This article has been written by Ms. Shreya Bhattacharya, a 2^nd year BBA LL. B student at Adamas University, Kolkata.

Introduction

In its most basic form, detention refers to restricting someone’s freedom—without that person’s awareness. An easy illustration of this is when a child disrupts a party and his father slaps him before locking him in a room to stop him from causing any more trouble. This is known as preventative detention since the father in this case put his child in a room to keep him away from any additional trouble. This is distinct from punitive detention, which is given to a person after committing an offence, where the former is given to stop someone from performing an act. 

The main distinction between the two is that, while punitive detention involves holding a person for committing an offence, preventive detention is an anticipated measure in which the person has not yet committed a crime and is simply being held because of this suspicion. What is here worth considering is the violation of fundamental rights in a democracy? The problem is that this act of holding people on suspicion of future criminal activity for the sake of keeping good relations with other countries and national security is problematic. The fact that the state held people for preventive rather than punitive reasons constitutes a grave violation of their fundamental rights.

Many legal documents, including the European Convention on Human Rights of 1950 and the Universal Declaration of Human Rights of 1948, serve as guidelines for arrest, administrative custody, and pre-trial imprisonment. These norms aid in comprehending the laws governing detention and arrest.

Preventive Detention:

In general, confinement is ordered for criminal defendants who have made threats to break the law while they are awaiting trial or decision, as well as for mentally ill individuals who may damage themselves or others- Black Law Dictionary.

 According to Alijan Mja v. District Magistrate, Dhanbad AIR 1983, SC 1130, it is an anticipatory measure and has nothing to do with an offence, whereas criminal proceedings aim to punish an individual for an offence they have committed. Preventive detention’s goal is to stop the detainee from doing anything harmful to the state rather than to punish them. In this way, the satisfaction of the relevant authorities is a personal satisfaction. [Union of India v. Ankul Chandra Pradhan, AIR 1997, SC 2814]. A person’s right to liberty and freedom is put into doubt when they are placed under preventative detention, as described in Chapter V of the Code of Criminal Procedure Code of 1973. 

Suspicion or a reasonable apprehension of the coming commission of an act harmful to the state, along with a reasonable probability, serve as the basis for preventative detention. In Ahmed Noor Mohmad Bhatti V. State of Gujarat, AIR 2005, a three-judge Supreme Court panel held that a provision could not be declared unconstitutional merely because a police official might abuse his authority. The court upheld the legality of the police’s ability to arrest and detain a person without a warrant under section 151 of the Criminal Procedure Code of 1973 in this case.

According to Article 22, anyone detained under the law governing preventative detention has the right to have the opposition to their custody evaluated by a board of advisors. The Detainee must be immediately freed if the advisory board finds the detention to be unwarranted. The Government may set the length of detention if the advisory board finds that it is reasonable. The advisory board may wrap up its business quickly, but it must provide its verdict within the legal window of time. If you do not, the detention is void. 

A person may only be detained for a maximum of two months without the approval of the advisory board, down from three months under the Constitution’s (44th Amendment Act of 1978) amended Article 22. Clause 7 of Article 22 should be interpreted as the best interpretation of subparagraph (a) was provided by the Honorable Supreme Court in Sambhu Nath Sarkar v. State of West Bengal. Section 17A of the Maintenance of the Internal Securities Act of 1971 contained five heads under which preventive detention could be used for over three months without an advisory board. 

Cases

• Against his continued confinement in Madras Jail, the petitioner in A K Gopalan V. State of Madras, AIR 1950 SC 27, sought a writ of habeas corpus. It cast doubt on the concept of “personal liberty.” The question was whether the Constitution’s Fundamental Rights were violated by the Preventive Detention Act of 1950. Except for Section 14, which is unconstitutional and illegal, it was decided that the Preventive Detention Act was within the bounds of the Indian Constitution. Furthermore, it was decided that Article 21 applied to preventive detention and that the Preventive Incarceration Act of 1950 did not need consulting an advisory board and allowed detention for longer than three months. The Parliament is not required to set a maximum duration.
• The court ruled in Kharak Singh v. State of UP AIR 1963, SC 1295 that personal liberty did not just apply to physical restraint or enforcement. Kharak Singh was accused of being a dacoit but was later freed due to a lack of proof. However, even at night, the Police kept an eye on his whereabouts and activities. The court ruled that a person’s right to personal liberty, which is protected by Article 21 of the constitution, was violated by an unauthorized entry into his residence and the resulting disruption to him.
• In Maneka Gandhi v. Union of India, the court used the broadest interpretation of “personal liberty” as defined by Article 21. Unlike in the case of Kharak Singh, protection regarding Article 19 was also incorporated. The Supreme Court has played a significant and advantageous role in defending the legality of preventative detention. The Writ Habeas Corpus protected preventative measures from being victimized by the unlawful use of preventive detention. Double Jeopardy also makes sense from the petitioner’s point of defence.
• A post card sent by a prisoner and submitted as evidence in Sunil Batra v. Delhi Administration [AIR 1980 SC: 1579] was later changed into a writ petition for Habeas Corpus. According to the guidelines set forth in Gopalan V. State of Madras, the writ would be invalid if the power of detention had been used improperly, for a side purpose, or inadvertently. Like how the writ would be rejected if the imprisonment were legally justifiable.

Human Rights and Preventive Detention

In addition to the safeguards and measures related to preventive detention, citizens must adhere to the need to prevent crime from spreading further and support preventive detention in a reasonable manner. However, there are instances where unlawful detention is used to prevent crimes punishable by law. Associated with it is Ahmed Noor Mohmed Bhatti V. State of Gujarat, AIR 2005, SC 2115. 

the idea of Audi Alterem Partem, according to which no one should be condemned without being heard. A person whose rights or interests are in dispute or controversy must be given a fair chance to defend themselves defense since this is a legitimate defense for those who have been subjected to unlawful preventive detention. Inhumane treatment of inmates during custody has sparked a revolution in strict human rights laws. It is a global issue that is overseen by the UDHR, and in India, the National Human Rights Commission has established several guidelines and procedures. Some of the significant ones that could protect inmates from cruel treatment and limit preemptive detention in accordance with national security are:

• Detailed documentation of events that satisfy authority and explain the detention’s justification to the detainee. People need to be made aware of several types of personal liberty. 
• There must be a mechanism for temporary relief or compensation in the event of wrongful detention.
• The Juvenile Justice Act of 2006 mandates that all states create regulations and set up the relevant institutions. The criminal justice system should be separate from the juvenile justice system.
• Prisoner counselling services.
• The NHRC held a workshop with four topic sessions on preventative detention, police custody, and incarceration. Mr. Soli Sorabjee, a former attorney general of India, served as its chairperson. Participants included DGPs, the director general of prisons, the human rights commission nodal officers, and representatives of NGOs.

Conclusion

From this, it can be inferred that the only people who can determine what is necessary for national security or the maintenance of public order must be those people. Detaining a person with the intention of preventing him from acting in a way that would be detrimental to the maintenance of public order should be the responsibility of the detaining authority. The court has always held that detaining people without giving them a chance to be tried, no matter how briefly, is completely at odds with the fundamental principles of our judicial and political systems. Except in strict agreement with and necessity to satisfy legal procedure requirements while considering the gravity of the offence and the absence of unfairness, antisocial activity cannot ever provide a sufficient justification for violating citizens’ personal liberties.

References:

1. https://www.legalservicesindia.com/article/1891/Preventive-Detention-and-Constitution-of-India—Effect-on-Human-Rights.html
2. https://blog.ipleaders.in/preventive-detention-detrimental-human-rights/

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