Abstract
Preventive detention laws are repugnant to democratic constitution and they are not found in any of the democratic countries of the world.[1] HV Kamath said during the assembly when preventive detention laws were discussed that “The eternal problem of government[s] [all] over the world” is to balance the national security of the state with the liberty of an individual.If the liberty of the individual is increasingly restricted in the supposed interest of society, the result would be an unconditional submission to authority hence the loss of liberty amounting to tyranny[2]. This research paper examines the factors for the validity of preventive detention orders and the constitutional safeguards along with the other aspects.
Keywords
Preventive detention laws, Arbitrary Arrest and detention, Validity of preventive detention, Constitutional safeguards, Article 22 of the constitution.
Introduction
Personal liberty is one of the most important and cherished rights guaranteed to all the citizens of India. It is evident from the analysis of the colonial era that there had been a constant struggle not only from British rule but also for securing liberty, equality and justice for the last man of the society. Thus, when the constitution of India was drafted, the framers of the constitution incorporated a long list of fundamental rights in accordance with the thoughts of democratic state.
“The aim of having a declaration of fundamental right is that certain elementary rights, such as, right to life, liberty, freedom of speech and so on, should be regarded as inviolable under all conditions and that the shifting majority in legislature of the country should not have a free hand in interfering with these fundamental right”[3]. Every attempt has been made to safeguard the democratic feature of our country. But there are certain laws that act as a threat to democracy such as preventive detention laws.
India is one of the few countries which has made these laws as an integral part of the constitution. Preventive detention may be defined as detaining a person without a trial before a competent court with the aim of preventing the person from causing any harm to the security, welfare and public order of the country. The traces of preventive detention laws are found dating back to colonial rule of Britishers. At present time we have various legislation on this subject. The object behind the inclusion of these laws was to safeguard democracy from the anti-social element but on the other hand the legal framework for preventive detention has been used as an oppressive tool to showcase executive autocracy. Recently the Supreme Court denounced the growing tendency in the state of Telangana of passing the orders of preventive detention without good reason.
Research Methodology
The doctrinal research design has been used in the present study wherein secondary sources such as case laws, law reviews, articles, reports has been referred. This qualitative study will explore the factors for the validity of order of preventive detention under latest judicial pronouncements.
Review of Literature
This part covers the books, articles and dissertations made by authors, scholars that are analysed for the present study.
Faisal Ahmmad Chaudhary in his thesis ‘Preventive Detention: A Comparative Study with India’ discussed that preventive detention law cannot be struck only on the ground that it was enacted to interfere with people’s freedom but at the end personal liberty and life of the detainee should be taken care of[4].
AG Noorani in his commentary ‘India : A Security State’explained the arbitrary arrest under preventive detention laws[5].
O.P. Gauba in Chapter 16 of his book An Introduction To Political Theory discussed the concept of liberty. He wrote that when we consider freedom as the condition of human beings, we enter the realm of Liberty which is usually defined as absence of constraint. Constraint or restraint may be internal as well as external[6].
Niharika Singh in her thesis An Analysis of Relevancy of Preventive Detention Laws in Modern Democratic State discussed that preventive detention laws goes against the principle of natural justice and violates the social contract theory. There is a silver lining between tyranny and democracy and it appears that the country might just be right on the edge[7].
Historical LegacyofPreventive Detention Laws in India
In India preventive detention laws had a colonial legacy. Britishers had used these laws to suppress the quest for freedom of Indians such as the Bengal Regulation Act,1818 , Rowlatt act, 1919 etc. Many of the freedom fighters were taken in custody and put in jail for several days. In England regulations were framed during the First World War under Defence of Realm Act,1914 and similarly during the Second World War Emergency Power (Defence) Act,1939 was enacted for preventive detention. The validity of these regulations were upheld by the House of Lords. Court held that personal liberty can be sacrificed for the national success in war.[8]These regulations ceased to have effect at the end of wartime.
Incorporation of Preventive Detention Laws in the Constitution
Even after the independence from the colonial powers, we did not end to adhere to some of the legislation of the colonial regime and we reconceptualized it and framed it in another way. There had been several discussions and deliberations among the members of the constituent assembly on the question of inclusion of preventive detention laws. Some of the members viewed that allowing the use of detention powers even during the peacetime would be a gross violation of democratic values while at the same time members who were in favour of it, justified it on the grounds of securing the unity and democracy of the country from disruptive elements.
