PREVENTIVE DETENTION

ABSTRACT

Peace and security play a crucial role in today’s world. The paper firstly provides an introduction to security. Secondly, the paper deals with the concept of preventive detention. Preventive Detention is a situation under which an individual is detained by an authority in order to prevent him from committing certain offences. Thirdly, the paper emphasis on different types of acts like the Preventive Detention Act, Maintenance of internal security act, Terrorist and Disruptive Activities Act(TADA), Prevention of Terrorist Activities Act (POTA), Unlawful Activities & Prevention Act (UAPA) and Foreign Exchange and Prevention of Smuggling Activities Act. Fourthly the paper focuses on the constitutional validity of preventive detention. It also focuses on the objects and grounds of preventive detention. The paper also emphasizes on Article 22 specifically. The last section of the paper provides a conclusion to the same.

INTRODUCTION

Security is considered to be an impotent aspect in the 21st century. It plays a crucial role in not only protecting the citizens of the country but also the various sectors that are functioning in the nation. It helps in safeguarding the rights of people belonging to different vulnerable groups. There have been various acts that have been passed by the Indian Legislature. These acts have played an important role in ensuring security to the nation. Security helps the nation to be free from any kind of threat from external and internal factors. The aim of the Indian Legislature is to make laws that can uphold the fundamental rights of all the citizens residing in the country. In rare situations, the Indian Legislature has implemented laws that have neglected the Fundamental Rights of the citizens. Preventive Detention Act was passed by the Indian Legislature to prevent anti-national elements from carrying out acts that are hostile to Nation’s security and defense. It has played an important role in preventing any individual to commit any type of offence that is violative of public morality.

What is preventive detention?

Preventive Detention is a term that relates to a situation wherein the individual is arrested or taken into custody legally or illegally. When an individual is arrested for the benefit of society then it is called Preventive Detention.

There are two types of preventive detention:
The first type relates to punitive detention which means under which detention is considered to be. a method of punishment. This detainment only happens after there has been a commission of a crime or there has been an attempt committed towards the crime. The other type means that a person is detained in advance to prevent any possibility of the commitment of crime or its engagement. Preventive detention is an action that is taken on an apprehension that the person can commit any wrongful act. Preventive Detention is a term that means administrative detention as the detention is directed by the executive or any decision-making authority. According to Section 151 of the Criminal Procedure Code, preventive detention is an action that can be taken on the grounds of suspicion that certain wrong actions can be committed by a particular person. A police officer is allowed to arrest any individual without the orders of the Magistrate if he gets any information that the individual can commit an offence. Article 22 of the Indian Constitution has laid down that a person can be given protection against arrest and detention. Preventive Detention is the act of imprisoning accused persons prior to trial on the presumption that their discharge can be heinous to society as that person can commit crimes. This term means that a person is detained based on mere apprehension in the executive’s mind without a trial and convicted by the court. The laws that are regulating the concept of preventive detention are repulsive to the modern democratic constitution. These laws have raised certain questions in relation to the protection of the citizens that is mentioned in Article 22 of the Indian Constitution.

ACTS IN INDIA

On 26 February 1950, the first Preventive Detention Act was passed by the Indian Legislature to prevent anti-national elements from carrying out acts that are hostile to Nation’s security and defense. The act was supposed to end after 2 years in practice however the time limit of the act was extended and was finally abolished in 1971. The Indian Parliament implemented this act when Indian Constitution came into force. The act focused on the detention of individuals up to one year. This act was passed to supervise the situations of displacement and extreme violence that was faced by the country during the partition. This act expired in 1969 after staying in force for two decades. Under this act, the law gave power to the government to detain individuals for a time period of one year.

In 1971 Maintenance of Internal Security Act (MISA) was instituted to establish internal security in India. This act was introduced after the removal of the Preventive Detention Act in 1969. The act had similar powers as that of the Preventive Detention Act. The act was arbitrarily used by the government against the trade unions, political opponents, civil societies during an emergency. This act was later repealed in 1977 after the fall of Indira Gandhi.

In 1974 Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) was passed by the Indian Legislature which provided for preventive detention to maintain and improve foreign exchange and to deter illegal trade. This act came into existence after the repayment of the MISA. Under this act the detention period for the smugglers was one year however on 13 July 1984 the time period was increased to two years.

The Terrorist and Disruptive Activities Act(TADA), 1987 was implemented during the Separatist movement in the nation that was seen especially in Punjab. The government saw that the new offences were created by the terrorist affected areas, provided powers to the profile and reduced the protection that was given to the defendants. The act provided a definition of the term terrorist act and disruptive activities. It gave powers to detain the suspects, attach their property and levied certain restrictions on bail. Under this, the confession that was made to the police officer was considered admissible in fact of evidence that facilitated torture and custodial abuse. As there was a lot of misuse and drawbacks the act was later repealed in 1995. The act has focused on the definition like Disruptive activities, by act or by speech or through any other media. The TADA courts have been established to prosecute those individuals who have been accused of the terrorist activities that have happened in the areas that are designated by the government as terrorist affected areas. From the time period of 1985 to 1996 over 76,000 people have been arrested under this act.

