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A Conceptual Analysis Of Preventive Detention

There is nothing more foreign to a civilised and democratic system than preventive detention.- Robert Bourassa

Article 21 of the Constitution, being an integral part of the rights guaranteed under Part III of the Constitution of India, provides that no person shall be deprived of his life and liberty except according to the procedure established by law. However, if any person is bereaved of his rights in accordance with the procedure prescribed by law, then it cannot be regarded as wrongful.

Article 22, which deals with the protection against arrest and detention, fulfils those procedural requirements which Article 21 provides for. It can be divided and read under two headings. Persons arrested under ordinary circumstances and persons detained under the Preventive Detention laws.

The term 'Preventive Detention' has not been defined under Indian law. Nonetheless, as defined by Britannica, the practice of incarcerating accused individuals before trial on the assumption that their release would not be in the best interest of society or that they would be likely to commit additional crimes if they were released is known as Preventive Detention. This term is antithesis to the term 'punitive'.

Such a detention is not a punitive but a preventive measure. The interception is based merely on suspicion so as to avoid any harm at a later stage. This concept was laid down by Lord Finley in R v. Haliday [1917 AC 260, 269]

History Of Preventive Detention

A regulation for the confinement of State Prisoners, The Bengal Regulation III, 1818 was enacted by the British East India Company in the state of Bengal to detain any person for an indefinite period of time suspected to have committed an offence without being tried. Similar legislations were also passed in the Presidency towns of Madras and Bombay.

The term 'Preventive Detention' originated from the Defence of Realm Act, 1914 which was enacted during the First World War. It was akin to the act passed in 1818 during the Company's regime and it remained in force until 1927. During the World War II, the United Kingdom Parliament enacted the Emergency Powers (Defence) Act in 1939 when Britain entered the war.

It empowered the Parliament to impose any rules or regulations to secure public safety, to address the issue of law and order and to enable the efficient prosecution of war. During the First and Second World Wars, the British Parliament empowered the government to pass orders of preventive detention and the courts upheld the power on the ground of necessity in the constitutional decision of Liversidge v. Anderson, 1942 AC 206.

Furthermore, The Rowlatt Act of 1919 which was enacted by the Imperial Legislative Council accorded authority to the police officials to arrest suspects without a warrant. Also, the act permitted certain political arrestees to be tried without a jury and empowered internment of the detainees without judicial proceedings.

Their main motive was to substitute the repressive provisions of the Defence of India Act, 1915 which was passed during the First World War by a permanent legislation to prevent revolutionaries from actively participating in any protest.

As far as global history is concerned, this form of penalty has been in use in the civil- law countries, primarily France and Belgium. Preventive Detention was also used to some extent, by some autocratic leaders. Soviet Union, which is now Russia, exercised detention wherein the accused were comprehended as security threats to the ruling dispensation.

However, no powers of preventive detention were exercised by the British Parliament during times of peace. Nonetheless, some countries such as India and the USA recognize and continue the concept of preventive detention during irenic times as well.

Preventive Detention Enactments In India

Even after the cessation of the War, preventive detention was continued in India as an instrument to suppress apprehended breach of public order, public safety, and the like by the Provincial Maintenance of Public Order Acts, under which there was a spate of litigation. Preventive detention laws are repugnant to democratic constitution and they are not found in any of the democratic countries.

In A.K. Gopalan v. State of Madras AIR 1950 SC 27, Patanjali Shashtri, J., explaining the necessity of this provision said: "The sinister looking feature, so strangely out of place in democratic Constitution, which invests personal liberty with the sacrosanctity of a fundamental right, and so incompatible with the promises of its preamble, is doubtless designed to prevent the abuse of freedom by anti-social and subversive elements which might imperil the national welfare of the infant republic."

The Constitution of India capacitates both the Union Government and the State Governments to enact laws on the subject of "Preventive Detention". Entry 9 in List I of the Seventh Schedule of the Constitution empowers the Central Government to formulate statutes for matters relating to "preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India and persons subjected to such detention".

Similarly, Entry 3 in List III of the Seventh Schedule confers powers on Central and State Legislatures concurrently to legislate for matters relating to "preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community and persons subjected to such detention". This legislatorial power is applicable only to Part III of the Constitution which guarantees several fundamental rights to persons or citizens.

The first Preventive Detention Act was enacted by the Parliament on 26th February, 1950. The object of the act was to take precautionary measures to restrict a person from acting in a manner which could threaten the security of the nation and who make it wearisome for the government of the day to perform its duties.

Drafted by the first Home Minister of India, Sardar Vallabhbhai Patel, the Act of 1950, named as the "Preventive Detention Act, 1950" was a transitional law. Though initially it was thought of to be applicable only for a period of one year till 1951, yet it remained in force till 31st December, 1969 when it was abrogated.

A necessity arose again for the regeneration of the preventive detention laws when a situation of nihilism appeared on the front in 1971. The new enactment was named as 'The Maintenance of Internal Security Act, 1971, popularly known as MISA. It was largely similar to the provisions of the Act of 1950. The main motive of the act was to provide for detention in certain cases for the purpose of maintenance of internal security.

The law was amended several times during the National Emergency from 1975 to 1977. MISA was inserted in the 9th Schedule of the Constitution vide the 39th Amendment Act, thereby making it totally immune from any judicial review. The Janata-led government after its election, repealed the act in 1978 and the 44th Amendment removed it from the schedule as well.

