INTRODUCTION:

Preventive Detention is a unique and interesting provision of the Indian Constitution according to which any person can be arrested without even actually violating any law of the land. In this connection D. D BASU says, “preventive detention means detention of person without trial. "The aim of such a detention is not to punish the individual but to prevent that person from doing a wrong and unconstitutional act. According to Finley, “it is not punitive but a precautionary measure. "

Preventive Detention law was passed in1950 for the first time. According to this law any person could be arrested and detained if his freedom would endanger security of the country, the foreign relations, public interests or otherwise necessary for the country.

When there was a severe criticism of this legislation by the democratic forces in the country, it was abolished in December, 1969. In 1971, the central government passed the maintenance of Internal Security Act, 1971 (MISA) IN PLACE OF THE Preventive Detention. This law was also dropped by the Janta Government when it came into power in 1977. However, the provision of the Preventive Detention is stilln present in the Indian Constitution.

Working Of Preventive Detention in India:

Within a month of the enactment of the Indian Constitution in 1950, the Preventive Detention Act 1950 was introduced. Since then Indian democracy’s history has been replete with the use of laws containing preventive detention clauses. The Preventive Detention Act (PDA) 1950 was formulated to take requisite State action against communists in Telengana.

This was enacted as an emergency provision and was expected to lapse after a short duration of time. However, the Preventive Detention Act remained in force for about two decades after it was enacted.

Taking from the work of Upendra Baxi (1982), Singh (2007) has argued that it is important to understand the different registers present within the legal system in India. After the enactment of the Preventive Detention Act 1950, it can be argued that there has existed the Preventive Detention System within the legal system in India and this has run parallel to the Criminal Justice System. Baxi (1982) suggests that these two systems are different in terms of their object, standards of justice and the manner of power sharing.

The Preventive Detention System is based on the assumption that repression of ideological and political State opposition, is its main task. It exists on providing minimum adherence to due process of law and gives more importance to decisions made by the executive part of the government. The legislation and use of extra-ordinary laws and provisions comes under the Preventive Detention System.

On the other hand, the Criminal Justice System functions on the assumption that social defense is the primary object of law. It uses due process of law as its strategy. Additionally, it gives importance to the judiciary in interpretation of laws and legal procedures, as it is pro-accused in its outlook. It has been argued that both these systems comprise the legal system in the Indian context as they symbolize the contradictory pulls and pressures present within the Indian legal system.

In the context of the war between India and China in 1962, the Defense of India Act (DSA) 1962 was introduced. This also had provisions for preventive detention. Singh (2007) has argued that this gave the Central government the power to create rules for ensuring the security, public order, military operations of the State. Even during the wars with Pakistan in 1965, and 1971, the Indian State continued to detain people under the Defense of India Act 1962.

Next, the Unlawful Activities Prevention Act (UAPA) was passed in 1968. Within the ambit of this law the Indian State could declare any organization illegal and could imprison anyone for interrogation if the said organization or person critiqued/questioned Indian sovereignty territorially.

In 1969, the Preventive Detention Act lapsed as it did not get the requisite support form the then Prime Minister Indira Gandhi. After this for a period of two years, no Central government initiated preventive detention laws were enacted though different states still had their own preventive detention laws.

The Maintenance of Internal Security Act (MISA) was passed in 1971. It was framed along the contours of the Preventive Detention Act 1950. Singh (2007) suggests that MISA had provisions which were based on Article 22 (4) and (5) of the Indian Constitution. These concerned stringent provisions for detention and the opportunity to respond legally to the accusations made against the detainee.

The Defense of India Act 1971 introduced some provisions in MISA making it even more stringent. During the period of National Emergency in India from 1975-77, MISA was used as one of the instruments by the executive to extensively detain people who did not support the Indian government (Noorani, 2012).

With the 39^th Amendment and the 42^nd Amendment to the Indian Constitution, MISA was strengthened and was made a part of the Indian Constitution itself. In 1976, the Supreme Court also held the validity of MISA. The powers of the Central government were strengthened to create further such laws.

In 1977, the Janata Party government repealed MISA. At the same time the Janata Party government did not repeal other extra-ordinary laws such as Armed Forces Special Powers Act and the UAPA. In 1978, the 44^th Amendment was introduced to the Constitution which made it harder for the government to use extra-ordinary provisions.

Preventive Detention Laws Formulated By Central Government in India:

It was made more difficult for subsequent governments to declare emergency, the government’s power to infringe upon fundamental rights was restricted and minimum protection accorded under the ambit of preventive detention laws was expanded. Although both the houses of the Indian parliament passed this Amendment, the provisions mentioned were not officially notified. This made it possible for preventive detention legislations to still be passed.

