This research delves into the development and constitutional implications of laws pertaining to Preventive Detention in India shedding light on their origins during the colonial era and their relevance today. By examining Article 22 of the Indian Constitution this study analyzes the safeguards and loopholes embedded within it revealing potential threats to individual freedoms. Through an examination of preventive detention acts and judicial interventions this research emphasizes the delicate balance between national security concerns and civil liberties.
KEYWORDS
Preventive Detention, Safeguards, Potential Threats, National Security, Civil Liberties.
INTRODUCTION
While efforts are underway to eliminate the signs of Colonialism from the physical spaces in India, there is a simultaneous trend of preserving the oppressive laws and practices from the country’s colonial past. Measures like ‘Preventive Detention’, that lacks an authoritative definition in India is used for curtailing an individual’s liberties to protect country’s national security, have resurfaced as a potent indicator of government’s arbitrary authority in the modern Indian republic. Preventive Detention has faced vehement criticism from the country’s populace in the past and continues to do so from the media, human rights organizations, and the Indian judiciary and the legal fraternity. Instance of human rights violations linked to Preventive Detention have become focal points of scrutiny and discussion, sparking a debate about its validity and compatibility India’s constitutional principles.
As we delve into the intricacies of Preventive Detention, it becomes imperative to explore its historical trajectory, understanding how this legal tool evolved over time.
HISTORICAL BACKGROUND
The common belief is that Preventive Detention started in India during the Colonial period, however, this understanding is historically questionable. In medieval times, the Mughal ruler Aurangzeb detained his own father Shahjahan, the detention might have been politically motivated but served a preventive purpose. And it is reasonable to believe that such practices were also present in the ancient times. What India’s Colonial masters did was to ‘Institutionalize’ this practice, beginning with the enactment of East India Company Act, 1784 popularly known as the Pitt’s India Act, which stated “detention of any person who was suspected of participating in any correspondence or activities prejudicial or dangerous to the peace and safety of British possessions and settlements in India.”, followed by numerous other acts, numbering up to at least 17, like Defence of India Act of 1919 and 1935, Rowlatt Act of 1919, the Government of India Act of 1919 and Bengal Criminal Law Amendment Act of 1925. These legislations bestowed upon the government the authority to detain individuals for extended periods of time without notifying them about the grounds for their detention.
Before independence the Constituent Assembly was established to draft a constitution for the nascent Indian republic. In extensive debates, the assembly discussed preventive detention and its inclusion in the Constitution of India. Key advocates for including preventive detention were India’s first Prime Minister and Home Minister, Pandit Jawaharlal Nehru and Sardar Vallabhbhai Patel, they argued for its inclusion as a necessary evil and would be used sporadically to protect the fledgling Indian democracy from the potential internal as well as apparent external threats. As a result, preventive detention found a spot in the Constitution, positioned alongside the draft Article 15(Article 21) as draft Article 15A. Eventually, it evolved into a distinct Article, Article 22, titled ‘Protection against arrest and detention in certain cases’, encompassing seven clauses. Article 22 of the Indian Constitution empowers the government to engage in preventive detention not only during times of perceived necessity but also in ordinary circumstances. The inclusion of this Article and its severe clauses in a chapter that talks about fundamental rights within a seemingly liberal constitution is surprising and casts serious apprehensions about personal liberties. This indicates the framers of the Constitution prioritized security of the state over personal liberties.
RESEARCH METHODOLOGY
This paper is descriptive and relies on a detailed examination of primary sources such as Constituent Assembly debates, Constitution of India, legislations from the British colonial era and acts & amendments passed by the Indian parliament. Additionally, secondary sources like newspapers, journal Articles, pre-existing documents have been consulted.
REVIEW OF LITERATURE
OVERVIEW
The idea that the biggest threat to Civilian rights and liberties stems from the government is indeed accurate. The authorities established to govern for the well-being of the people often understand how to, and frequently do, misuse the power given to them through the social contract agreed upon by both the government and citizens. The excess powers vested in government can result in oppressive scenarios for the public. Hence, there is a necessity to safeguard these delicate individual rights. In India, these protections are anticipated and are explicitly outlined in its Constitution. A dedicated chapter, Chapter II, is allocated to fundamental rights bestowed upon the citizens. Within this chapter are Article 14, 19 and 21 promising equality, dignity and liberty. However, within these rights and others, an issue arises with Article 22 of the Indian Constitution, addressing ‘Protection against arrest and detention in certain cases’, the wording of the Article and certain subsections under this Article perpetuate the harmful nature reminiscent of draconian laws imposed by the British.
