The term ‘Preventive Detention’ means to detain an individual so as to restrict or prevent that person from attempting to or commit to a crime. The basis of this arrest is mainly the suspicion of administrative authorities that some wrong actions are expected by the concerned person. According to Britannica, Preventive detention is the practice of incarcerating accused individuals before trial on the assumption that their release would not be in the best interest of society—specifically, that they would be likely to commit additional crimes if they were released.
India had a preventive detention law since a very long time, the records date back to the colonial period. The British rulers passed eleven laws carrying the intrinsic essence of preventive detention law, this included Rowlatt Act of 1919. Political dissenters were put behind even if a hint of ‘protest’ came to the authorities knowledge. Eventually freedom from the British rule was sought in 1947 and the Constitution was formally adopted in the year 1950.
It is very surprising to note, framers of the Indian Constitution, political leaders, people at the forefront of freedom struggle who suffered the most because of the Preventive Detention Laws, still paved way for Preventive Detention Laws in the republic, guaranteeing the same in Fundamental Rights chapter of the Constitution. Constitutional sanctity was given by framing the Article 22.
In the year 1950 itself, a Prevention Detention Act was put forth by Sardar Patel, while still being confused about whether such law was actually required. Today, in India, by virtue of Section 151 of Criminal Procedure Code, 1973 it is legal to arrest and make happen the detention of a person, without any warrant, to prevent the commission of a cognizable offence.
Object of The Preventive Detention
Preventive Detention is not considered as a measure to punish any person, rather it is a provision framed to prevent a suspect from doing an act which would amount to be prejudicial to the State. Preventive Detention is not ‘Arrest’. These two terms are entirely different and the common notion that it is the same should be cleaned off the minds of individuals. The main difference between the two is accusation of crime. Person can be ‘arrested’ only when he breaks law and order. A person can be ‘detained’ when he is suspected to do an act that might deteriorate the law and order and hence restricted from doing so.
An arrested person is arrested to be produced before a magistrate within the time span of next 24 hours from the point of arrest. Although a detained can be kept in detention till time period of three months. It was held in Mariappan v. The District Collector& ors.[i]that the sole object of detention and the detention laws, is not to punish anyone, but, to prevent the commission of certain offences. The concept of detention is not a legislative procedure described one. Mere satisfaction of concerned authority to detain a person is sufficient- held in Ankul Chandra Pradhan v. Union of India[ii]. Again, ‘satisfaction’ is very subjective in nature and in this case, not barred by some legal standards. This satisfaction can be met with respect to any of the grounds-
- Security of the State,
- Maintenance of Public Order,
- Foreign affairs,
- Services essential to the community.
A person may be detained for three months without trial on any or all of the above grounds.
Preventive Detention and Constitution
The Article 22 in The Constitution Of India 1950, plays a very vital role in understanding the position of ‘preventive detention’ as a provision in India. So, the clause (1) and (2) of Article 22 guarantee a defense lawyer to the arrested individual and appearance before the magistrate within a period of twenty four hours but as per the clause (3) the above provisions will not be applicable to a person detained under any law providing for preventive detention. As per the clause (4) detention of a person for a period of three months subject to if an Advisory Board reports that there is no sufficient cause for detention. According to clause (5) it is legitimate for a person to be detained by way of an order under any detention law, it is also essential for such order to be communicated and representation to be granted. As per clause (6) no authority shall be bound to disclose the facts behind the order of detention of a person. The clause (7) prescribes that under circumstances, Parliament may issue the the class or classes of cases for which a person shall be held in detention for more than 3 months.
According to the Constitutional 44th Amendment Act 1978, Article 22 has been amended now. The maximum period for which a person may be detained without obtaining the assent of the advisory board has been reduced from three to two months.
It is interesting to note that in the case of Sambhu Nath Sarkar v. State of West Bengal[iii], pointed out that the Section 17A of the Maintenance of the Internal Securities Act 1971 stated- preventive detention could be applied for more than three months without any kind of reference to the Advisory Board. The Hon’ble Supreme Court held the provision of Section 17 unconstitutional. The Court confirmed that Article 22(7) (a) was an exception to Article 22 (4).