Noorani (2012) has argued that preventive detention provisions in subsequent legislations continued to become more stringent. For instance, the National Security Act 1980 was amended in 1984 and 1987 in order to respond to the political turmoil in Punjab and in this process the protections accorded to detainees were thinned down further.

With the above-mentioned amendments, people could be detained for up to six months without seeking permission/approval for the detention from an Advisory Board. These amendments also made it difficult for the courts of law to invalidate detention orders.

The anti-terror laws which have been introduced subsequently, including Terrorist and Disruptive Activities (Prevention) (TADA) Act 1985 and Prevention of Terrorism Act (POTA) 2002 had provisions for preventive detention. Under these laws, a person could be detained for up to a period of 180 days or under TADA for a period of up to even one year. It has been argued that these laws were misused to target minorities and disadvantaged groups in some states in India.

TADA and POTA were repealed but most of their provisions live on in different versions of the UAPA. The UAPA has been recently amended in the wake of the terror attacks in Mumbai in 2008. Under the ambit of this law it is possible to detain a person for unto 90 days without charge and further it is possible to detain a person for up to 180 days if the Public Prosecutor is able to prove that the investigation has not been completed.

Preventive Detention Laws Formulated By Different State Governments in India:

It needs to be pointed out that in addition to these Central government laws, there have also existed state laws in India, which have had provisions for preventive detention. For instance the Jammu and Kashmir Public Safety Act (PSA) 1978 has severely restricted the rights of the detainees. Under the ambit of this law a person can be detained for a period of up to a year if it is deemed that she/he can act to disturb public order, and can be detained for up to two years if his/her actions are deemed to upset the security of the state.

The PSA also allows the detaining authorities discretion in terms of deciding the manner in which the person has to be detained, in other words the detaining authorities can decide upon the severity of circumstances under which a person is being detained and the manner in which the investigation has to be carried out. An Advisory Board is to be approached within a period of eight weeks each time a person id detained in order to get approval for the detention.

It has been argued that the actual implementation of the PSA has been even worse that than its inherent provisions permit (Noorani, 2012). For instance, authorities have many times not informed the detainees of the reasons for which they are being detained. Further those held under preventive detention have faced torture in different forms. The government authorities have even used the provisions of PSA to detain political opponents. For instance, in 1999 most of the leaders of the All Parties Hurriyat (Freedom) Conference were held under detention.

Similarly in the context of Assam, the Assam Preventive Detention Act 1980 has been in force. This law is similar to the PSA in many ways and allows for protracted period of time for keeping someone in preventive detention. This act allows for keeping someone in detention on vague grounds.

Thus, both at the level of the Central government and at the level of the state governments preventive detention laws have been formulated since independence in the Indian context.

Rights Of An Arrested Person (Article 22(1) And 22(2):

A person cannot be arrested and detained without being informed why he is being arrested.

A person who is arrested cannot be denied to be defended by a legal practitioner of his choice. This means that the arrested person has right to hire a legal practitioner to defend himself/ herself.

Every person who has been arrested would be produced before the nearest magistrate within 24 hours.

The custody of the detained person cannot be beyond the said period by the authority of magistrate.

The Article 22(1) and 22(2) make the above provisions. However, Article 22(3) says that the above safeguards are not available to the following:

If the person is at the time being an enemy alien.

If the person is arrested under certain law made for the purpose of “Preventive Detention“

The first condition above is justified, because when India is in war, the citizen of the enemy country may be arrested. But the second clause was not easy to justify by the constituent assembly. This was one of the few provisions which resulted in stormy and acrimonious discussions.

Preventive Detention As “Evil” Of Article 22:

Constitution of India has several flaws and Article 22 is the worst flaw in that.

Under Article 22, preventive detention may be implemented any time and the constitution expressly allows an individual to be detained — without charge or trial so it is a devastating blow to personal liberties of the citizens of the country.

It obviates the Article 4 of the International Covenant on Civil and Political Rights (ICCPR) which permits that rights can only be limited “in time of public emergency which threatens the life of the nation” because it allows detention in peacetime as well.

It does not provide any procedural protections such as to reduce detainees’ vulnerability to torture and discriminatory treatment; and to prevent officials’ misusing preventive detention for subversive activities.

The long period of detaining (3 months) poses a threat of torture.

Constitution of India allows the government to pass preventive detention laws against its own citizens in the name of national security and “maintenance of public order” as per Entry 9 of List I and Entry 3 of List III of the Constitution, this is quite unbelievable.