At the end preventive detention was drafted. Constitution of India under Entry 9 List 1 of 7th schedule empowers the central legislature to enact laws of “preventive detention for reasons connected with the defence, foreign affairs or the security of India“.Likewise Entry 3 in list 3 of the same schedule vests the central and the state legislature concurrent power to enact laws “preventive detention for reasons connected with the security of a state, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention.”
Similarly article 22 in part 3rd of the constitution is a fundamental right guaranteeing the protection against arbitrary arrest and detention. Clause 4 to clause 7 lays down the procedure which has to be followed if a person is arrested under the preventive detention laws.
In brief article 22(4) provides the maximum period of detention under preventive detention law shall not be more than three months. But if the advisory board thinks that there is sufficient cause for such detention then it can be extended[9]. Article 22(5) provides that authorities ‘as soon as may be’ shall communicate grounds of detention to the person detained and afford him ‘earliest opportunity of making a representation against the order’[10]. Article 22(6) provides that authorities shall not disclose any fact which is against the public interest to the person[11]. Article 22(7)(a) provides that parliament may by law prescribe the detention of a person for a period of more than three months without obtaining the opinion of the advisory board[12]. Article 22(7)(b) provides that Parliament may by law describe the maximum period for which a person can be detained under preventive detention law[13]. Article 22(7)(c) provides that Parliament may by law prescribe the procedure to be followed by an advisory board in an inquiry[14].
There are a number of significant disabilities in this provision for which the 44th amendment was made which provided for the categorisation of preventive detention in two types 1) Reduced the maximum period of detention from 3 months to 2 months under a law enacted by legislature. 2) Changed the composition of the advisory board under clause 4(a).
3) Detention for a period of more than two months with reference to advisory board opinion. But this amendment has yet not been enforced.
Past Legislation on Preventive Detention in India
There had been a series of legislation till present. First was the Preventive Detention Act, 1950 which was enacted in 30 days of the enactment of the constitution on 26 February,1950[15]. The validity of the provisions of this act was challenged for the first time in case AK Gopalan v. State of Madras, Supreme Court held that where the law of preventive detention satisfies the requirement of article 22 it is not required to meet the challenges of article 19[16]. Justice Mukherjee said that the sole justification of such detention is suspicion or reasonable probability of the detenu committing some act likely to cause harm to the society or endanger the security of the Government, and not criminal conviction which can only be warranted by legal evidence. However the Supreme Court in Maneka Gandhi v. Union of India overruled the view expressed by the majority in the above case. Court held that a law relating to preventive detention depriving a person of ‘personal liberty’ has not only to stand the test of article 21 but it must satisfy the test of article 14 and 19 of the constitution[17].
This act was lapsed on 31st December 1969. Later preventive detention laws were back in the form of the Maintenance of Internal Security Act,1971(MISA).[18] This act was implemented because of the unrest in the country due to the naxalite movement. The maximum period for which any person may be detained was 12 months under section 13 of the act. In 1975, the then prime minister Indira Gandhi declared a ‘national emergency’ in the country. Thousands of people including opposition leaders were unreasonably detained without trial. By the 39th amendment, 1975 MISA was inserted in the 9th schedule by which it cannot be challenged before the court even if it violates fundamental rights. But this act was removed from the 9th schedule by constitution 44th Amendment Act ,1978 and was repealed in the same year when Janata party came in power.
Another similar legislation was the Terrorist and Disruptive Activities (Prevention) Act, 1987( TADA) ; this act was enforced on 3rd September 1987. Section 3 of the act provides for the punishment for terrorist activities and Section 4 for the disruptive activities.[19] The object was to deal with the specific situation of terrorism. National Human Rights Commission report of 1994 – 1995 shows that thousands of undertrials remain in jail in various states. Gujarat had recorded the highest number of TADA cases. The data of arrest and detention reveals that these laws had been continuously used to abuse human rights in the name of combating terrorism. The Supreme Court in Kartar Singh v. State of Punjab upheld the validity of TADA act but narrowed down the scope of the act and held that a ‘person becomes a terrorist or is guilty of terrorist activity when his intention, action and consequence all three ingredients are found to exist together’[20].This act was in effect until 1995.