In 1974, the Parliament passed the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, commonly referred to as the COFEPOSA. It was passed as an economic auxiliary to the MISA. While the MISA was aimed at controlling provocative activities, the COFEPOSA is aimed to prevent sociopathic activities like smuggling and racketing in foreign exchange. An extra power was required to check when inflation, black marketing, smuggling were rampant.

Later on, in 1980, another new enactment named as the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act was enacted. It aimed at prevention of black marketing and hoarding of essential commodities. Furthermore, power of preventive detention has been conferred on the Central and State Governments to safeguard defence and security of the country and to maintain public order by enacting the National Security Act, 1980. People inciting communal and caste based riots were also detained under the NSA. This enactment is considered a close iteration of the 1950 Act.

By the end of the 8o's, in 1987, another preventive detention law called the Terrorist and Disruptive Activities (Preventive) Act, 1987 or the TADA as it is called was formulated and passed. It was enacted with a view to dealing with specific situations of terrorism in Punjab, Kashmir and parts of the North-East India. The government can also detain a person to prevent him from disrupting public order or for maintenance of supplies and services essential to the community. Nonetheless, it was repealed in 1995 due to its widespread unpopularity because of the law being misused.

Many other coercive legislations like Armed Forces (Special Powers) Act, 1958 (AFSPA), the Essential Services Maintenance Act (ESMA, 1968) have also been brought forth. A controversial successor to such enactments include the Prevention of Terrorism Act (POTA, 2002), which was criticized for authorizing excessive powers for the aim of fighting internal and cross-border terrorism and political violence, without safeguards for civil freedoms.

Grounds Of Preventive Detention

Preventive Detention can be exercised under the following cases only:
  • Security of the State
  • Maintenance of public order
  • Maintenance of supplies and essential services and defense
  • Foreign affairs of the state

Constitutional Safegaurds Against The Preventive Detention Laws

The Constitution has acknowledged the necessity of the Preventive Detention laws. However, it has also provided some safeguards to reduce the force of their severity by curbing the legislative powers conferred on the Legislature.

A bench led by Justice Rohinton F. Nariman observed "Preventive detention is a necessary evil only to prevent public disorder. The court must ensure that the facts brought before it directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large."

Clauses (4) to (7) of Article 22 guarantee the following safeguards to a person arrested under preventive detention laws.

Article 22(4):
This clause reiterates that preventive detention of a person shall not be authorised extending three months period except on the report which contains a sufficient cause of detention by an Advisory Board.

Article 22(5):
This clause states that the grounds of detention shall be communicated to the detenu by the authority making such order and he shall be allowed to make a representation against the order of such detention.

Article 22(6):
This clause expresses that the authority making an order of detention is not pressed upon to divulge in facts which such authority considers to be against the public interest to disclose.

Article 22(7):
This clause provides that the Parliament may formulate laws as to:
  • The circumstances under which a person may be detained for a period longer than three months without the opinion of the Advisory Board.
  • The maximum period for which any person may be detained under any preventive detention law.
  • The procedure to be followed by an Advisory Board in an inquiry.

Preventive Detention And The Judiciary

  • Maneka Gandhi v. Union of India AIR 1978 SC 597
    The court held in this case that a law relating to preventive detention must now satisfy not only the requirements of Article 22 but also the requirements of Article 21 of the Constitution. The procedure prescribed under the preventive detention law must be reasonable, just and fair under Articles 14, 19 and 21 of the Constitution.
  • Ram Bahadur v. State of Bihar AIR 1975 SC 223
    The court in this case held that any order of detention would be deemed to be invalid if any ground was found to be vague where the order was based on distinct and separate grounds.
  • Attorney General of India v. Amrit Lal Prajivandas (1994) 3 SCC 234
    A nine judge constitution bench upheld the validity of two legislations, the COFEPOSA and the Smugglers and Foreign Exchange Manipulator (Forfeiture of Property) Act, 1976, or the SAFEMA. Since both these enactments were enacted with a view to meet the threat to the security of India, the efficacious execution of the laws was sustained by the apex court.
  • A.K. Gopalan v. State of Madras AIR 1950 SC 27
    The Supreme Court struck down Section 14 of the Preventive Detention Act, 1950 as unconstitutional on the ground that it precluded a judicial inquiry into the legality of the detention under the said act.

Preventive Detention, as a mode of restricting freedom of people can be considered to be fair for the purpose of protecting the nation's integrity and security. However, the laws so enacted should not be under the garb to beef up our national security and infringe our fundamental rights.

Preventive detention will, however, always be considered 'arbitrary' if safeguards for those arrested and detained are not complied with, in particular the right to judicial review of the lawfulness of detention. A hypothesis of the legality of preventive detention legislation within a State must therefore be adjudged and analyzed as pitch- perfect and correlative of the particular preventive detention measures.

  1. Bare Act: The Constitution of India, 1950 (Edition 2019)
  2. Constitutional Law of India by Dr. J.N. Pandey (56th Edition), Publishers Central Law Agency.
  3. Krishnadas Rajagopal, Preventive Detention A Necessary Evil Only To Prevent Public Disorder: Supreme: Court (Visited on 3.11.23)
  4. Claire Macken, Preventive Detention And The Right Of Personal Liberty And Security Under The International Covenant On Civil And Political Rights, 1966: (Visited on 4.11.23)
  5. Shreya Malhotra, Preventive Detention Laws In India: (Visited on 3.11.23)
  6. Preventive Detention:

Written By: Aanandita Tandon, Advocate practising in Chandigarh

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