This article is written by Samyak Jain.

Abstract

Preventive detention imposed generally as an anticipatory measure and does not relate to an offence, while criminal proceedings are to punish a person for an offence committed by him. The main rationale behind the preventive detention is not to punish but to prevent the detainees from doing any criminal activity against the state. Preventive detention is something against the nature of the democratic state because of violation of the fundamental rights. Justice K.S. Puttaswamy (Retd.) V. Union of India case talks about the privacy, i.e., right to be alone. It talks about the increasing scope of personal liberty of individuals in terms of privacy. The major concern regarding preventive detention is that arresting person on mere suspicion is absolute violation of his inalienable right to liberty. There is a conflicting view regarding preventive detention between human right activists, who are in favor of liberty of the individual and exigencies of the state on the other side.  This balancing is of the utmost importance because there is a need to maintain momentum between human freedom on one hand and state’s obligations towards the national security. Just like other fundamental rights guaranteed by the Constitution, personal liberty is also not an absolute right. It can amount to certain reasonable restrictions which are imposed by state according to the law. But invasion of personal liberty by the state must follow certain basic requirements. Preventive detention is curbing liberty of an individual in an authoritarian way on the name of national security, and these types of laws need to be changed in order to secure fundamental rights of individuals. 

Introduction

Detention in its simplest sense means to curb the liberty of individual i.e. without the knowledge of that individual. This can be understood by a simple example, i.e., during a party, child causes nuisance due to which his father slapped him and locked him in a room to prevent from doing further disturbance. This is termed as preventive detention because, here, father detained his child in a locked room in view of preventing his child from further nuisance, as this is different from punitive detention, which awards to a person after commission of offence while the former will be awarded to prevent any person from committing act.  The basic difference between the two is that in case of preventive detention, it is anticipatory measure where the person did not commit any crime and detained only on mere suspicion for committing crime in future, while punitive detention is detaining a person for committing an offence. What thing here to ponder is contravention of fundamental rights in democratic state? The issue is that this act of detaining individuals on suspicion, likely to commit offense in future on the grounds of national security and sake of maintaining good foreign relations. This is a huge violation of fundamental rights as the state detained individuals for preventive measures, not for punitive measures. 

There are several legal instruments such as the Universal Declaration of Human Rights, 1948; European Convention on Human Rights, 1950 etc.is guiding principles in pre-trial detention, arrest and administrative detention. These conventions provide significant understanding of legal rules governing arrest and detention. 

Preventive detention laws in India

Parliament passed a legislation named Preventive Detention Act, 1950 which talks about the detention of a person on the grounds of defense, foreign affairs or the security of the state. The constitutionality of Preventive Detention Act, 1950 was challenged in the case of A.K. Gopalan V. State of Madras where a leader named A.K. Gopalan was detained in Madras jail from 1947. He was sentenced to various terms of imprisonment under ordinary law but every time sentence was set aside. In 1950, he served with a fresh notice that he was detained under Preventive Detention Act. He challenged the validity of the aforesaid act as this act of state of further detaining him is in violation of Articles 13, 19 and 21 and provisions of the act are not in accordance with Article 22 enshrined under the Constitution of India. The arguments by the defense counsel were that it curbs the liberty and also infringes fundamental rights guaranteed by the Constitution. The case was decided by 4:1 ratio, where majority does not recognize detention as an infringement of personal liberty under Article 21. Minority opinion was delivered by Justice Fazl Ali, which said that fundamental rights are not isolated and separate but protect a common thread of freedom and liberty. “Preventive detention, which is dealt with an Article 22, also amounts to deprivation of personal liberty which is referred to in Article 21, and is a violation of the right of freedom of movement dealt with in Article 19(1)(d)…” 

The Gopalan doctrine was again revisited in R.C. Cooper and Maneka Gandhi. Justice PN Bhagwati in Cooper affirms the dissenting opinion of Justice Subba Rao in Kharak Singh case and said that the term ‘personal liberty’ is a comprehensive one and the right to move freely is an attribute of personal liberty. There is no question of being carved out one fundamental right from another. Article 21 has many attributes and some of them found in Article 19(1)(d). In other words, Article 21 covers a wide range of rights, and some of them had protection under Article 19. 