The Prevention of Terrorist Activities Act (POTA) was implemented in 2002 after the hijacking of IC-814 plane in 1999 that had to fly from Kathmandu to New Delhi, the Terrorist Act in World Trade Centre on 11 September 2001 and the Parliament Attack on 13 December 2001. The act focused on the concept of defense limits, police powers, setting up of courts and admissibility of a confession. The law focused on the detention of the suspect up to 180 days by a special court, the inclusion of a separate chapter with names of a terrorist organization. There were a number of parties who missed this act for their political agenda.
The question of the constitutional validity of the act was later discussed in the case of the People’s Union for Civil Liberties vs Union of India. This act was later repealed in 2004 as there was a lot of misuse by the parties.

The Unlawful Activities & Prevention Act (UAPA) was implemented by the Indian Legislature in 1967.The Indian government combined the powers of the Preventive Detention Act with UAPA to declare the organizations unlawful. This term has been used vaguely from the very beginning. Under this act, bail is difficult to obtain. The act has allowed the accused to be kept in custody for six months without the filing of the charge sheet. Under this, any person who has been accused of the crime of murder can get bail within the time period of three months of arrest if the case is not provided to him. The UAPA has been misused many times and has led to the human rights violation. The UAPA has discarded the review clause and therefore has been repealed in Parliament. The act dealt with the offences that have been related to unlawful activities under which the government was empowered to declare some activities and some associations as unlawful as they were a threat to the sovereignty of the people. The act was amended many times in 2004, 2008, 2012 and later in 2019. In the latest amendment of 2019, it was provided that under Schedule IV, the government will have the power to declare any individual as a terrorist. It was also given that under Section 25 the DG of the NIA will be having the power to seize property. The words like terrorist organization and terrorist act were removed from the Prevention Of Terrorist Activities Act and later on added in this act.

CONSTITUTIONAL VALIDITY OF PREVENTIVE DETENTION

Preventive Detention Act, 1950 has reinforced human detention in various situations where the state conditions were involved like national defence, international affairs, preservation for peace and public order. The validity of the Preventive Detention Act was first time challenged under the case of AK Gopalan vs The State of Madras where it was apparent that the freedom of an individual isn’t qualified as per Article 21. The Supreme Court analyzed the view of Article 21 and Article 22 and refused to entertain any inadequacies in the procedure that was given by the law. It was laid down that both these articles were autonomous of each other. Under this case when the petitioner argued the validity of detention on those grounds violated Article 19 and Article 21 of the Indian Constitution the Supreme Court rejected all the arguments and said that the detention could be justified if they have been conducted in accordance with the legally established procedure.

Under the case of Maneka Gandhi vs Union of India [1], the court expanded the definition of personal liberty. The court held that Article 19 is not included under Article 21 and that any statute which deprives a citizen of his personal liberty will be under the scrutiny of Article 21and Article 19.

Article 22 of the Indian Constitution provides certain rights in case of preventive detention:
Clause 2 of the Article 22 of Indian Constitution states that every individual who is arrested and detained should be produced before the nearest judge within the 24-hour time period. No individual should be kept in the custody for more than 24 hours.
Clause 4 of Article 22 of the Indian Constitution states no law for preventive detention authorizes any individual to be detained for more than three months unless there is a reasonable justification by the advisory panel for his detainment. The report has to be provided before the expiration of three months.

Clause 5 of Article 22 of the Indian Constitution provides that the reason for the detention of an individual should be given to that individual as earliest as possible by official means. The correspondence should include all the ground related and factual information. A person who is detained can be kept in custody if there are reasonable and satisfactory reasons for his detainment. This clause also ensures that the detainee is allowed to contact any lawyer after the grounds for his detainment has been communicated to him.

Object of The Preventive Detention

The object of preventive detention is that the detainee is prevented to commit any act that is prejudicial to the state. There are certain grounds on which a person can be detained like:

  • Services essential to the community
  • Security of the State
  • Foreign Services or foreign services
  • Public Order

A person can be detained without a trial according to the above grounds. A detainee who is covered under preventive detention doesn’t have any right of personal liberty that is guaranteed under Article 19 or Article 21.

Under the case of Mariappan vs The District Collector And others [2], the court held that the object of detention is not to punish but to prevent an individual from committing any offence that is against the State.

Under the case of Prem Narayan v. Union of India [3], the Allahabad High Court held that preventive detention is a violation of personal freedom of an individual and cannot be infringed in any way however in most cases the courts have condoned the violation of liberty.

Under the case of Khudiram v. State of West Bengal [4], the detainment was made under the Maintenance of Internal Security Act, 1971 (MISA), the Supreme Court held that the court is not having powers to monitor the ampleness or the respectability of the grounds. The court is also not allowed to interfere in the decision that is made by the detaining authority.

CONCLUSION

India is one of the developing nations in the world. In today’s world peace and security are considered to be the most important elements for the smooth functioning of the nation. India has witnessed a number of agitations on grounds of gender, class, religion race etc however still it has been preserving its independence, dignity and its autonomy through the national security legislation and preventive detention methods. The preventive detention laws are not totally fair and require certain changes to fit well within the scope of the Right to life and Right to liberty. The responsibility of preserving the independence of India is based upon the security-related rules, actions and provisions.

END NOTES

  1. A.I.R. 1978 SC 587
  2. H.C.P.(MD) No.244 of 2014
  3. HABEAS CORPUS No. – 27130 of 2019
  4. 1975 AIR 550,

AUTHOR

Sidrah Jami (DY Patil Law College)