PROVISIONS FOR PREVENTIVE DETENTION
Article 22 serves as the foundational authority for all preventive detention laws in India. Furthermore, Entry IX List I of VII Schedule of Indian Constitution exclusively grants power to the central government to make preventive detention laws on matters concerned with defence, foreign affairs and security of India and the state government shares under Entry III List III of the same schedule to formulate such laws for maintenance of public order, security of the state and maintenance of essential services.
Article 22 of the Constitution is stated as “ Protection to counter arrest and preventive detention in certain cases —(1) No individual detained shall be held without being notified regarding the reasons for the arrest, and they are entitled to seek advice and legal representation.
(2) Every detained person must be presented before the closest magistrate within twenty-four hours of arrest, excluding the time consumed in commuting from the place of arrest to the court of magistrate. Detention beyond twenty-four requires magistrate’s authorization.
(3) Clause (1) and (2) do not apply to—
(a) enemy aliens.
(b) person arrested under preventive detention laws.
(4) Preventive detention laws can’t detain a person for more than three months unless—
(a) an Advisory Board, composed of qualified individuals, reports sufficient cause for detention within that period. Nevertheless this provision does not authorize the retention of any individual beyond maximum duration stipulated by any legislation enacted by Parliament under clause (b) of clause (7); or.
(b) The person is detained according to the stipulations of any legislation enacted by Parliament under clause (a) and (b) of clause (7).
(5) When a person is detained under preventive detention laws, the reasons for the order should be conveyed to the individual, affording them a chance to present objections.
(6) Clause (5) doesn’t mandate the disclosing of facts against public interest.
(7) Parliament can prescribe—
(a) circumstances classes and maximum periods for preventive detention. It can also specify the procedure for an Advisory Board’s inquiry under sub-clause (a) of clause (4).
(b) the longest duration for which an individual can be held in any class or classes of situations under any preventive detention law; and
(c) the process to be adhered to by an Advisory Board during an investigation under clause (a) of clause (4).
A CLOSER LOOK
The wordings of this Article like “Protection against…detention in certain cases.” have significant repercussions for the unfortunate enough to encounter it. These words suggest that protection against detention would be given under specific circumstances, not universally. Secondly, to determine which case falls under the ambit of the word “certain” is impossible, as it is an open-ended term, and the task is entirely left on legislature’s discretion, granting legislature unfettered powers thereby, endangering civil liberties and freedom.
Immediate notification of arrest reasons, preservation of the right to seek legal counsel, and the option to be represented by a chosen legal practitioner are the safeguards outlined in Article 22(1) against arrest.
Under Article 22(2) individual must be presented before the closest magistrate within twenty-four hours, excluding commuting time, and detention beyond twenty-four hours is prohibited without the magistrate’s authorization.
The issue arises in the third clause of the Article, Article 22(3) and holds significance, addressing individuals who do not qualify for the protections outlined in Article 22 clause (1) and (2), them being:
- Any person who is currently considered an alien enemy;
- Any person who has been held under any preventive detention laws.
The first sub-clause excludes “an alien enemy”, referring to a person who is a citizen or resident of a state at war with the Republic of India. The second sub-clause excludes “any person” detained under prevailing preventive detention laws in India. The wording here raises concern, as it implies that the government has the authority to detain anyone, including minors. The broad powers could potentially be misused against political opponents and critics, all in the name of necessity. This renders them powerless against the unchecked powers of the state.
Clause 4 of Article 22 initiates a complex series of clauses that create a semblance of protection for the individual under detention. Article 22(4) introduces a protective measure by detailing the establishment of an advisory board, led by a chairman who is either a sitting or retired High Court judge or someone qualified for such a position. However, the challenge with this clause lies in the fact that the authority to form this advisory board rests with the central or state government, this raises concerns about the transparency of the government’s procedure. The government selects the board members, and this board is tasked with submitting a submission to the government within seven weeks, determining whether there’s sufficient reason for the detention. Meanwhile, the individual remains in detention.