The interrelationship between fundamental rights paved way for acknowledging privacy as a fundamental right in Justice K.S. Puttaswamy case by overruling MP Sharma and Kharak Singh case. 

Preventive detention laws in USA

Unlike the preventive detention laws as guaranteed by the Indian Constitution, US do not have any laws which prohibit preventive detention by the state i.e. not considered them illegally. The US congress has the power to detain individuals not convicted of crimes for preventive measures under the banner of national security.

Bail Reforms Act, 1984 talks about the procedure set for release or detain  individuals by the judicial officer if govt. by showing evidence that this has committed serious felonies or not. In the case of United States V. Salerno, constitutional validity of Bail Reforms Act, 1984 and 5th Amendment of Due Process was challenged when members of American mafia was arrested. By 6:3 ratio, Supreme Court held that the Act was constitutional because the government’ act of protecting community outweighs personal liberty of individuals only in cases when government able to prove that the arrestee posed significant threat to the community.

In Hamdi V. Rumsfeld, Yaser Hamdi, an American citizen, detained by the US military in Afghanistan and was accused of fighting for the Taliban against the United States government, declared as ‘enemy combatant’. Hamdi’s father filed a writ petition of Habeas Corpus, in an attempt to declare Hamdi’s detention as unconstitutional. The government countered that the Executive branch had the right against the ‘enemy combatants’ to restrict their access to the court. The questions arises whether the act of government by not providing access to an attorney, solely on an executive declaration that he was an enemy combatant, is a violation of Fifth Amendment right to Due Process by hold him indefinitely? And is it logical to agree with the government contention of ‘Separation of power’ doctrine? By 8:1 ratio, SC said that the Fifth Amendment right guarantees every citizen of the US as an enemy combatant had the right to contest the charge before a court. The SC rejected the notion of separation of powers theory because this prevents the judiciary from hearing Hamdi’s case. 

In Rumsfeld V. Padilla, an American citizen was arrested at Airport after returning from Pakistan in 2002. He was initially detained as a material witness against Al Qaeda terrorist network, but later declared as an enemy combatant by the Department of Defense under President’s constitutional powers as the commander in chief and the authorization provided by Congress for use of military force, meaning that he held in prison indefinitely without access to an attorney. 

The pertinent question in this case was whether Congress’s ‘authorization for use of military force’ gives authority to the President to detain a US citizen in the US on the grounds of ‘enemy combatant’. Here, US SC does not decide the case as it was filed improperly. This case was rejected by the SC and did not answer the jurisprudential question relating to powers of US President.   

Preventive detention laws in other countries

Preventive detention is an imprisonment that is justified for non-punitive purposes. Australia authorizes the preventive detention laws. Canada detains anybody which is declared by court a dangerous offender for an indefinite period of time.  In Germany, preventive detention can be imposed as part of criminal sentencing and to prevent serious offenders which poses threat to society from committing grave offences. In Japan, pre-trial detention can be extended to 23 days without charge. Increasing the length of detention is at the discretion of the public prosecutor. Malaysia enacted the Internal Security Act, 1960 (ISA) for legalizing preventive detention laws under legally defined circumstances.  New Zealand gives preventive detention to offenders aged above 18 years or who convicted over sexual or violent crimes. 

Merits and demerits

Preventive detention is the act of detaining someone who has not committed any act but on mere suspicion that he/she is likely to commit crime in future. Preventive detention has also pros and cons of its own. Detaining a person on preventive measures is justified for people with diminished responsibility or judgment. In cases where people are suffering from acute diseases such as mental illness. For example, if any individual under the influence of drugs or alcohol, had dementia or have the capacity to commit suicide. Then in these cases temporary preventive detention would prevent harm to that person. These are termed as merits of Preventive detention.

