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Preventive Detention

Preventive detention means to detain a person so that to prevent that person from commenting on any possible crime or in other words preventive detention is an action taken by the administration on the grounds of the suspicion that some wrong actions may be done by the person concerned which will be prejudicial to the state. Preventive Detention is the most contentious part of the scheme fundamental rights in the Indian constitutions Article 22(3) provides that if the person who has been arrested or detained under preventive detention laws then the protection against arrest and detention provided under article22 (1) and22 (2) shall not be available to that person.

History of The Preventive Detention Law And Position In Other Countries

India became free in 1947 and the Constitution was adopted in 1950. It is extraordinary that the framers of the Indian Constitution, who suffered most because of the Preventive Detention Laws, did not hesitate to give Constitutional sanctity to the Preventive Detention Laws and that too in the Fundamental Rights chapter of the Constitution. Some parts of Article 22 are not Fundamental Rights but are Fundamental Dangers to the citizens of India for whom and allegedly by whom the Constitution was framed, to usher in a new society, with freedom of expression and freedom of association available to all. In 1950 itself, a Prevention Detention Act was piloted by Sardar Patel, who said that he had several '"sleepless nights'" before he could decide that it was necessary to introduce such a Bill The first Preventive Detention Act was enacted by the Parliament on 26th February 1950. And in 1950, under this Act, ordinary disturbers of order and peace were not arrested, but a political leader of A.K. Gopalan's eminence was arrested. Even from that initial action, it was evident that these Acts were meant to curb political dissent, and that legacy has been and is being followed.

From the time the country secured its Independence till 1977, except for a period of nearly two years from 1969-1971, free India had the dubious distinction of having these extraordinary, mischievous and 'unlawful' laws throughout. It is worth bearing in mind that no other civilized country, including Britain which brought Preventive Detention laws here, felt compelled to introduce such laws during peace time. Even during the last World War, most European countries and the USA, who were all directly involved in the war, had no such law. During the War, England introduced a Preventive Detention Law to the effect that a person could be detained only on the subjective satisfaction of the Home Minister of Great Britain and not on the subjective satisfaction of a puny magistrate, as it the case here. Further only one person.

Sir Osward Mosley, a rabid Nazi, was detained under this Act. In1971, because of tremendous political turmoil which resulted in assassinations and destruction all over Ireland, the British Government introduced preventive Detention Act for Ireland. But it immediately formed a committee headed by Lord Gardiner to probe and to find out if it was necessary to have such an Act even in Ireland. The Gardiner Committee Report reads: '"Preventive Detention can only be tolerated in any democratic society in the most extreme circumstances. It must be used with the utmost restraint and retained only so long as it is strictly necessary. Our Constitution, since its enactment, has had a peculiar feature the fundamental rights guaranteed under it allow preventive detention without trial. Article 22 after providing that any person arrested must be produced before a court within 24 hours of arrest tenders this almost nugatory by permitting the state to preventively detain persons without any judicial scrutiny. The debates in the Constituent Assembly show that the need to provide for preventive detention was generally accepted.

The observations of Alladi Krishnaswamy Ayyar, a distinguished jurist is typical: he described preventive detention a necessary evil because in his view there were people detained to undermine the sanctity of the Constitution, the security of the State and even individual liberty. What the members tried to do was not to prohibit preventive detention but to incorporate safeguards against its abuse in the Constitution by limiting the period, by giving effective powers to the advisory board to review detention orders, etc. This they failed to get. It was left to Parliament to prescribe the period and even that limit was flouted in spirit by the device, often adopted, of serving a fresh detention order a few hours after releasing the detenu, advisory boards had no power to go into the merits of the detention. The solution is simple; scrap all laws of preventive detention. It is, however, difficult to see that happening in the near future.

I would suggest a first step which would remove some of the more undesirable features of preventive detention. The only justification for preventive detention is to safeguard society from persons who are out to destroy it. If that is the justification and that is the only justification officially given, let it be provided that all those detained under any detention law be kept either in the ordinary jails or in special detention center’s run by the jail authorities. Such a change does not require fresh legislation. Both the National Security Act and Cofeposa authorize the State to specify the place and conditions of detention. The state must be directed to ensure that detenus must be taken to ordinary jails within 24 hour of detention and be kept there. In the past, that was the pattern of preventive detention. Thousands of nationalists rounded up by the British during the Independence movement were so detained. NO order of detention can be passed to aid the police or other authorities to investigate the crime or other offences; what justifies to investigate the crime or other offences what justifies detention is the satisfaction of the appropriate authority that the detention of a particular person is necessary.