Article 22(5) grants the detainee the right to be informed about the reasons for their detention. Additionally, this person has the right to make representation in court, this clause strikingly resembles Article 22(1). But, in the next clause, that is Article 22(6), these protections are rendered ineffective as the executive is granted the power to withhold information about the grounds of arrest from the detained person if authorities deem it contrary to public interest. This provision gives the executive of such discretionary authority. This not only exposes ordinary citizens to potential abuse of power by the executive but also undermines the detainee’s right to a fair trial by concealing crucial information from the individual. The practice of submitting sealed covers in court called ‘Sealed cover jurisprudence’, has further eroded public confidence in the principles of justice. However, recent refusals by the apex court to acknowledge such documents indicate that the judiciary is cognizant of these issues and refuses to consider them.
Next is Article 22(7), not offering protection but rather asserting the legislature’s overarching authority to regulate three sensitive aspects of preventive detention. Firstly, it is empowered to override recommendations from the advisory board and extend a person’s detention beyond three months. Secondly, it can enact and amend laws, determining the duration of detention stipulated under preventive detention laws. Thirdly, the parliament holds the authority to legislate on the procedures followed by the advisory board in conducting inquiries. These provisions grant significant power to the legislature and potentially compromise the validity of such an inquiry.
Upon a closer look of the clauses and sub-clauses of the article, the illusion of security dissipates. The nexus between these provisions reveals a dynamic where they either empower the legislature with more authority, or in some instances, render each other ineffective.
While preventive detention laws infringe upon an individual’s freedom and liberties, they are deemed constitutionally valid as a necessary measure to counter potential threats. These laws enable law enforcement agencies to promptly respond to credible information suggesting that an individual or a group is conspiring or is on the verge of engaging in activities harmful to the society.
PREVENTIVE DETENTION LAWS IN INDIA, EXECUTIVE AND JUDICIARY’S INTERVENTION
Judiciary’s involvement may occur, either due to suo moto cognizance or writ petitions filed under Article 32 or 226 of the Constitution. This intervention becomes crucial as preventive detention laws in India are severely restrictive with minimal protections for the detainee. The judiciary emerges as the final arbiter to review the detention order, individual actions and assess whether these actions, based on past behavior, suggest a potential for causing harm in the future.
Initially, in the Constituent Assembly, the preventive detention laws were deemed as necessary evil, intended for sporadic use during times of necessity and emergency not to be in force during normal times. However, this notion was contradicted when the first preventive detention law, Preventive Detention Act, was implemented just after a month the Constitution of India came into force. This highlighted how swiftly executive rushed to enact such draconian laws:
- Preventive Detention Act of 1950: Preventive Detention Act commonly known as the PD Act, this legislation marked India’s first preventive detention law, allowing for detention without trial for two years, was designed to facilitate the smooth functioning of central responsibilities such as defence, foreign affairs, and the maintenance of peace and public order. It was initially intended to be effective for a limited duration but remained in force for two decades. The act was challenged in the famous case of A.K Gopalan v. State of Madras, where a six judge constitution bench of the Supreme Court grappled with the question of constitutional validity of preventive detention under Article 19(1)(d) and Article 21. The key issue was whether these rights were linked or exclusive of each other. In a 5:1 decision, with only Justice Fazal Ali dissenting, the Supreme Court ruled that these rights are exclusive and that preventive detention laws enacted under Article 22 do need to comply with Article 19 and 21, thus the executive can exercise complete discretion. This represented a narrow interpretation of Article 19, 21 and 22. The case also provided clarification on the meaning of “Procedure established by law”. However, in the landmark case of Maneka Gandhi v. Union of India, the judiciary overturned this decision. The court asserted that these articles cannot be interpreted in isolation and introduced the ‘golden triangle’ doctrine, consisting of Articles 14, 19 and 21. This decision marked a historic moment in safeguarding an individual’s life and liberty.
