PREVENTIVE DETENTION: A QUASI LEGAL PRACTICE

June 29, 2022

There is nothing more foreign to a civilized and democratic system than preventive detention
Robert Bourassa

INTRODUCTION

There are certain rules and regulations in India’s governance structure that were either created to maintain internal security or have been in place since the time of British administration. It is quite evident that caste and racial violence are widespread in today’s society. Since the constitution of India places a high priority on equality, human freedom, and national security, Article 21 of the constitution guarantees that everyone has the inalienable right to a life of dignity. In the greatest interest of the public, the state has always taken a harsh stance toward criminals by restricting and denouncing illicit activity. Preventive detention was included in our constitution as a way to stop anti-national activities.

Preventative detention, which is sometimes referred to as a preventive measure rather than a punitive one, can be defined as the incarceration of a person without a trial, an act that is allegedly justified for non-punitive purposes. The arrest and detention under conventional criminal jail, which is applicable in both a crisis and a calm scenario, are completely distinct from the substance of the Law on Preventive Detention.

While the arrested person is provided the different rights outlined in Articles 22(1) and (2) of the Constitution in the case of an arrest and detention, according to the legislation of preventative detention outlined in Article 22(3), such protections are not extended to the arrested custody. The protections in accordance with preventive detention are provided for in clauses (4) to (7).

Although we presently have a number of regulations governing preventative detention, it is still unclear to what extent these practises can serve to safeguard the interests of detainees. The current legal system encourages the arbitrary use of authority more and calls for rapid court intervention.

The judiciary is extremely important in detention cases because, unlike preventive detention, which has its coercive authority in the hands of the administrative branch, punitive detention cases guarantee the presence of a judicial brain prior to the arrest.

WHAT IS MEANT BY PREVENTIVE DETENTION ?

When a person is detained in police custody solely on the grounds of a suspicion that they would commit a crime or harm society, this is known as preventive detention. Anyone whom the authorities suspect of having committed a crime may be detained. In some circumstances, the police are able to conduct arrests without a warrant or a magistrate’s approval.

Without a doubt, preventive detention played a significant role in India’s colonial legal structure.
Surprisingly, the Indian Constitution’s authors, who had experienced the most oppression as a result of the preventive detention laws, did not neglect to give the same legal standing in independent India.In relation to India and the current portrayal of itself as a democratic country, the latest article gives a full overview of preventative detention.

Detention simply refers to the act of having someone arrested or brought into custody. It may be both legal and unlawful. However, a new concept known as preventive detention has emerged when it comes to the security of the state and the good of society.

Detentions can be bifurcated into two broad dimensions:

Punitive detention is the term for confinement used to punish a criminal offense. It happens after a crime has been committed or after an effort has been made to commit the crime.

On the other side, preventive detention refers to the confinement of a person before any crime might be committed or its commission. Therefore, preventive detention is a measure implemented when there is concern that the subject could commit a wrongdoing. It is also called administrative detention, because the executive is in charge of this confinement and only administrative or management power has the authority to make decisions.

The judgement in the case of Mariappan v. The District Collector and Others stated that the purpose of detention is not to punish anybody but to prevent certain crimes from being committed. Furthermore, The Supreme Court ruled in the case of Union of India v. Paul Nanickan and Anr that the goal of preventive detention is to hinder someone before they do something and discourage them from doing it rather than to punish them for doing it. Instead of a criminal conviction, which can only be supported by reliable evidence, such detention is justified on the basis of suspicion or a plausible theory.

It has been observed that preventive detention laws are incompatible with the current democratic constitution. These rules raise serious concerns concerning both the freedom of a person held on the basis of mere suspicion and the protection of citizens as outlined in Article 22 of the Indian Constitution.

REGULATIONS FOR PREVENTIVE DETENTION IN INDIA

One of the few countries in the world that allows preventive detention during times of peace without the safeguards that are seen as essential in other nations to preserve fundamental human rights, is India. In spite of the safeguards provided by the law, the European Court of Human Rights has long held that preventive detention as defined by the Indian Constitution is unlawful in accordance to the European Convention on Human Rights.

Under Article 22 of the Indian Constitution, preventive detention may be utilized at any time, whether in times of peace, non-emergencies, or in other circumstances. The Constitution permits detainees to be kept without charge or trial for up to three months while also denying them the right to legal representation, cross-examination, prompt or periodic review, access to the courts, or compensation for illegal arrest or detention.

To stop anti-national elements from committing activities harmful to the nation’s security and defence, the first Preventive Detention Act was approved on February 26, 1950. After the remaining two years of operation, the aforementioned statute was due to expire. However, the act’s time frame was periodically extended, and in 1971, it was eventually repealed.

Coming to the period after Independence, The TADA, or Terrorist and Disruptive Activities (Prevention) Act, was introduced in 1985 in response to the separatist movement in Khalistan. The legislation was originally only intended to last for two years, but in 1987 it was updated and reintroduced. This Act is thought to be the strongest and most restricting legislation created under the preventive detention system. The intent behind this legislation was made clear when it said that it was widely believed to be necessary to make existing laws more stringent in order to successfully discourage and combat acts of terrorism and violence.

After the time frame of the aforementioned act came to an end, In 2002 the state presented another similar legislation known as the Prevention of Terrorism Act,2002 which was tabled in April 2001. In response to the terrorist events that occurred in the USA in 2001, the POTO (Prevention of Terrorism Ordinance, 2001) was created as a binding regulation. The NDA government passed the decree on October 24, 2001. After the 13 December 2001 attacks on the parliament, the Parliament had to be suspended, which led to the passage of another ordinance on December 30, 2001, without being passed as an act. POTA was developed within the theoretical parameters of state national security and global islamic terrorism. An ordinance revoked the law on September 21, 2004.

