Meaning Of Preventive Detention

Preventive detention is one of the preemptive step that allows the state to curtail an individuals right to life and personal liberty under article 21 of the constitution on the supposition of the harmful and injurious act that a person may commit in future. In simple terms, detention means confining a person before they actually execute a crime in order to prevent anticipated harm.

On one hand, state has the authority to incarcerate a person without legal action while on the other hand it badly affects person’s liberty. Therefore it raises a serious concern about their personal freedom which is extremely hampered.

Preventive detention helps in maintaining public order, national security and to control the huge loss that puts bad impact on the unity, integrity and solidarity of India.

Furthermore, preventive detention is one of the contentious power of the state but it creates alot of distress between state security and individual freedom. Although, provisions relating to it are mentioned under article 22(3) to article 22(7).

Certain Safeguards Mentioned In Article 22 For The Arrested Person Are:

• No arbitrary or unfair arrest
• Must be well acquainted with grounds of arrest
• Must have legal representation

Meaning Of Article 21

It says no person shall be deprived of his life or personal liberty except according to the procedure established by the law. It means that the executive cannot take away or restrict someone’s life and liberty through the arbitrary and unfair laws. Actions can be taken by the government only when they follow a proper legal procedure backed by sanction.

Transformation Of Article 21

AK Gopalan V State Of Madras (1950)

In AK Gopalan v State of Madras (1950) case, SC gave a narrow interpretation of article 21 stating that, if the procedure to make the law is being correctly followed then the law is valid, does not matter whether that law is unfair, unjust or unreasonable.

Maneka Gandhi V Union Of India (1978)

Thereafter, Maneka Gandhi v Union of India (1978) case has expanded the scope of article 21. In this case, SC held that any law confining, curtailing or restricting liberty and freedom of an individual must not only follow the procedural adherence but also must be just, fair and reasonable. Law should not be discriminatory, arbitrary, unjust and unfair. The preventive detention laws should be in confirmity with the 3 elements i.e justice, fairness and reasonableness.

Procedural Fairness

It means laws that are taking the freedom of an individual must follow just, impartial and unbiased procedures. They should not be arbitrary, discriminatory and unreasonable.

Impact On Preventive Detention Laws

• Adherence to procedural standards: Detention orders must follow proper procedures. Orders must not be vague and unreasonable.
• Well informed: Detainees must be informed about their grounds of arrest, their rights and duties as well. Proper information must be circulated to them.
• No delay in communication: Communication must be done promptly. There should not be any delay at the part of the concerned authorities.
• Right to representation: Detainees must have right to make legal representation and to consult and engage a lawyer of their choice.
• Natural justice principles to be strictly abided: All the principles of natural justice must be followed keeping in mind that no person faces injustice in the eyes of the law.
• Limited judicial review: There is comparatively less judicial monitoring of detention laws but it is essential to ensure that laws are fair, just and reasonable. And should not disgracefully affect person’s life and personal liberty.

Although procedural fairness has expanded the horizon of personal freedom but there are certain challenges that comes in the path of its implementation.

Challenges In Ensuring Procedural Fairness

• Based on personal credence of authorities: Preventive detention is often based on personal interests of the authorities but it must follow procedural safeguards.
• Abuse of power: Authorities under the supposition of more power passes vague, ambiguous and arbitrary detention orders.
• Weak judicial review: There is weak and negligible judicial review of such laws which in turn badly affects the detainee.
• Restricted legal aid: Very limited and confined aid and assistance is given to detainee. Although he has fundamental right to get it.
• Ineffective enforcement of laws: There is ineffective enforcement and implementation of laws which is itself a lacuna of the legal system.
• Lack of transparency: There is lack of transparency in the laws, certain laws are unjust and unfair which needs to be reformed.
• Delay in review: Advisory board sometime delays in reviewing the law and therefore it becomes ineffective.
• Limited access to testimony: Detainees have less access to evidences as it may badly hamper the wide public interests.

Needs For Reforms In Procedural Fairness

There is a need for specific changes in fairness procedure to ensure its effectiveness.

• Directives for authorities: There must be clear guidelines and regulations that the authorities must be abided by.
• Quick review procedure: Quick and prompt review process to be adopted.
• Accountability in executing responsibilities: Authorities must execute their responsibilities with transparency and accountability.
• Legal assistance for detainees: There must be sufficient legal assistance for the detainees. Legal aid must be available for them.
• Distinct and definite grounds: Grounds must be clear, distinct and definite in nature. No ambiguous grounds should be taken into consideration.
• Judicial supervision and monitoring: There must be strict judicial scrutiny, supervision and monitoring.
• Legal duty and obligation on part of authorities: There must be a legal duty on authorities to timely inform every detail to detainees as and when required. And obligation to answer their grievances as well.
• Timeline for communication: Stipulated time to be fixed in which the concerned authorities can disseminate the required information to detainees.

Conclusion

• Preventive detention is one of the precautionary measure that detain a person without any formal legal proceeding. Although, it is essential but there is a need to maintain equilibrium and parity between national security and individual freedom.
• Principles of fairness, reasonableness and justice must be taken into consideration.
• Judiciary must a play a pivotal and pro active role in ensuring it. As article 21 should not be hampered because individual freedom is of paramount importance in a representative republic.