Name of the Author and Affiliation:
LAKSHITA MAHAJAN, INSTITUTE OF LAW, NIRMA UNIVERSITY
Abstract
Preventive detention-an ambiguous practice that is constitutionally sanctioned but virtually opposed by jurists in India- sanctions the detention of individuals without formal charges or a trial with an intention to prevent further crimes. This legal framework, rooted within Indian law, navigates the thin line between protecting national security and individual liberty. Over the decades, the detention law has been justified as preventive to extraordinary circumstances for the purpose of maintenance of law and order. However, over the years, it has also been subjected to much criticism by prima facie arguments likely to be made use of at the cost of fundamental rights guaranteed by the Indian Constitution.
This essay will critically examine preventive detention under Indian criminal law, tracing it in its historical context, approaching and analyzing the legal provisions governing it, and analyzing the implications for civil liberties and judicial oversight. By such an examination of landmark cases and the evolving jurisprudence, this essay attempts insight into the subtle balance between national security and individual liberty.
Introduction
Preventive detention is no novel phenomenon for Indian law. Its roots might go back to the British colonial rule days since the British government had extensively utilized this in the suppression of dissent and reigning in the nationalist movement. The ‘Defence of India Act, 1939’, entrusted the colonial government with the power to detain a person for an indefinite period of time if there was suspicion about such a person causing harm to public order, and indeed, it was extensively resorted to during World War II for pressing into services political disturbances.
The framers of the Indian Constitution reached a broad consensus regarding India’s independence that preventive detention must remain available as a statutory device but in a much better regulated manner. Hence, the Indian Constitution came to enact ‘Article 22’ which allowed preventive detention with safeguards simultaneously preventing its misuse. Despite all this, preventive detention continues to be a controversial concept; voices argue that it often contradicts the right to life and personal liberty guaranteed under ‘Article 21’
Legal Provisions Governing Preventive Detention
This legal framework through which the preventive detention under the Indian Constitution operates is primarily worked out in Article 22. Yet, in this article, duality abounds: the article lays down certain rights that should be provided to persons who are arrested, yet it permits preventive detention with minimal safeguards.
Under Article 22(3)(b), the protections normally available to persons under arrest, such as information regarding the grounds for detention and a right to counsel, are not applicable to persons detained under preventive detention laws. However, Article 22(4) seeks to balance this off by making the detention period merely three months, unless an advisory board consisting of high court judges or persons qualified to be high court judges, approves detention beyond that period.
There are numerous preventive detention laws present in Indian criminal law, though perhaps the best-known among the following are as given below:
The National Security Act 1980 grants power to detain any person for a period as long as 12 months if it is felt that he or she endangers national security, public order, or maintenance of essential services.
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974: Primarily aimed at preventing smuggling and foreign exchange contraventions, COFEPOSA offers preventive detention for economic offenses.
Prevention of Terrorism Act (POTA), 2002: POTA is now repealed but its use of preventive detention based upon suspicion of terrorism was accepted. While it is commonly abused it remains as a precursor to other legislations.
Unlawful Activities (Prevention) Act (UAPA), 1967: Starting off as an antiterrorism legislation, UAPA was amended in 2004 with stringent preventive detention provisions.Legislatives, in most cases, confer absolute discretion on the executive branch and require numerous checks to avoid individual rights from getting galloping out of bounds and escaping the executive’s abuse.
Checks on the Misuse of Preventive Detention
While preventive detention laws suspend individual rights on certain grounds, there are certain safeguards which the framers of the Constitution and subsequent legislators integrated to minimize abuse. A few such safeguards include:
Advisory Boards: Article 22 states that advisory boards shall be created to examine the detainees’ cases that have been detained for more than three months. The advisory board exercises control over arbitrary detention, ensuring reasonable cause exists for continued detention of the person.
Judicial Review: Indian courts have developed jurisprudence on preventive detention that stressed the role of judicial review as a safeguard. In other words, although constitutionally permitted, the courts have insisted that the grounds of detention must be reasonable and clearly stated. For example, in Maneka Gandhi v. Union of India (1978), it was held that for any law taking away or abridging the personal liberty of a person, the procedure must meet the test of “just, fair and reasonable”.