The Unlawful Activities (Prevention) Act (UAPA), which was initially passed in 1967, declares all such organisations that are considered to be separatist supporters to be unlawful. In the 1990s, when the Babri Mosque was demolished and Kashmiri separatist activities were on the rise, several organisations were deemed invalid under this statute.

The fabrication and distribution of premium counterfeit money, as well as supporting groups deemed unlawful under the definition of “terrorist operations,” were all included in the 2012 UAPA amendment as examples of acts that pose a threat to the stability of the nation’s economy. The most recent change to the legislation was made in 2019, and it now gives the NIA the power to label people as “terrorists” in addition to organisations on the grounds that they may be connected to acts of terrorism.

LEGALITY OF PREVENTIVE DETENTION

In circumstances when state conditions are implicated, such as national defence, the maintenance of peace and public order, foreign affairs, etc., the Preventive Detention Act of 1950 reinforces detention of individuals.

It is also important to note that, In the case of AK Gopalan v. The State of Madras, it was argued before the Hon’ble court that the Preventive Detention Act, 1950 was invalid since it was clear that an individual’s freedom was not protected as stated under Article 21. The Supreme Court declined to consider whether there were any deficiencies in the legal process since it had adopted a narrow interpretation of Articles 21 and 22. It adhered to the belief that each constitutional item operated independently of the others. The Supreme Court disregarded all arguments that the detention could be justified merely on the grounds that it was carried out in accordance with the “legally established procedure” when the petitioner challenged the validity of his detention on the grounds that it violated his rights under Articles 19 and 21 of the Indian Constitution.

The court significantly expanded the definition of “personal liberty” and applied the fullest interpretation possible in the Maneka Gandhi v. Union of India decision. The court stated that Article 21 does not preclude Article 19, and that any law denying a citizen their personal freedom must concurrently pass both Article 21 and Article 19‘s scrutiny.

In the case of Justice K. S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors., Justice Chandrachud established three requirements for an infringement of an individual’s personal liberty: (i) validity, which presumes the existence of a law; (ii) need, identified as a legitimate state goal; and (iii) proportionality, which ensures a just balance between the goals and the means used to achieve them.

CONSTITUTIONAL SAFEGUARDS IN CASE OF MISUSE

In case of preventive detention, some important and crucial rights are guaranteed to the citizens under Article 22 of the Indian Constitution which are as follows:

According to Clause 2 of Article 22, No person who is arrested and detained may be held in custody for longer than the specified time without the consent of a magistrate. Each person who is arrested and detained must appear before the nearest judge within 24 hours of their arrest, excluding the time required for travel from the place of arrest to the court.
Article 22’s Clause 4 states that no legislation for preventive detention permits someone to be held for longer than three months unless an advisory panel argues that there is a valid rationale for such custody. The members of the consultative panel will have the same qualifications as a jury in a high court. The report must be delivered before the specified three-month deadline has passed.
Clause 5 of Article 22, specifies any official who places a person in preventive detention must inform them of the basis for their imprisonment as soon as feasible. The grounds for detention must be logically related to the item that the detainee is forbidden from obtaining. The letter must contain all relevant information about the situation on the ground and not only state the facts.
The detaining authority is not required to give the reasons why the individual was held before his arrest, but it is advised that they do so as soon as possible to give the detainee an incentive to be represented.

These regulations provide the detainee’s proper protection so that the state does not go beyond its legal bounds. Human rights activists may complain that Article 22’s harsh Clauses 1 and 2 violate fundamental rights, however the detainee is given the right to know whether or not doing so will harm the public interest, and the detention is conducted with the interest of the residents in mind.

SUGGESTIONS

It is astonishing to see how preventive detention finds a home in the chapter that grants other fundamental rights. There have been several instances of the abuse of preventive detention authority for political gain or to restrict free speech and expression. In Uttar Pradesh, the National Security Act has occasionally been used to guarantee that investigations into complaints arising from neighbourhood cricket disputes are fair and devoid of corruption. Unreasonable authority to hold someone without adequate checks and balances and the barest minimum of legal restrictions increases the possibility of potential misuse of such power to detain someone.

It is obvious that in some circumstances, the rules relating to colonial past now need to be amended or adjusted. In the modern world, security and human rights must coexist. It is now necessary to assess the laws and the rules that govern them. The state must assume responsibility for compensating the released detainee for any losses in life, health, income, etc.

An appropriate framework should be established to guarantee that the detainees have access to their rights during their confinement. If allegations of coercive behaviour are made, they should be taken into account and should be followed by an authorised authority conducting a thorough inquiry. Additionally, a separate legal body should be established to look at these situations. In addition, it’s crucial that the rights of those in custody be upheld and that they receive prompt explanations of the reasons behind their incarceration.

CONCLUSION

For a growing nation, maintaining peace and order as well as protecting the scarce resources is crucial. Since its independence, India has had several rebellions based on factors such as gender, class, colour, and religion. These preventive detention techniques and national security laws have helped India preserve its independence, dignity, and autonomy to a large extent. The rules governing preventative detention require certain modifications or amendments in order to be fully consistent with the Right to Life and Liberty.

Preventive detention laws cannot be invalidated on the flimsy pretext that they are used to restrict people’s liberties as long as they are formed within the bounds of the legislative entry and do not violate any conditions or limitations on that authority.

REFERENCES

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June 29, 2022