rule of law. Whenever things went opposite to that of what the Britishers expected, they would take the support of such stringent and arbitrary legislations to hide behind and contravene the rights of the common individuals. Primarily designed to have strict control over the unruly elements of the society, these laws during the British regime created a legal escape for the contemporary authorities, for all the wrong deeds and violations of basic rights.

After independence, the drafters of the constitution had many discussions and debates about whether the preventive detention laws would be included or not. The assembly with a common consensus agreed to include provisions related to preventive detention in the fundamental rights of the constitution as they deemed its inclusion necessary for the protection of the sovereignty of the nation and avoid any kind of hostility or mishap. 

The first preventive detention law in India was passed in February 1950 by the parliament of India. This law lasted for a time period of 21 years, i.e., till 1971, and then was abolished. Before being abolished, the applicability of this case was observed in the A.K Gopalan v. State of Madras. 

In the end, the validity of this case was upheld by the supreme court, with the exclusion of some of the provision. Afterwards, the country formulated a lot of preventive detention laws in different stages of post-development but the provisions that were provided in such rules were almost similar. 

The Unlawful Activities Prevention Act (UAPA) was another preventive detention law implemented in 1967. This act provides for provisions that help in dealing with the terror activities and curb the actions that pose a threat to the sovereignty of the state. The act has been amended multiple times as per the need of reinforcement in relation with the situation of the society. 

The last amendment which took place recently in the year 2019, gave the government to declare an individual a terrorist on mere suspicion by the officials believing it to be so. Initially, the provision was only for the groups and organizations which came under the ambit of terrorism. Also, after the Prevention of Terror Activities Act (POTA) and Terror and Disruptive Activities Act (TADA) was repealed, their provisions were included in the UAPA through an amendment done in the year 2004. This made UAPA an act with stringent regulations that the authority could use in cases such as the terror attack that occurred on 26th November 2007. But the same act can be used by the state to impose arbitrary restrictions on individuals without much scope of justice and judicial trials.

Another preventive detention law that has been in the public eye in recent times is the Public Safety Act of Jammu and Kashmir. Designed for action against the timber smugglers within Jammu and Kashmir, this Act was introduced by Sheikh Abdullah in the year 1978. And in the contemporary situation, after the abrogation of Article 370 from the Constitution, it was his son Farookh Abdullah who had to face the heat of this provision. 

He was detained by the NDA government under suspense that letting him free would initiate riots and conflicts in the state of Kashmir, leading to chaos in the society and internal disturbance within the nation. But was his and Mehbooba Mufti’s detention ethical? Rather than ethical, the question that needs to be raised and scrutinized is whether the detention was valid as per the doctrine of justice and was the detention not in violation of the basic fundamental rights that are needed to be abided by. These questions arise in the context of all the existing preventive detention laws different parties portray differently, sometimes conflicting opinions. 

Preventive detention law: a matter of contention

No subject matter is universally accepted with the same reasoning. The facts and point of views differ from person to person. Each of them carries definite reasoning and connects it with a reasonable nexus to support their point of view. The thing that has to be paid attention to is whether the reasoning that has been provided is valid and feasible with respect to the present scenario of the society. 

Also, the counter-arguments provided by the party against, should also be considered and the prominent should be implemented in the behaviour and in the working mechanism of the society. The same is the situation regarding the preventive detention laws’ inclusion amongst the governing statutes. 

The virtuous and the intellects of society don’t have the same opinion regarding such laws. Some think that these laws are just a few arbitrary provisions that the state and its authorities use to curb the rise of any expressive thoughts that could be derogatory for the existing sovereigns or to halt the exercise of basic fundamental rights of an individual if he does anything in contrary of what is just and beneficial for the existing rulers and democrats. 

These people just believe that these laws are against the basic doctrine of the Constitution. Laws are from and for people, and not the people are from laws. And such stringency that disallows and disdains such freedom of life, liberty, expression and equality of citizens shouldn’t be declared valid. 