- Maintenance of Internal Security Act of 1971: Maintenance of Internal Security Act, initiated by the central government led by Mrs. Indira Gandhi, was modeled on its predecessor, the Preventive Detention Act became infamous after the landmark judgment in the case of State of Uttar Pradesh v. Raj Narain, which led to the declaration of Emergency by the President under Article 352(1) from 1975 to 1977. During this period, the Act was tyrannically used to suppress Indira Gandhi’s political opponents, critics, journalists and activists. Through The Constitution (Thirty-Ninth Amendment) Act, 1975, the Act became part of the Ninth Schedule of the Constitution, preventing judicial review and the possibility of striking it down for violating fundamental rights. However, in 1977, the Act was repealed by The Constitution (Forty-Fourth Amendment) Act. Initiated by the central government led by Mrs. Indira Gandhi, this Act was fashioned after its predecessor, the Preventive Detention Act. Its notoriety escalated following the landmark judgment in the case of State of Uttar Pradesh v. Raj Narain, leading to the declaration of Emergency and the suspension of fundamental rights by the President under Article 359(1) from 1975 to 1977.
The Constitution (Thirty-Ninth Amendment) Act, 1975, nullified the judiciary’s potential of striking down the laws for violating fundamental rights. While the Emergency was still in effect, many detainees challenged their detention orders in High Courts across the country. Nine High Courts upheld such writ petitions as maintainable. The central government appealed against these orders in the Supreme Court, leading to the famous case of ADM, Jabalpur v. Shivkant Shukla. In this case, a five-judge constitution bench, by a 4:1 majority, ruled in favor of the government, asserting that the Right to life and liberty are gifts of law and must yield to the interests of the state. Justice H.R Khanna dissented, stating that these rights are innate and not a gift of law. Justice H.R Khanna’s perspective found support in the landmark judgment of K.S. Puttaswamy v. Union of India. In 1977, the Act was repealed by The Constitution (Forty-Fourth Amendment).
- Armed Forces Special Powers Act of 1958: Armed Forces Special Powers Act is commonly known as AFSPA, grants special powers to the armed forces, allowing them discretionary powers with the authority to use force, make arrests, or engage in preventive detention in “disturbed areas”. While this act can remain in force indefinitely, after the case of Naga People’s Movement of Human Rights v. Union of India the apex court held that it should be reviewed every six months. Section 3 of the Act, defining “disturbed areas”, was criticized but in Indrajit barua v. State of Assam, the courts acknowledged the lack of precision but deemed it acceptable since both the government and people understand its meaning. Declaring an area as “disturbed” is entirely at the government’s discretion, thus can’t be judicially reviewed. Section 4(c) empowers the army, an arm of the executive, to detain individuals based on suspicion. Section 6 provides impunity to military officers, leaving the public vulnerable to potential abuse by the executive and government.
- National Security Act of 1980: National Security Act or NSA, which is still in effect, is similar in content and application to other preventive detention laws. It primarily aims to safeguard the security of state, maintain peace, public order and friendly relations with other countries, its legality was questioned in A.K Roy v. Union of India and the court affirmed its validity.
SUGGESTIONS
The balance between National security, along with other important functions a government has to dispose of, and civil rights and liberties is a delicate one and needs to be preserved. Preventive detention or detention without trial is against “due process of law” doctrine settled in Article 21 of the Constitution but in some extreme cases, for example, during war, or situation which resembles it can be granted, but that doesn’t mean it should be in usage during times of tranquility, additionally, some suggestions are:
- The changes that were introduced by the 44th Constitutional Amendment concerning the provisions of preventive detention should be reviewed and any loopholes should be identified and then these provisions should be brought in force.
- Minors shouldn’t be preventively detained or avoided as it affects their mental health and may lead them astray.
- Guidelines should be made to regulate the conduct of authorities towards the detainee, as no matter who the person is, everyone is entitled to basic dignity.
CONCLUSION
The history of institutionalizing preventive detention laws in the country reveals their colonial roots and their evolution in post-independence India. The provisions of Article 22, raises concerns about the unchecked executive discretion also the challenge in balancing state’s security and interests with protecting civil rights and liberties persists with state trying to overpower personal liberties through stringent laws making judicial intervention necessary. In the end, it can be said that a nuanced approach to preventive detention is required ensuring the balance between individual freedom and state functions.
VAIHAV MISHRA.
SYMBIOSIS LAW SCHOOL, PUNE.