• The Law Gazette

Status of Preventive Detention in India

Preventive detention refers to the holding of an individual in an effort to prevent that person from committing any potential crime, or, to put it another way, preventive detention is really an intervention taken by the government based on the presumption that the person in question might or is likely to commit some wrongdoing that would be detrimental to the State. Preventive detention is by far the most controversial aspect of the Indian Constitution’s fundamental rights system. Article 22 (3) of the Constitution of India states that individuals who have been arrested or detained under preventive detention laws are not entitled to the protections against arrest and detention granted by Articles 22 (1) and 22 (2) of the Constitution of India.


Preventive Detention, as the term implies, is the anticipatory measure under which the individual is imprisoned in order to deter him from carrying out any unlawful activity expressly forbidden by the Indian Penal Code of 1860. According to Section 151[i] of the Code of Criminal Procedure, 1973, Preventive Detention could only be carried out on the ground that the said individual is suspected of doing something immoral. In contrast, Article 22[ii] of the Indian Constitution provides for the protection of rights of each and every individual, which includes citizens and non-citizens with perhaps the exception of enemy aliens, from arrest and imprisonment in any particular instance which is not in accordance with the legal process. At this point, one really has to understand that perhaps a difference exists among both arrest and preventive detention. An arrest would be when the person is found guilty for any crime committed by him but, in the scenario of preventive detention, the individual is solely confined from doing anything to preserve the situation of law and order.


THE JOURNEY OF PREVENTIVE DETENTION

The legal journey of Preventive Detention can trace its origins right from the very beginning of the Constitution. In the case of AK Gopalan,[iii] where the constitutionality of preventive detention had first been questioned, it was held that preventive detention originally came within the constitutional framework and, therefore, it is legally permissible. The 44th Amendment Act attempted to reduce the recommended threshold duration of preventive detention from three months to two months, but such an action was taken without any of the consultative board’s view.


The provision did not come into force and thus the three-month duration is still very much in effect. This constitutional validity was once again upheld by the Supreme Court in 2005, in the matter of Ahmed Noor Mohamad Bhatti v. Gujarat State,[iv] wherein the Supreme Court was of the opinion that the power, under Section 151[v] of the Cr.P.C., to convict the individual without even a permit is not really unlawful solely because the police officer could misuse his power. This implies that preventive detention is a necessary instrument in the Executive’s hands. In the scenario of preventive detention, although the individual is allowed to question the ground for his confinement, it may be denied by the officials on the ground of interest of the public and, therefore, it leaves the officials sufficient scope for arbitrariness. Article 22 (3)[vi] of the Constitution of India clearly states that, where an individual is detained under the preventive detention legislation, security under Article 22 (1)[vii] and Article 22 (2)[viii] is not accessible to him.


Various laws have been passed upon this issue of preventive detention, as the Indian Constitution gives both the Parliament as well as the State legislatures the authority to pass laws in this respect. Parliament’s legal provisions include the Preventive Detention Act, 1950 (Expired in 1969), Maintenance of Internal Security Act, 1971 (Repealed in 1978), Terrorist and Disruptive Activity Act, 1985 (Repealed in 1995), Prevention of Terrorism Act, 2002 (Repealed in 2004). But none of these legislations have been in force for a significant period of time as some of them have been explicitly enacted for just a defined period of time or the others have been repealed. List 3 of Schedule 7 of the Constitution of India permits the lawmakers to make laws on preventive detention even in times of peace in order to prevent conflict as well as to protect public order, at both the Central and State levels.


INTERNATIONAL LAWS ON PREVENTIVE DETENTION

The European Court of Human Rights viewed preventive detention in the Indian Constitution as unlawful under the European Convention on Human Rights, even despite of the protection provided for under the law. In the present scenario, even the international ideals are also not cared for or heeded to. Article 4 of the ICCPR (International Covenant on Civil and Political Rights), ratified by India, allows an exclusion from the personal freedom assured by the State in the event of a context of uncertainty in the country.


In August 2000, even the South Asia Human Rights Documentation Center suggested that NCRWC (National Commission to Review the Working of the Constitution) should remove the constitutional provisions allowing for preventive detention; the justification for this is that India is now the only country that supports preventive detention in its Constitution, including peacetime periods.


Also, it has even been recommended that the word ‘satisfaction’ of the authorities is very vague, and a well-defined framework should be in place to specify the circumstances under which preventive detention may be exercised. The lack of judicial involvement disrupts the right to confront even before the courts, and violates Article 14 (1) of the ICCPR and Article 10 of the Universal Declaration of Human Rights (UDHR). The provision for referring to the advisory committee is just to keep the detention continuing beyond the three-month period and that, once again, there is no clause for regular review to guarantee reasonable and just detention.


CONCLUSION

If India is grateful and appreciative of its democracy and also of the granting of fundamental rights to its citizens, then it is very important either to consider removing the provision of Preventive Detention or restricting it to specific and narrow scenarios while also providing the appropriate safeguards to protect the detinue. Furthermore, it is also the call for an effort to defend individuals from tortuous treatment, to deter authorities from abusing Preventive Detention laws so as to penalize government dissent, and to help prevent over-enthusiastic government defendants from trying to sabotage the criminal system.


ENDNOTES [i] The Code of Criminal Procedure, 1973, Act No. 2, Acts of Parliament, § 151 (India). [ii] INDIA CONST. Art. 22. [iii] A.K. Gopalan v. State of Madras, AIR 1950 SC 27. [iv] Ahmed Noor Mohamad Bhatti v. Gujarat State, AIR 2005 SC 2115. [v] Supra 1. [vi] INDIA CONST. Art. 22 (3). [vii] INDIA CONST. Art. 22 (1). [viii] INDIA CONST. Art. 22 (2).


ABOUT THE AUTHOR

This blog has been authored by Shivangi Mishra, who is a 3rd Year B.B.A., LL.B. student at Jagran Lakecity University, Bhopal.


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