Right of Representation: No provision exists under preventive detention laws for this purpose. The courts, however, have ruled that detainees should be informed of the grounds for detention as soon as possible. In the case of detainees, a judgment by Supreme Court in A.K. Roy v. Union of India 1982 declared, “Detainees have a right to make representations to the government and to the advisory board against their detention”.
Well, despite these provisions, the problem is in their practical application. Take, for instance the advisory boards that have been seen to rubber-stamp executive decisions rather than exercise vigorous oversight. Even judicial review, which is available, is often torpedoed by the judiciary’s procedural backlog that leaves the detention for quite a long time.
Preventive Detention and Right to Personal Liberty:
Thus, preventive detention laws occupy a thin legal space that generally brings them into collision with the constitutional right to personal liberty. Article 21 of the Indian Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Yet, the preventative detention laws permit deprivation of liberty with a scheme of process that raises serious doubts about their constitutionality.
The judiciary has strived to fill this gap through a host of judgments which affirm the supremacy of personal liberty. In Raj Narain vs Supdt. Central Jail, New Delhi (1970) , the Supreme Court ruled that though constitutionally permissible, the exercise of preventive detention cannot be arbitrary or without cause. Courts have also reiterated that detention should not be punitive in nature but rather preventive-to be resorted to only when there exists an apprehension of harm to the public.
More importantly, the judiciary has also examined the procedural fairness of preventive detention. In Joginder Kumar v. State of Uttar Pradesh (1994) , the Supreme Court emphasized an accountability and transparency in the process of detention by cautioning that preventive detention must not become an administrative alibi.
Further in Rekha v. State of Tamil Nadu, 2011 , the Supreme Court had called this entire idea of preventive detention as somethings that is “repugnant to democratic ideas”. The case reiterated on the fact that this preventive detention often results in violation of Article 21 Right to Life and Personal Liberty due to which it becomes very necessary to have very restrictive use of this rule. This preventive detention should just be the last resort and not the ultimate solution to all the problems.
In Mariappan vs. the District Collector and Ors. (2014) , the Madras High Court very beautifully held that the purpose of preventive detention is to deter any possible harms, threats to the state, and not to punish the detainees. It needs to be highlighted that a person is detained only on the mere basis of an apprehension that they may commit a crime, however, till now they have not committed any crime. Thus, detainee shouldn’t be punished for something which they have not even committed.
In Prem Narayan vs. Union of India (2019) , the Allahabad High Court reflected upon the gruesomeness of preventive detention. It highlighted how preventive detention is a rule which infringes an individual’s rights completely and treat them like a convicted offender, even though in real they might have not committed any crime. It is due to this that this preventive detention cannot and even should not be imposed casually.
Judicial intervention notwithstanding, in practice, preventive detention laws have, however continued to raise a number of controversies. Detainees, for instance are held without being told specifically why they are detained; thus, infringing on the right to legal defense. In some cases, preventive detention laws have been used as a tool for ridding society of political dissent or targeting certain communities; thus, fueling adverse criticisms against these laws as draconian measures against democratic values.
Current Situation:
In a recent case, namely, Jaseela Shaji vs. Union of India, 2024 , Supreme Court has laid down certain new standards in regard to the detained person. Despite several attempts to reduce the number of detainees, and such instances of preventive detention, abundant cries from the human rights organisations, around the world, still none of it had made any significant impact on the condition of the detainees. This preventive detention law finds its exclusive presence in the Indian Laws, where for the national security purposes people can get detained. Now this ground in itself is vague, and it is very easy for the ones in power to abuse this law in order to fulfil their interests. Now in these scenario, Supreme Court laying down new standards could be a step in making sure that detained individuals are not exploited against, and receive fair and just treatment.