In the absence of proper safeguards, preventive detention has been misused, particularly against the Dalits and the minorities.

The Power of states to form similar legislations has been misused.

Before a preventive detention case is brought before the High Court, a three member Advisory Board headed by a sitting High Court Judge is constituted by the government to examine whether the detention is justified or not. But, the proceedings of the Board are confidential except for that part of the report which expresses the opinion of the Board.

The provisions about the preventive detention had been the subject of controversy from the very beginning. Dr. B.R. Ambedkar while commenting on this provision had stated in the constituent Assembly, “we have to admit that the present government shall have to detain a person who is endangering the security of the nation and public services. Under these circumstances, I do not think that the freedom of the individual should supersede the interests of the state. ” Dr. B.R Ambedkar had also stated that the independence of the country was in a state of inflancy and in order to save it, the preventive detention was essential. it will be used only against the enemies of democracy.

But it is fact that quite a large number of the members of the constituent Assembly were critical of the provisions of preventive detention. In this connection H.V Kamath had said, it is a day of sorrow and shame. may god help the Indian people. “Pt. Thakur Dass Bhargava was also critical of these provisions. He dubbed it as the Crown of all our failures. ” Similarly, Bakshi tek Chand also regarded the preventive detention as a charter of oppression and denial of liberty. ’ The following can be advanced against the provisions of preventive detention:

· The constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of State’s security; public order, disruption of national economic discipline, etc. are envisaged as a necessary evil to be administered under strict constitutional restrictions.

· India is a large country and many separatist tendencies against the national security and integrity existed and existing and a strict law is required to counter the subversive activities.

· The number of persons detained in these acts is not a very large and due attention is made before preventive detention.

· Having such kind of acts has a restraining influence on the anti-social and subversive elements.

· The state should have very effective powers to deal with the acts in which the citizens involve in hostile activities, espionage, coercion, terrorism, etc.

· The citizens of India have enjoyed the personal liberty for a long period since independence except two years of emergency.

· Such acts are required to deal with the antisocial elements such as terrorist attacks on innocent people which target lot of lives.

The PDA is a “necessary evil”. In a country like India where a lot of subversive activities are being carried out by our own citizens, the philosophy of the Article 22 remains valid even today akin to the conditions prevalent in the country at the time of independence.

REFERENCES:

1. Basu, Durga Das Shorter Constitution of India -New Delhi: Prentice-Hall of India, 1988.

2. Basu, Durga Das Introduction to the constitution of India -New Delhi: prentice-hall of India Pvt. Ltd. 1995.

3. Basu, Durga Das Introduction to the Constitution of India -New Delhi: Wadhwa and Company Law Publishers, 2002.

4. Bakshi, P. M. The Constitution of India -Delhi: Universal Law Publishing, 2002.

5. Chaube, Shibanikinkar Constituent Assembly of India -New Delhi: Manohar, Publishers and Distributors, 2000.

6. Coupland, R. The Constitutional Problems in India -London: Oxford University Press, 1945.

7. Datar, Arvind P. Datar on Constitution of India, Agra, Wadhwa and Co., 2001.

8. Hasan, Zoya and E. Sridharan (ed.) India's Living Constitution: Ideas, Practices, Controversies -Delhi: Permanent Black, 2002.

9. Jain, Subhash C. The Constitution of India: Select Issues and Perceptions -New Delhi: Taxman Publications, 2000.

10. Kagzi, M. C. Jain, The Constitutional of India Vol. 1 and 2. -New Delhi: India Law House, 2001.

11. Pylee, M. V. Our Constitution Government and Politics -Delhi: Universal Law Publishing Co. Pvt. Ltd., 2002.

12. Pylee, M. V. Constitutional Amendments in India -Delhi : Universal Law, 2003.

13. Mathew, P. D. Fundamental Rights in Action -New Delhi: Indian Social Institute, 1996.

14. Raj, Hans, The Constitution of India -New Delhi: Surjeet Publications, 1998.

15. Ramana, M. V. V. Inter-State River Water Disputes in India -New Delhi: Orient Longman, 1992.

16. Seervi, H. M. Constitutional Law of India Vol. I and II, III -Bombay: N. M. Tripathi, 1991.

17. The Constitution of India, Commemorative Edition Ministry of Law and Justice, Government of India.

Received on 02.06.2019 Modified on 10.06.2019

Int. J. Rev. and Res. Social Sci. 2019; 7(2):453-456.

DOI: 10.5958/2454-2687.2019.00036.4