Demerits are termed as when detaining an adult of sound mind for an indefinite period of detention. It is problematic because it would involve violation of the right of personal liberty. In general, preventive detention is good because it prevents individuals from committing crime, but bad because it infringes fundamental rights. Just like two faces of a coin, preventive detention also has its own merits and demerits. It is on the legislature and executive to use it according to the law. 

Conclusion

John Stuart Mill in his essay, ‘On Liberty’ said “The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign”. While answering the question regarding the tussle between liberty and authority, Mill said that the authoritarian rule could be reined by the recognition of fundamental rights such as the right to privacy, free speech and expression, and right to assemble. 

John Locke in his book ‘Second Treatise of Government’ wrote that some inalienable rights are vested in an individual such as rights of life, liberty and property by the state of nature. The notion of alienable rights are also adopted by the constituent makers of United States and embodied such words in ‘American Declaration of Independence’ in the form of life, liberty and the pursuit of happiness. This notion is based on the principle that natural rights are inherent in nature and not made according to man-made law. 

Article 5(1) of European Convention on Human Rights, 1950 guarantees a person’s right to ‘liberty’ and ‘freedom’. Article 3 of the Universal Declaration of Human Rights guarantees “the right to life, liberty, and security of person”. According to the international conventions on Human rights, it is pertinent that their main focus is to preserve the personal liberty and also against the wrongful restraint of individuals. The above referred human rights conventions held that in all cases detention must be carried out in accordance with law, and not arbitrary. Arbitrariness is not equated with only ‘contrary to law’ but must be interpreted broadly in terms of inappropriateness, injustice, etc. In other words, detention must be according to the law, reasonable and also lawful. 

 Preventive measures

• For lawful detention according to Human Rights, it is necessary to be carried out according to the procedures by the rule of law and also free from arbitrariness.
• International human rights activists acknowledges that arrest and non-compliance with the lawful order of a court or in order to secure any fulfillment prescribed by the law does not amount to infringement of fundamental rights.
• Detention on mere suspicion is violation of fundamental rights and in general, personal liberty of individuals. 
• Detention is lawful in case of preventing flight i.e. in order to prevent a person from fleeing after committing crime.
• Deprivation of liberty or preventive detention is justified in cases of person suffering from mental illness in order to prevent him from harm. 
• Human Rights Committee prohibits detention of asylum seekers and for the purpose of extradition and deportation even in the case of illegal entry.
• Preventive detention is justified in order to maintain public order for reasons of public security. It is difficult to determine what exactly comes under the definition of public order. If preventive detention is ordered under the name of public order, it must be controlled by the law and according to the procedure established by the law and also not arbitrary in nature. 
• Detainees had the right to be informed of the reasons for arrest and detention under which they arrest and of the charges framed against that individual.
• Detainee had the right to present before the judicial magistrate under a reasonable time and also had the right to get the attorney or lawyer of his/her own choice.
• In the end, it is necessary to have an independent organ which is not in control of executive and known for giving impartial judgments, which is essential in determining fundamental rights.

Preventive detention Act, 1950 validates detention of individual in cases where exigencies of the state is concerned like in case of national security, maintaining peace and public order, foreign relations etc. Validity of the said act is challenged before the court in Gopalan case where it was evident that liberty of an individual does not count under Article 21. Preventive detention Act was repealed in 1969 and in 1974; Maintenance of Internal Security Act (MISA) came. Then National Security Act, 1980 came whose purpose is to provide preventive detention in certain cases. In 2002, Prevention of Terrorism Act (POTA) came, which provide discretionary powers to the investigating authorities for matters relating to terrorism. Later, in 2004 act was repealed due to its misuse nature and in view for protecting human rights. Justice Chandrachud in Justice Puttaswamy case gave three fold requirements in case of invasion of personal liberty of individuals- (I) legality, postulates the existence of law, (II) need, defined in terms of legitimate state aim (III) proportionality which ensures a nexus between the objects and the need to achieve them. So there should be a direct nexus between the object and invasion of personal liberty. 

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.