08 Nov

Preventive Detention Law & Associated Issues

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Contents

• What is Preventive Detention?
• History of Preventive Detention Laws in the country
• Constitutional Provisions regarding Preventive Detention in India
• Other Constitutional Provisions
• National Security Act, 1980
• Various Preventive Detention Laws under state governments

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What is Preventive Detention?

• Preventive detention is the arrest of a person to “prevent” a crime from happening i.e. there is a strong suspicion/probability that the arrested person if allowed to remain free would get involved in some illegal activities.

History of Preventive Detention Laws in the country

• Bengal Regulation III of 1818 -> empowered government to arrest anyone for defence or maintenance of public order without giving the person recourse to judicial proceedings.
• Rowlatt Acts of 1919 -> allowed confinement of suspect without trial.
• Preventive Detention Act of 1950 – Expired on Dec 31, 1969
• Maintenance of Internal Security Act (MISA) in 1971 -> repealed in 1977 by the Janta Party government.
• National Security Act, 1980 -> brought by Indira Gandhi government when she came back to power.

Constitutional Provisions regarding Preventive Detention in India

• Article 22(4)-22(7) deals with cases of preventive detention here certain safeguards/rights have been provided to person getting detained under Preventive Detention Laws. These safeguards are available to both Citizens and Aliens.
  • (22(4)): No person can be detained for a period more than 3 months (reduced to 2 months by 44th amendment, but not notified yet) unless

a. An advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is sufficient cause for such detention.

• • • • Nothing in the above sub-clause shall authorize detention beyond maximum period prescribed by parliament under sub clause (b) of clause (7)
  • (22(5)) provides for communication of grounds on which detention order has been made and affording earliest opportunity of making representation against order.
  • (22(6)) Nothing in clause (5) shall cause the disclosure of facts which the authority considers to be against the public interest to disclose.
  • (22(7)) provides that Parliament may by law provide for

a. The circumstances under which, and the classes of cases in which 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.
b. The maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention;
c. Procedure to be followed by an advisory board in an enquiry.

Other Constitutional Provisions

Division of legislative powers

• The parliament has exclusive power to make laws of preventive detention on the
  subjects of defence, foreign relations and security of India.
• Both Parliament and State legislatures can concurrently make a law of preventive detention on subject of security of state, maintenance of public order and the maintenance of supplies essential to the community.

National Security Act, 1980

About the Act

• It is a law aimed at preventing crimes which may affect India’s security and public order. The provision of the act allows for preventive detention which can be extended for months.
• The grounds for preventive detention under the Act include:
  i. Acting in a manner which is prejudicial to the defence and security of India or
  India’s relations with foreign powers.
  ii. Regulating the continued presence of foreigners in India or for making arrangements for their expulsion from India.
  iii. Preventing them from acting in a manner prejudicial to the security of the state, public order, or maintenance of supplies and services essential for the community.
• Preventive detention under NSA happens through administrative order passed by the
  Divisional Commissioner or the District Magistrate (DM) – and not detention ordered by police based on specific allegations or for a specific violation of law.
• Under the NSA, an individual can be detained without charge for upto 12 months (advisory board made of high court judges have to approve detention beyond 3 months); the state government needs to be intimated that a person has been detained under the NSA.
  • The person can be detained under the NSA for upto 10 days without being told
    the charges against them.
• The detained person can appeal before the high court advisory board but they are not allowed a lawyer during the trial.

Various Preventive Detention Laws under state governments

• Various state governments have their own Goondas Acts which provide for preventive detention for maintenance of public order, supply of essential commodities etc

Criticism of the Preventive Detention laws

1. Violates International Human Rights, Constitutional Rights and Statutory Rights

• Detention without charger negatively hampers freedom of speech, freedom of movement, and right to life and personal liberty.

2. Misuse: Almost 90% of the preventive detention cases are set aside by the courts. This is another indication of the extent of misuse.
a. Tool to obscure the flaws in the Indian Criminal Justice System -> Buying time to investigate an offence; pretext for law enforcement agencies not to carry out thorough investigation.
b. Detention due to political and ideological differences

• It throttles criticism of government policies.
  • For e.g. In the case of Chandrashekhar Azad, founder of the Bhim army NSA was applied after the Allahabad High court granted bail in 27 separate cases calling the charges “politically motivated”.

3. Regular Use rather than exceptional

• The supreme court has held that it is a drastic measure and should be applied in rarest
  of the rare cases but is regularly used.

4. Against the grain of fair trial -> Violates nearly all due process rights.

• In the normal course of criminal law, a person accused of crime is guaranteed the rights to a legal counsel, to be informed of charges, to appear before magistrate within 24 hours, to cross examine any eyewitness and question any evidence presented and to be presumed innocent until proven guilty beyond a reasonable doubt in a court of law.
• The NSA doesn’t apply any of the above safeguards to the preventive detention cases.

5. Violates Separation of Power: As preventive detention is based on subjective satisfaction of the detaining authority.
6. Not in sync with democratic Principles: India is the only democratic country to have preventive detention laws even during peace time. Britain resorted to it only during the world wars. But in India it has been there since British rule.

• In a modern democracy, the emphasis should be on restorative justice rather than
  retributive justice.
• If other democratic countries can do without it, India should also be able to work without it.

Arguments in support of Preventive Detention laws

• These laws are necessary evils as they prevent terrorist attacks or helps in responding to existential national crisis because of the seriousness of the threats.
• Misuse of law can be tackled by some reforms and there is no need of repealing the law.
• National Security, Public Order are clearly mentioned as grounds to impose reasonable
  restrictions on various right to Freedom provisions.

In July 2023, the Supreme Court emphasized on the importance of strictly adhering to procedural requirements in cases concerning preventive detention laws.

• The court recognized that “All laws on preventive detention are necessarily harsh. They curtail personal liberty of an individual, who is kept behind bars without any trial. In such cases, procedure is all a detenue has. Laws of preventive detention must therefore be strictly complied”.

Way forward

• Indian Parliament and Judiciary should revisit the NSA to close any loopholes that permit law enforcement to abuse constitutional and statutory rights.
• Reasonable ceiling on detention
  • Parliament should at least come up with a reasonable ceiling on the maximum period of detention which at present in certain circumstances can extend upto 2 years.
• NCRB should come up with a mechanism to collect record of preventive detention cases as well to help make better policy on the issue.
• Should be used only in exceptional circumstances.
  • Both central and state legislature should provide for exceptional conditions in which it can be used.
  • SC has said on several occasions that Preventive Detention is a necessary evil only to prevent public disorder.
• Further, there should be focus on reforming criminal justice system to directly and
  appropriately address its weakness so that preventive detention laws are not used in normal situation.

Conclusion

It is time for India to catch up with the international community and recognize that preventive detention must not be used as an ordinary and regular law & order measure.

Example Questions

• National Security Act, 1980 in its current form is leading to abuse of power. Comment [15 marks, 250 words]
• Discuss the key constitutional and legal provisions dealing with preventive detention in India. [15 marks, 150 words]