The absence and flout of such laws in the advanced foreign nations like England and other European nations provides advocacy to the views of the individuals who are against the preventive detention laws. Since these provisions provide for arrest and sanctions against individuals without even the commencement of crime, they are not in correspondence with the norms of the Constitution. 

This is not how justice ought to be delivered and is against the public policy and norms of humanity. Mihir Desai, a senior advocate says that these preventive detention laws allow the state to carve out exceptions for its lawlessness.

The state can to curb any existing dissent or dissenters, charge individuals under such laws, which otherwise they wouldn’t have been able to, through any other source. Therefore, some people believe that such laws don’t stand any chance of existence and are outdated and against the terms of democracy.

Amidst such dissenting opinions regarding the preventive detention laws, there are a considerable number of people who think preventive detention laws are a very vital set of legislations that help in preserving and protecting the sovereignty of the nation and its people. India, being a multi-religious, multi-ethnic and multi-cultural country, consists of people of different faiths, carrying diverse identity and following varieties of norms and traditions. And when any contradiction arises, it gives rise to conflict amongst the groups. 

Therefore, Indian society is always vulnerable to riots and religious conflicts. To avoid such mishaps, it is vital for the state to have stringent provisions to control and prohibit the commencement of any sort of disservice. Also, terrorism is one of the major areas of concern for India and the government spends a huge part of the annual part in safeguarding the country from terrorists and terror activities. 

Preventive detention laws provide a helping hand to prevent such activities before occurrence and thus maintain the peace and stability within the state.

 The supreme court in the case of AlijanMian v. District Magistrate, Dhanbad set forward a difference between criminal proceedings and crime. It stated that criminal proceedings refer to punishing a person who has committed a crime, but preventive detention in itself isn’t a crime. 

In Anil Dey v. State of West Bengal, the Supreme Court held that “the veil of subjective satisfaction of the detaining authority cannot be lifted by the courts with a view to appreciate its objective sufficiency”. Although the courts “cannot substitute their own opinion for that of the detaining authority by applying an objective test to decide the necessity of detention for a specified purpose, they do review whether the satisfaction is “honest and real, and not fanciful and imaginary”.  It is thus advised by the court to the judicial authorities to use its virtue while detaining anyone under any law and such detainment can always be the subject of review and objectivity tests of the court.

Conclusion

Article 22, although not perfect and ideal, was included in the Constitution after tons of debates and arguments among the members of the constituent assembly. The Constitution provides for basic freedoms to each of its citizens and they are provided with the rights to enjoy those freedoms without any infringement. But these rights are to be enjoyed to an extent only up to which the rights of others aren’t infringed. 

Therefore, one must have mutual respect for the rights granted to others as well. Similarly, the state must also portray respect to the rights which have been granted by the rule of law to the citizens. 

But sometimes for the sake of preservation of rights of a huge mass, the state should also have the rights to curb some of the rights granted to some of the individuals, specifically those individuals who have the capacity to disturb the mechanism of the society. Preventive detention is equally important for the nation as the other essential laws. It is a wicked sine non qua. 

It is like a medicine with some side effects, but if the body has to be maintained in proper working condition, then it must be accepted with its side effects. The provisions of these laws are held up by the supreme court and it has found it justifiable on each and every ground. The only ground that creates controversies is the unjust and irrational use of such provisions by the state for personal benefits. 

But what about a country where thousands of individuals each year are detained without a just justification by the authorities and an effective trial? The role of the judiciary comes into the picture under such scenarios. Also, the effectiveness and transparency of the advisory committee that decides on the further detention of the individual is equally important. Any kind of corruption would lead to the monopoly of the state. As said earlier, preventive detention is a hard pill to swallow. And it is actually a way to protect the rights of the public at large, even if the rights of some individuals have to be infringed.

References

• The Constitution of India, 1950
• The Criminal Procedure Code, 1973

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