Preventive Detention: Purpose and Implications

The article 'Preventive Detention: Purpose and Implications' intends to analyze the concept of Preventive Detention in India and its interpretation by the Indian courts from time to time.

A Brief Introduction: Preventive Detention

Preventive detention, a concept that is highly prevalent throughout the world, specifically the civil law countries is a practice of incarcerating a person in the interest of society if the state apprehends any threat to the society by release of such a person. Even though this concept has been prescribed through legislation, this has always been under the scanner, whether it be the courts or the society at large. Some people consider it as a requisite measure in the interest of society, on the other hand, some people consider it as a denial of fundamental rights.

Legislative Background of Preventive Detention

The Concept of Preventive Detention gives the power to police, to arrest any individual merely on the suspicion that such individual might commit criminal conduct or can cause harm to society at large. This eventually empowers the police authorities to arrest anyone, which could also be without any warrant or authorization by the magistrate in certain cases.

During the Pre-Independence era, Preventive Detention was an inevitable part of the colonial legal system, and Indian people were subjected to gross misuse of the same. However, the framers of the Indian Constitution did not hesitate to provide statutory validity to the same by including it within the Constitution of Independent India.

Article 22 of the Indian Constitution specifically governs the procedures regarding Preventive Detention in India. Time and again various legislations have been introduced prescribing preventive detention such as there have been various Act such as Maintenance of Internal Security Act, 1971 (MISA), Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974 (COFEPOSA), Terrorist and Disruptive Activities (Prevention) Act,1985 (TADA), Prevention of Terrorism Act, 2002 (POTA) and Unlawful Activities (Prevention) Act,1967 (UAPA) and the Courts have provided their interpretations to the preventive detention to ensure that it is not being misused by the state in any manner by relying upon Article 22 of the Constitution.

Types of Detention: Punitive and Preventive Detention

Detention can be broadly classified into two types i.e., Preventive Detention and Punitive Detention:

1) Preventive detention is a detention wherein the arrest is made merely on the suspicion that an individual might commit criminal conduct or can cause harm to society at large.

2) Punitive detention is a detention wherein the arrest is made where an offence has been already committed or an attempt has been made to commit such an offence.

Legislative Safeguards Available to a Detained Person

Even though numerous legislations are prescribing preventive detention in India, Article 22 of the Indian Constitution has been acting as a steward to certain rights which is vested with the detained person during preventive detention ensuring that the state is not exceeding its authority and the detainee is protected:

By Article 22 clause (1), the arrested person must be informed of the grounds of arrest and shall not be denied the right to consult, and to be defended by, a legal practitioner of his choice.

By Article 22 clause (2), the detainee shall be produced before the judge within the time frame of twenty-four hours and such individual cannot be detained beyond that period without the authority of the Magistrate.

By Article 22 Clause (4), No law providing for preventive detention shall authorise the detention of a person for a longer period than three months.

By Article 22 clause (5), When someone is detained under a preventive detention law, the authority must promptly inform them of the reasons for their detention and give them the earliest chance to challenge the detention

Government Reports on Preventive Detention

The National Crime Records Bureau, Government of India, through its latest crime statistics released in the year 2021, highlighted that the number of preventive detentions in the year 2021 saw a drastic rise of 23.7% in comparison to previous years, wherein approximately 1 lakh people were detained.

The NCRB statistics have raised serious concerns about the usage of preventive detention since there have been various instances wherein the authorities have misused preventive detention in contravention of the constitutional mandates.

Important Case Laws

In the landmark case about preventive detention in India i.e., A.K Gopalan v. State of Madras, 1950 AIR 27 where the lawfulness of the Preventive Detention Act, 1950 was challenged before the court, Hon’ble Justice Das while deciding the case, held that

“A procedure laid down by the law-making body may offend the Court’s feeling of equity and fair play and sentence given by the legislature may shock the Court’s idea of penology, yet that is a completely superfluous question. Our security against legislative tyranny, if any, lies in free and canny public opinion which should, in the long run, stand up for itself.”

In the case of Prem Narayan v. Union of India, Habeas Corpus No. - 27130 of 2019, the Hon’ble Allahabad High Court held that preventive detention can be construed as an infringement upon the personal freedom of an individual and the same shall not be infringed.

In the case of Khudiram Das v. State of West Bengal, AIR 1974 SC 806, while adjudicating the preventive detention made under the Maintenance of Internal Security Act, 1971 (MISA), the Hon’ble Supreme Court held that Courts can’t impose its substitute its supposition with that of the authority responsible for preventive detention, since it does not have the power to consider the depth of the grounds.

In the case of Shibban Lal Sakshena v. State of Uttar Pradesh, 1954 AIR 179, the Hon’ble Supreme Court of India held that it was not within the competency of the courtroom to enquire into the reality or factual aspects of the case which is referenced as the grounds of detainment.

In the case of Shri Pawan Kharetilal Arora v. Shri Ramrao Wagh & Others, CWP No.545 of 2009, the Hon’ble Bombay High Court held that even if the grounds of confinement is based on the gross nature of mistakes and the detainee was detained for nine months on the bogus grounds, the authorities could not be made liable since they acted with basic honesty and sought apologies.

In the case of Mariappan v. The District Collector and Others, H.C.P.(MD) No.244 of 2014, the Hon’ble Madras High Court laid down certain defined criteria for preventive detention and held that the objective of preventive detention is not to punish the detainee but to keep them from doing anything which could eventually be detrimental to the State.

Conclusion

Even though we have ample legislation prescribing preventive detention, the concept of preventive detention is still unsettled as far as the rights and interests of detainees are concerned. The existing frameworks are majorly conducive to an arbitrary exercise of powers and need to be reformed by the legislature. Meanwhile, the judiciary plays a crucial role in cases of preventive detention wherein the coercive power is being misused by the executives and the interest of the detainee requires immediate attention.

References

[1] Constitution of India, Available Here

[2] Crime in India 2021, Available Here

[3] Preventive Detention, Available Here

[4] Shreya Malhotra, Preventive Detention Laws in India, Available Here

[5] Shah Ishfaq, Preventive Detention, Available Here

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