Introduction
‘Preventive detention’ refers to the physical detention of a person without any trial in order to prevent him from doing an act which is undesirable and poses a threat.[1] The threats may include the ones to the security of India or security of the state, defence and foreign affairs, public order or maintenance of supplies and services essential to the community.[2] India is one of the very few countries that provide for laws on preventive detention even in peacetime. The second part of Article 22[3] of the Indian Constitution deals with the cases concerning preventive detention law, whereas the first part deals with detention under the ordinary law. A person detained under preventive detention law loses his rights of personal liberty guaranteed under Article 19[4] and Article 21[5] of the Constitution. There are various laws that deal with preventive detention in India. In this article, we aim to explain with clarity the provisions of Article 22 and then analyse some of the preventive detention legislation that are there in existence currently.
Preventive Detention and the Provisions of Article 22
Laws under preventive detention could be formulated by the centre as well as the states. Centre derives such powers from List 1 of the Seventh Schedule wherein they have been granted with the exclusive power to make laws on defence, foreign affairs and security of India.[6] The states, on the other hand, get their powers from List 3 of the Seventh Schedule, thereby having concurrent power to make such laws on subjects including maintenance of public order, the security of state and maintenance of essential services.[7] The second part of Article 22 of the Constitution provides for the safeguards against Preventive Detention. An advisory board is constituted to hear out to the cases of preventive detention. Article 22(4) mentions that a person detained under such laws can not remain arrested for more than three months unless the advisory board is of the opinion that the time period needs to be extended further on.[8] Additionally, the clause specifies that the extended time period cannot exceed the maximum prescribed limit as given in the particular statute under which the person got arrested. Article 22(7) gives parliament the power to decide in what cases could the three months be extended, what procedure shall the advisory board follow to conduct enquiry and what maximum periods of detention are given in different preventive detention acts.[9] Article 22(5) specifies that the person detained needs to be informed of the grounds on which he was arrested, and also obligates the government to provide the right of representation to the person.[10] And, Article 22(6) mentions that the authority could decide to not disclose that information which it thinks could be against the public interest.[11]
Acts on Preventive Detention
Since independence, several preventive detention acts have been passed by the central government as well as the state governments. Preventive detention, as a concept is highly invasive of personal liberty and thus, all these statutes have come out to be controversial because of the alleged human rights violation and misuse. We will now discuss some of the important preventive detention laws in detail.
Preventive Detention Act, 1950– This was the first such act that came into force in independent India. Being a controversial statute, its constitutional validity was challenged in the case of K. Gopalan v. State of Madras [12]. Though, the court declared the act to be valid and intra vires the Constitution of India except for some provisions. According to the court, the law could not be called unconstitutional merely because it lacked due process or principles of natural justice. Section 14[13] of the Act contravened some of the provisions of Article 22(5) of the Constitution reason being that it did not allow a person the right to be disclosed about the grounds under which the detention order was made against him. But this one section did not affect the overall validity of the act it being separable from rest of the sections. This act, however, expired in the year 1969. And, the ruling in A.K. Gopalan was reversed three decades later in the case of Maneka Gandhi v. Union of India wherein the doctrine of separability as propounded in the former case got overruled.[14]
Armed Forces (Special Powers) Act, 1958– This act entrusts armed forces with the power (including that of preventive detention) to maintain ‘public order’ in the disturbed areas. ‘Disturbed area’ refers to the one that is notified under section 3 of the Act.[15] And, it can be invoked in the places where the use of armed forces in aid of civil power is necessary. Under the powers conferred by the act, armed forces can restrict gatherings, use force or open fire on warning if they feel the person is in contravention of the law, and if reasonable suspicion exists, they can even arrest a person & search premises without a warrant, and also prohibit the possession of firearms. This act is majorly effective in the north-eastern states of Assam, Nagaland, and parts of Manipur and Arunachal Pradesh. The act has always remained under a constant attack of the human rights organisations that term it as an aggressive and controversial statute. Mrs. Irom Sharmila has been one of its strongest opponents in the state of Manipur as she went on a hunger strike in the year 2000, which ended after a long period of 16 years.[16]
Unlawful Activities Prevention Act, 1967– This act which came into being in the late 1960s was recently amended by the NDA government in 2019 to tackle growing terrorism and Naxalism in the country.[17] Unlike other significant acts, the provisions of UAPA are applicable throughout India. It aims at prevention of certain unlawful activities of individuals as well as associations alongside dealing with terrorist activities and other concerned matters. Its provisions apply to both the citizens of India as well as the people from abroad.[18] After the recent amendment, the National Investigation Agency can declare an individual also as a terrorist which was earlier only restricted to the organisations.[19] This statute also has always remained under the close scrutiny of the human rights groups, and alongside, it is feared that the government could misuse this law for the promotion of its own interests.