Once a detention order is passed, that is the end of the matter as far as the detaining authorities are concerned that being so the detaining authority must have no access to the detenus. Even after such a change since the laws will enable the detaining authorities to detain without trial persons believed to be indulging in grave anti-social activities the object, and ostensibly at least, the only object of such laws can still be achieved. The state cannot have any rational objection to such a change. Both the National Security Act and Cofeposa merely authorize the detention of persons who see. It is argued, a danger to society if free. If the state does object to such changes it will expose its true motive and also the manner in which detention laws are being abused persons are detained so as to extract information from them.

Object of The Preventive Detention:

The object of Preventive Detention is not to Punish but to prevent the detenu from doing something which is prejudicial to the State. The satisfaction of the concerned authority is a subjective satisfaction in such a manner. It comes within any of the grounds specified like
# Security of the State,
# Public Order,
# Foreign affairs,
# Services essential to the community.
Mariappan vs The District Collector And others
It was held that object of detention and the detention laws, is not to punish, but, to prevent the commission of certain offences.

Grounds For Preventive Detention:

Preventive detention can, however, be made only on four grounds.
The grounds for Preventive detention are:
# Security of state, maintenance of public order,
# maintenance of supplies and essential services and defense,
# foreign affairs or security of India.
A person may be detained without trial only on any or some of the above grounds. A detainee under preventive detention can have no right of personal liberty guaranteed by Article 19 or Article 21.

Safeguards Provided In Constitution:

To prevent reckless use of Preventive Detention, certain safeguards are provided in the constitution.
# Firstly, a person may be taken to preventive custody only for 3 months at the first instance. If the period of detention is extended beyond 3 months, the case must be referred to an Advisory Board consisting of persons with qualifications for appointment as judges of High Courts. It is implicit, that the period of detention may be extended beyond 3 months, only on approval by the Advisory Board.

# Secondly, the detainee is entitled to know the grounds of his detention. The state, however, may refuse to divulge the grounds of detention if it is in the public interest to do so. Needless to say, this power conferred on the state leaves scope for arbitrary action on the part of the authorities.

# Thirdly, the detaining authorities must give the detainee earliest opportunities for making representation against the detention.
These safeguards are designed to minimize the misuse of preventive detention. It is because of these safeguards that preventive detention, basically a denial of liberty, finds a place on the chapter on fundamental rights. These safeguards are not available to enemy aliens.

Preventive Detention in India is a Constitutional Tyranny

India is one of the few countries in the world whose Constitution allows for preventive detention during peacetime without safeguards that elsewhere are understood to be basic requirements for protecting fundamental human rights. For example, the European Court of Human Rights have long held that preventive detention, as contemplated in the Indian Constitution is illegal under the European Convention on Human Rights regardless of the safeguards embodied in the law. South Asia Human Rights Documentation Centre (SAHRDC), in its submission to the NCRWC in August 2000, recommended deleting those provisions of the Constitution of India that explicitly permit preventive detention. Specifically, under Article 22, preventive detention may be implemented and infinitum - whether in peacetime, non-emergency situations or otherwise. The Constitution expressly allows an individual to be detained - without charge or trial for up to three months and denies detainees the rights to legal representation, cross-examination, timely or periodic review, access to the courts or compensation for unlawful arrest or detention.

In short, preventive detention as enshrined under Article 22 strikes a devastating blow to personal liberties. It also runs afoul of international standards. Article 4 of the International Covenant on Civil and Political Rights (ICCPR) - which India has ratified admittedly permits derogation from guaranteeing certain personal liberties during a state of emergency. The Government, however, has not invoked this privilege, nor could it, as the current situation in India does not satisfy with standards set forth in Article 4.

If preventive detention is to remain a part of India's Constitution, it is imperative that its use is confined to specified, limited circumstances and include adequate safeguards to protect the fundamental rights of detainees. Particular procedural protections are urgently needed:
(i) to reduce detainees' vulnerability to torture and discriminatory treatment
(ii) to prevent officials misusing preventive detention to punish dissent from Government or from majority practices; and
(iii) to prevent overzealous government prosecutors from subverting the criminal process.

In pursuit of these goals, SAHRDC made the following recommendations in its submission to the NCRWC. First, Entry 3 of List III of the Constitution of India, which allows Parliament and state legislatures to pass preventive detention laws in times of peace for "the maintenance of public order or maintenance of supply and services essential to the community", should be deleted. Assuming that preventive detention could be justified in the interest of national security as identified in Entry 9 of List I of the Constitution, there is still no compelling reason to allow this extraordinary measure in the circumstances identified in Entry 3 of List III.

Second, lacking clear guidance from the Constitution, courts have appeared vague and toothless standards - such as the subjective "satisfaction" of the detaining authority test - to govern the implementation of preventive detention laws. If preventive detention is to remain in the Constitution, constitutional provisions must include well-defined criteria specifying limited circumstances in which preventive detention powers may be exercised - and these standards must be designed to allow meaningful judicial review of the official's actions.