Following are the new standards:
Fair and Effective Opportunity:
Every detainee has the right to have a fair and just opportunity to present themselves in the court of law. It also includes providing them with all the relevant documents, allowing them to have an advocate of their choice, and if not, they are not able to arrange an advocate, then it becomes the court’s responsibility to provide them one. The ideals of procedural fairness have to be followed. Judges too need to be unbiased in dealing with such matters, and it should be made sure that they provide for a reasoned decision. This not something new, but a reiteration of a right that have been always provided by our Constitution, but is often forgotten. It needs to be ensured that the doctrine of presumption of innocence is the guiding light when dealing with such matters.
Constitutional Rights:
It is very ironic how within the same Article 22, rights and curtailment of rights have been ensured. When Article 22 gives out rights of the arrested person, it also legalizes preventive detention where a person can be detained without a trial for three months. When this article provides the right to speedy trial, it also states that the state could detain a person without a trial for 3 months. Despite this contradiction, it is to be ensured that even though a person is detained they are not excluded from the ambit of Article 14 and 21, which mandates the humane treatment of such people, along with making sure that they are not exploited.
Non-arbitrary Actions:
It is very important to note that in this entire process it is the police and other related authorities who holds the immense power while dealing with such matters. This makes it very easy for such authorities to work as per their own understanding and interests. Thus, this new standard was laid down to make sure that the authorities do not work arbitrarily, and due process of law is followed.
Avoiding undue delay:
Detention is a sword, that has no shield against. Under the name of national securities, hundreds of thousands of people have been detained, and that too for so long, that many a times it happens that for long years people remain under custody without any trial. Detention is no solution, and hence it had to be made a point that there are no unnecessary delays in dealing with such matters, and that rights of the detained person is also ensured.
Criticism and Calls for Reform
Preventive detention has been widely criticized for its tendency to abuse and for not being compatible with democratic ideals. Some of the most important criticisms of preventive detention laws raise issues about disproportionate power in the hands of the executive branch when it comes to detaining people without proper judicial oversight. Many human rights organizations have pointed out instances in which preventive detention has been used as a means to silence dissent or simply as a political tool for repression.
A much greater issue is the opacity of the process of detention. Sometimes, it is only after many days or even weeks that the detainees are informed of their detention’s cause; furthermore, they have limited rights to appeal against such detention. Such a scenario can lead to a situation in which people are punished without trial.
Critics argue that preventive detention laws are discriminatory against minority groups. For example, by the National Security Act, a person suspected of being a danger to public order could be detained; however, often, these detentions were viewed and considered as detention of minority communities. There lack clear and defined criteria of what is referred to as “danger” to national security or public order, and this leaves much room for arbitrary interpretation and application.
Calls for reform or repeal of preventive detention laws in India have multiplied lately. Some believe that they are still lingered colonial legislation and of no place in a modern democracy. Others have called for their amendment with stiffer safeguards against misuses, including stricter judicial checks and more open procedures in detention.
There are also considerable gaps in what the courts have propounded and the actual practice of those laid out guidelines. Courts have laid several important and beautiful guidelines to ensure the rights of the detainee, however none of it would make sense, if there is no corresponding implementation of those directions. Thus, it should be ensured that the directions laid down by the courts do not exist just for the namesake, but those directions are also implemented to safeguard the interests of the detained person.
Conclusion
Preventive detention, as embodied in Indian criminal law, is a delicate balance between the need of security and public order on the part of the state and the right to personal liberty on the part of the individual. As regards national security issues and crime prevention, preventive detention laws have been successful tools but also heavy instruments of oppression on civil liberties.
Though the Constitution did contain safeguards within it, and judicial intervention later redressed many of the worst abuses, the need for reform is still present. The challenge that will be left in the evolution of India as a democracy would be ensuring preventive detention law is used sparingly, and is absolutely necessary to use proper mechanisms which care for individual rights.
Success of preventive detention laws: The ultimate observance of preventive detention laws is fair and just implementation, where the need of the state to ensure security does not encroach upon what remains as the cornerstone of India’s constitutional framework-institutional structure, the fundamental rights.
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