National Security Act, 1980– This too is a preventive detention act and is often termed a close iteration of the erstwhile act of 1950. It empowers the Centre as well as the State governments to detain a person in order to prevent him from doing actions which may be detrimental to the national security. Under this act, the maximum period of detention is 12 months which can even be extended if the government finds fresh evidence.[20] NSA is under extensive criticism for its constant misuse by the authorities. The detentions made under this act are not recorded by the National Crime Records Bureau (NCRB) for there is no provision for registration of FIRs in the statute. Thus, there are no exact figures regarding the number of arrests that have been made under the NSA.[21] It has also been argued time and again that the governments use this act as an extrajudicial power.
These were some of the most important statutes that involve preventive detention. There have been several other similar acts in independent India, some of which got repealed over time and the remaining ones continue to remain in existence. The ones that are there in force today include the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 among others.
Conclusion
The laws on preventive detention are almost always seen in the wrong light because they infringe on the fundamental rights of an individual. Also, the statutes remain prone to misuse by the authorities and are often used as extrajudicial tools by different governments. Gross human rights violations take place when arbitrary arrests are made just to further the interests of the political class and without any conclusive evidences. It essentially creates a situation when a person who has committed no crime is deprived of his liberty. The same also goes against the principle of ‘innocent until proven guilty’ that is followed in the Indian legal system. Preventive detention is justified to the extent that it helps in maintaining public order but what actually constitutes public order remains a matter of serious concern. As a solution, the entire process must run according to the ‘procedure established by the law’ and the elements of arbitrariness need to be given up at the earliest. Also, the safeguards provided to the detainees under Article 22 must be strictly adhered to by the concerned authorities.
The article is authored by Hardik Batra (NUJS Kolkata, 2024)
[1] https://www.britannica.com/topic/preventive-detention (Website)
[2] Political Science: Semester 1, University of Delhi by Pravin Kumar Jha, Page no. 386 (Book)
[3] Article 22, The Constitution of India, 1950.
[4] Article 19, The Constitution of India, 1950.
[5] Article 21, The Constitution of India, 1950.
[6] List-1, 7th Schedule, The Constitution of India, 1950.
[7] List-3, 7th Schedule, The Constitution of India, 1950.
[8] Article 22(4), The Constitution of India, 1950.
[9] Article 22(7), The Constitution of India, 1950.
[10] Article 22(5), The Constitution of India, 1950.
[11] Article 22(6), The Constitution of India, 1950.
[12] A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
[13] Section 14, Preventive Detention Act, 1950.
[14] Maneka Gandhi v. Union of India, 1978 AIR 597.
[15] Section 3, Armed Forces (Special Powers) Act, 1958.
[16] https://www.thehindu.com/news/national/what-is-afspa-and-where-is-it-in-force/article23648102.ece (The Hindu- Website)
[17] Unlawful Activities (Prevention) Amendment Act, 2019.
[18] https://www.jagranjosh.com/general-knowledge/unlawful-activities-prevention-act-1967-1564055853-1 (Website).
[19] https://economictimes.indiatimes.com/news/politics-and-nation/parliament-approves-amendment-to-uapa-bill-nia-gets-power-to-label-individual-as-terrorist/articleshow/70500418.cms (Website).
[20] https://www.jagranjosh.com/general-knowledge/what-is-the-national-security-act-1980-1586240033-1 (Website).
[21] https://www.thehindu.com/news/national/what-is-national-security-act/article26292232.ece (Website).