Similarly there was another legislation named Prevention of Terrorism Act, 2002 (POTA) which dealt with heinous crimes such as ‘subversions, insurgency and terrorism’. The then Home Minister LK Advani said POTA is useful in stemming ‘state sponsored cross border terrorism’. Section 32 of the act provides that confession made before a police officer not lower than the rank of superintendent of police shall be taken into consideration. Many of the targets under this act were minorities , dalits, adivasi etc. This act was repealed in 2004[21].
An overview of all these legislation above shows that the act enforced failed to achieve its objective in a rational manner rather than it vested the authorities with sweeping powers which had been widely misused.
Present Legislation on Preventive Detention Laws in India
At present we have four central laws on this subject and they are as follows:-
National Security Ordinance was issued by the president in 1980 and later it was replaced by National Security Act, 1982. This act confers the power to the central or state government for the preventive detention of a person responsible for the activities prejudicial to the country’s security.[22] Section 11 (4) deprives the detainee right to appear by any legal practitioner in matters related to the advisory board.[23] This leads to the violation of impartial hearing. In A.K. Roy v. Union of India Supreme Court issued a number of directions with the view to safeguard the interest of detenues detained under NSA. [24]The other similar acts are Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974[25] , Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act,1980[26], Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988[27]. Likewise different preventive detention laws have been enacted by the state legislature over the time.
A perusal of the above legislation shows that it has become the tendency of the government to repeal one law and then replace it with another law which seems to be more stringent than the earlier, only to take action against the anti social activities with dreadful effect.
Constitutional Safeguards
Though the framers of the constitution had recognized the need for preventive detention law, they also provided the safeguards against the unreasonable detention by placing fetters on law making powers of legislature. Clause 4 to clause 7 of article 22 guarantee the following safeguards to a person arrested under such laws:-
- Any law which provides for detention for more than three months without obtaining the opinion of the advisory board must provide the class or classes of cases and also the circumstances under which a person could be detained for more than 3 months. If in the opinion of the advisory board the detention was not justified the government was bound to revoke the detention order.
- Clause5 imposes an obligation on the detaining authority to communicate the detenu the ground of detention as soon as possible. There can be no sufficient compliance of article 22(5) unless the information furnished must be in the language which can be understood by the detainee. The ground should not be relevant or non-existent.
- Detainees should be given the earliest opportunity of making representation against a detention order.
These provisions act as shields for the detenu and prevent the authorities from the despotic exercise of power. They cannot put a person behind bars on their own will. These safeguards provide the opportunity of effective representation to detenu.
Evolving Legality of Preventive Detention Order
Truly the Supreme Court has been called upon to safeguard civil and minority rights and play ‘the role of guardian and of the social revolution’. It is an impartial authority which acts as custodian of fundamental rights. Courts have always taken a step in case of misuse of preventive detention laws violating the fundamental rights of the citizens but another fact is staggering backlog of pending cases which results in the delay of justice. It takes several months to hear the cases of preventive detention orders.
According to a report of Indian express Allahabad high court questions 94 out of 120 habeas corpus petitions challenging the detention order under NSA[28]. In 1981 supreme court expressed great concern about the non compliance of constitutional safeguards contained in article 22(5) by the detaining authorities because despite repeated warning of the court in a series of decisions, the detaining authorities did not take care to comply with these requirements. [29]The language used in the preventive detention laws makes it clear that the power of detention is to be exercised on the subjective satisfaction of the detaining authority and the court will not interfere with the decision of the authority whether the grounds given are sufficient or not.[30] But the subjective satisfaction of the detaining authority is not wholly immune from judicial scrutiny.
Recently the Supreme Court in Ameena Begum v. The State of Telangana and Ors held that constitutional court when called upon to test the legality of orders of preventive detention would be entitled to examine whether
- The order is based on subjective satisfaction of detaining authority,
- The authority must contemplate over all the relevant circumstances,
- That exercise of power for improper purpose would be considered as ultra vires,
- The detaining authority has acted on its own discretion or under some other body,
- The authority has relied on self made legislation that prevented them from the exercise of application of mind,
- The satisfaction of above authority relied on material which is of evidently value and has given respect to the matters as per legislative mandate,
- Authority’s has considered the life and proximate link between the past behaviour of a person and the urgent need to detain him or satisfaction is based on old material,
- The ground of satisfaction should be such which the individual of ordinary prudence would considered it to be connected with the facts relevant to the inquiry,
- The grounds of order are clear, precise, relevant and pertinent and the detenu is inform about it for the suitable representation,
- The time period mentioned in the statute has been followed.