The nature of preventive detention has been explained by the Supreme Court in the case of Khudiram Das v. The State of West Bengal and ors.[iv] “The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community.”[v]. The prevention detention Act of 1950 was the first formal legislation, introduced in favor of the concept.
In the case of A.K Gopalan v. State of Madras[vi] the validity of the various provisions of the Preventive Detention Act, 1950, the invalidity of Section 14 of the Act was confirmed and it was said that it did not affect the validity of the Act.The Court also held that the Article 21 of the Constitution could not be left to the Courts to determine that procedure laid down by the legislature was proper and just; it was just guaranteed that whatever procedure was laid down should be properly observed.The Court also held in Ahmed Noor Mohamad Bhatti v. State of Gujarat[vii] that the power of police obtained by way of Section 151 of the Criminal Procedure Code, 1973 cannot be held unreasonable as arbitrary merely as the officials have a good chance to abuse such authority.
Preventive Detention and Human Rights
A very few country practice preventive detention without any safeguards during non-war times, India is one of them. It is not a well known or popular practice and condemned because it does not make justice to the basic fundamental rights, to the principle of ‘audi alteram partem’.The European Court of Human has stated, numerous times, that the preventive detention followed Indian Constitution is illegal under the European Convention on Human Rights.
The South Asia Human Rights Documentation Centre (SAHRDC), has also recommended India to delete provisions in Constitution of India making preventive detention so easily accessible to the people in power. The detainees are denied the rights to representation, cross-examination, review, access to the Courts, and this is not only unethical but also dangerous.
The Article 4 of the International Covenant on Civil and Political Rights (ICCPR) ratified thoroughly in India permits an active removal personal liberties during the state of emergency. In spite of which the government cannot invoke this privilege, mainly because the situations necessary in Section 4 are not the current situations in India. On detention, instances of inhuman treatment of prisoners have led to revolution of strict Human Rights Laws.
The Universal Declaration of Human Right sand the National Human Rights Commission has put forth measures and directives to regulate the procedure of Preventive Detention for betterment and not abuse it free handily. The below mentioned points need to be taken into consideration
- A very precise and Detailed recording of facts so as to satisfy the authority without any doubt.
- The need for personal liberty should also be sensitized.
- A basic need for interim relief/compensation.
- Psychological help to detainees.
Thus, it can be concluded that people actually responsible to work under the laws like Maintenance of Internal Security Act (MISA)for promoting National Security or Public order should single handily decide how people should be detained and on what basis. Although It has always been the Court’s opinion that detention of people without granting them fair trial hinders the basic ideas and pillars of what our Government and Judicial system stands for.
Mere expectation/suspicion of anti social activities can never stand as a sufficient or adequate reason to intervene with the personal liberty of the citizens that is guaranteed to them by the Constitution.Legal procedure and mandatory requirements hold a very high weight-age as far as the Indian legal system is concerned, because it is widely quoted that if a guilty is mistakenly set free it is not a problem but an innocent should not be given unfair justice/ treatment.
- What is the meaning of Preventive Detention?
- What is the scope of Article 22 in Indian Constitution?
- What are the probable safeguards against Preventive Detention?
- What is the stand of global forums against Indian Preventive Detention laws and policies?
- What is the object of preventive detention as a legal provision?
[i]H.C.P.(MD) No.244 of 2014
[ii] AIR 1997, SC 2814
[iii]Supreme Court of India Judgement Cited In 1973 AIR (SC) 1425, 1973 (79) CrLJ 1155, 1973 CrLR(SC) 424, 1973 (1) SCC 856, 1973 SCC(Cr)
[iv]1975 AIR 550, 1975 SCR (2) 832
[v] Khudiram Das v. The State of West Bengal and Ors, A.I.R. 1975 SC 550.
[vi]A.K Gopalan v. State of Madras, A.I.R. 1950 SC 27.
[vii]Appeal (crl.) 109 of 2001
Constituent Assembly Debates (Delhi: Lok Sabha Secretariat, 1946-50), Vols. 12.
Constitution of India (As Modified upto the 15 August 1983), (Government of India, Ministry of Law, Justice and Company Affairs).