Third, under Article 22 (2) every arrested person must be produced before a magistrate within 24 hours after arrest. However, Article 22 (3) (b) excepts preventive detention detainees from Clause (2) and, as a consequence, it should be repealed in the interest of human rights. AT present, detainees held under preventive detention laws may be kept in detention without any form of review for up to three months, an unconscionably long period in custody especially given the real threat of torture. At the very least, the Government should finally bring Section 3 of the Forty-fourth Amendment Act, 1978 into effect, thereby reducing the permitted period of detention to two months. Though still a violation of international human rights law, this step would at least reduce the incidents of torture significantly.

Fourth, the Advisory Board review procedure prescribed by the Constitution involved an executive review of executive decision-making. The absence of judicial involvement violates detainees' right to appear before an "independent and impartial tribunal", in direct contravention of international human rights law including the ICCPR (Article 14 (1) and the Universal Declaration of Human Rights (Article 10). The Constitution must be amended to include clear criteria for officials to follow, and subject compliance with those standards to judicial review.

Fifth, the Constitution provides that the detaining authority must refer to the Advisory Board where detention is intended to continue beyond three months. No provision exists for the consideration of a detainee's case by the Advisory Board more than once. Yet, periodic review is indispensable protection to ensure that detention is "strictly required" and fairly administered. Hence, the constitution should mandate periodic review of the conditions and terms of detention.

Sixth, detainees must receive detailed and prompt information about the grounds of their arrest. Currently, the detaining authority is required only to communicate the grounds of detention to the detainee "as soon as may be" after the arrest. Article 9 (2) of the ICCPR provides that "[a] anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him". Detainees must be guaranteed a minimum period in which the grounds are promptly communicated to them, and be given information sufficient to permit the detainee to challenge the legality of his or her detention.
Seventh, individuals held under preventive detention must be given the right to legal counsel and other basic procedural rights provided by Articles 21 22 (1) and 22 (2) of the Constitution. Article 22 (1) of the Constitution, for example, guarantees the right to legal counsel, but Article 22 (3) (b) strips this right from persons arrested or detained under preventive detention law. Relying on these provisions, the Supreme Court stated, in A.K. Roy v. Union of India, that detainees do not have the right to legal representation or cross-examination in Advisory Board hearings. Contrary to India's constitutional practice, the U.N. Human Rights Committee has stated that any persons arrested must have immediate access to counsel". Article 22 (3) (b) of the Constitution - denying detainees virtually all procedural rights during Advisory Board hearings - must be repealed.

Eighth, Article 9 (5) of the ICCPR provides the right to compensation for unlawful detention, except during public emergencies. A similar provision creating a right to compensation is included in section 38 of the Prevention of Terrorism Bill of 2000 (though the bill is otherwise effectively a reconstitution of the lapsed Terrorist and Disruptive Activities Prevention Act (TADA). The Law Commission charged with reshaping the antiterrorism legislation observed that Supreme Court orders have held that people are effectively entitled to compensation, in practice superseding India's reservation to Article 9 (5) of the ICCPR. In this light, the Government of India should promptly withdraw its reservation of Article 9 (5) of the ICCPR and Include a Constitutional provision guaranteeing the right to compensation.

In keeping with the overriding spirit of the Constitution and with minimum standards of international human rights law, it is essential that the Constitutional reforms discussed above be adopted. The process set in motion by establishing the NCRWC provides a unique opportunity for such an important realignment of India's Constitution with prevailing international human rights standards. The key will be political willpower and the commitment to seeing justice done.

Constitutional Validity Of Preventive Detention Law:

A three-Judge Bench of the Supreme Court in
Ahmed Noor Mohamad Bhatti V. State of Gujarat, AIR 2005
while upholding the validity of the power of the Police under section 151 of the Criminal Procedure Code 1973 to arrest and detention of a person without a warrant to prevent the commission of a Cognizable offense ruled that a provision could not be held to be unreasonable as arbitrary and therefore unconstitutional merely because the Police official might abuse his authority.

This preventive detention act is a necessary tool in the hands of the executive which authorizes them to arrest any person from whom reasonable suspicious arises that he can commit any cognizable offense or his activities are prejudicial to law and order to state and the police can arrest that person without warrant.

A.K. Gopalan Vs. The State of Madras
The preventive Detention Act, 1950, with the exception of section 14 thereof did not contravene any of the Articles of the Constitution and even though section 14 was ultra vires inasmuch as it contravened the provisions of Article 22 of the Constitution, as this section was severable from the remaining sections of the Act, the invalidity of Section 14 did not affect the validity of the Act as a whole and the detention of the petitioner was not illegal.

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