Recommendations
The study of preventive detention laws and its different aspect such as encroachment of personal liberty, legal framework that has been used as tool to showcase executive autocracy, role of courts in deciding the validity of order of preventive detention, whether the constitutional safeguard against the preventive detention are actually effective or not shows that there is dire need for the reforms and amendments in these laws so that it can be utilised for the purpose which was intended by the makers of constitution. In my opinion there are few suggestions for this purpose:-
- Persons who have been illegally detained should be compensated with the sufficient amount to meet the loss suffered by them during that period.
- Opinion of the advisory board for the detention of more than 3 months should be taken into consideration for making the constitutional safeguards effective.
- Adequate measures should be taken to foreclose the delay in considering the representation of the detenu so as to preclude the preventive detention from turning into punitive.
- There must be clarity in words of the provisions of act regarding the nature and the definition of crime along with the powers of detaining authorities.
- There should be stringent regulations in case of vindictive, callous, capricious abuse of powers of preventive detention.
Conclusion
It is ironic that framers of the constitution who themselves were once the victim of oppressive preventive detention laws of the Britishers still choose to grant powers to parliament to legislate such laws under constitution. The enactment of preventive detention laws is justifiable to some extent but the non-compliance of safeguards and capricious exercise of power is not justifiable. If these laws are framed with the actual intent of safeguarding the national security and peace then it may prove to be an effective weapon but the power may turn into the tool of executive tyranny if exercised in an arbitrary and unreasonable manner which may hamper the democratic values of the country.
Samridhi Srivastava
University of Lucknow
[1] DR. J.N. PANDEY, CONSTITUTIONAL LAW OF INDIA 388( 59th ed. 2022).
[2] O.P. GAUBA, AN INTRODUCTION TO POLITICAL THEORY 418(9th ed. 2021).
[3] A.K.Gopalan v. State of Madras, AIR 1950 SC 27.
[4] EAST WEST UNIVERSITY,http://dspace.ewubd.edu:8080/handle/123456789/3602 (last visited Sep.14, 2023).
[5] ECONOMIC AND POLITICAL WEEKLY,https://www.epw.in/journal/2009/14/commentary/india-security-state.html( last visited Sep.14, 2023).
[6] O.P. GAUBA, AN INTRODUCTION TO POLITICAL THEORY 415-450(9th ed. 2021).
[7] NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BENGALURU, http://oldopac.nls.ac.in:8081/xmlui/handle/123456789/877 (last visited Sep. 14,2023).
[8] Liversidge v. Anderson,(1942) AC 206.
[9] INDIA CONST. art. 22, cl. 4.
[10] INDIA CONST. art. 22, cl. 5.
[11] INDIA CONST. art. 22, cl. 6.
[12] INDIA CONST. art. 22, cl.7(a).
[13] INDIA CONST. art. 22, cl.7(b).
[14] INDIA CONST. art. 22, cl.7(c).
[15] Preventive Detention Act,1950 ,No. 4, Acts of Parliament, 1950(India).
[16] A.K.Gopalan v. State of Madras, AIR 1950 SC 27.
[17] Maneka Gandhi v. Union of India,AIR 1978 SC 597.
[18] Maintenance of Internal Security Act,1971, No. 26, Acts of Parliament, 1971(India).
[19] Terrorist and Disruptive Activities
(Prevention)Act, 1987, No. 28, Acts of Parliament,1987(India).
[20] Kartar Singh v. State of Punjab,(1994) 3 SCC 569.
[21] Prevention of Terrorism Act, 2002,No.15, Acts of Parliament,2002(India).
[22] National Security Act, 1980,No. 65, Acts of Parliament, 1980(India).
[23] National Security Act, 1980,§ 11(4),No. 65, Acts of Parliament, 1980(India).
[24] A.K. Roy v. Union of India,AIR 1982 SC 710.
[25] Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974,No.52 , Acts of Parliament, 1974(India).
[26] Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act,1980, No.7, Acts of Parliament, 1980(India).
[27] Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988,No. 46, Acts of Parliament, 1988(India).
[28] THE INDIAN EXPRESS, https://indianexpress.com/article/express-exclusive/national-security-act-uttar-pradesh-police-detentions-cow-slaughter-ban-7260425/ (last visited Sep.14, 2023).
[29] Kamla v. State of Maharashtra,AIR 1981 SC 814.
[30] Khudiram Das v. State of West Bengal, AIR 1975 SC 550.