Preventive Detention Laws In India: A Necessary Evil

This article is written by Tasneem Hussain Legal content writer at Lawyers Troop

Table of Contents

Abstract

This paper aims at deliberation over the validity of preventive detention laws in India. For this purpose, we shall look into the history and origin of these laws. The Britishers used the preventive detention laws to suppress the freedom fighters and silence their voices for freedom.

The British, through various enactments and orders, tried to crush the Indians, arrest the popular leaders so that the masses become direction-less and create a fear among the people. All basic Rights were denied to them. Post-Independence, the drafting community of the Constitution, having awareness of the intention of the Britishers behind these laws, made space for preventive detention laws in the Constitution of India.

Through this paper, we shall discuss, how through various laws, the British tried to control our freedom and how post-independence, the validity of these laws is frequently discussed and debated upon.

Introduction to Preventive Detention Laws

In simple words, preventive detention is an act of the State by which it arrests people based on scepticism in order to avoid the happening of a suspected crime that the person is suspected to commit. In case of preventive detention, no offence is proved nor any charge is formulated and justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence.¹

Article 22(3)(b) of the Constitution of India is a restriction on the Right to be protected from arrest and detention when the person is preventively detained. This law deprives a person of his/her personal liberty. Article 22(5) of the Constitution of India grants every detainee the Right to know the grounds on which he has been detained and the Right to representation.

There is a difference between an arrest and preventive detention. In case of an arrest, a person is charged of a crime and presented before a magistrate within 24 hours whereas in case of preventive detention, it merely aims at detaining a person to avoid a mishappening.²

This law has majorly been misused in various instances. The British introduced various preventive detention laws in order to gain control over the masses. After independence, the constitutional validity of such laws has been challenged on various grounds which we shall discuss.

Preventive Detention during the Colonial Period

The instances of British Government’s reprehensible detentions without trials and justifications were numerous. The British very astutely framed and codified such laws. After the first war of Independence, severe laws were imposed upon the people. However, the history of these laws can be traced back to the establishment of the East India Company.

The Regulating Act of 1773 and the Permanent Settlement Act of 1793, though not directly introducing preventive detention laws, aimed at limiting the Fundamental Rights of the people.³

The first preventive detention law which was introduced by the Company was that any person who appears to be a threat to the British settlement in India can be detained. It was under the East India Company Act of 1874 and East India Company Act of 1793. Later, through the Bengal State Prisoner’s Regulation, 1818, detention without trial by executory powers on the grounds of public order and security of the State was codified. This provision left the detainees unaware of the grounds for their detention. It was nothing but a tool to quash any political uprising against them.

In 1878, the British passed the Vernacular Press Act in order to limit the people’s freedom of speech and expression. The Indian Penal Code, 1860 and the Criminal Code of Procedure, 1898 provided for preventive arrests under various grounds like suspicion. The Police had powers to arrest without warrant.

After 1900, the freedom struggles had begun to gain grounds. Various freedom movements were witnessed in different parts of the Country. Media had become a major source to spread the message of freedom across the nation. The British, intimidated by these activities, brought in a series of legislations to supress these movements including the Newspapers (Incitement to Offences) Act, 1908.

Then it went on to pass the Indian Press Act, Prevention of Seditious Meetings Act and the Criminal Tribes Act.⁴ All these legislations paved a way for the British to arrest people on preventive grounds and crush those who were raising voices against them.

After World War I, the British passed the Rowlatt Act, 1919 which allowed detention without any trial for up to 2 years. This Act faced a lot of criticism from the common folks. The aim of the Act was to establish and tighten their grip and control over the masses. The Government Act of India, 1935 also had provisions for the preventive detention.

All these were pre-independence laws established by the Colonisers aiming at repressing Indian masses from fighting for freedom. These laws were a pathway towards complete control of the British over the Indian territory and its people. The intention behind such legislations was malafide.

Preventive Detention Laws Post-Independence

The Drafting Committee of the Constitution of India did provide for preventive detention laws in the Constitution. Further, many such laws were brought into action or were abrogated. Soon after the Constitution was formed, the first bill relating to the preventive detention practices was passed.⁵

Presently, the Parliament and State legislatures can make provisions for preventive detention for the purposes of Defence, Foreign Affairs and Security of India.⁶ However, these provisions should be made subject to Article 22 of the Constitution of India. Under Article 22(4), no provision can sanction the detention of any person for more than 3 months without the approval of the Advisory Board.

The Preventive Detention Act was abrogated in 1969 and two years later, another Act with provisions similar to the Preventive Detention Act was passed. This law was known as the Maintenance of Indian Security Act.⁷ This law lapsed in 1978 and the National Security Act was established.⁸ Under this Act, the Central and State Governments, Magistrates and Police Commissioners are entitled with the power to arrest anyone on the basis of reasonable suspicion.

Constitutional Validity

We need to understand that the intention behind introducing such preventive detention laws in India by the British was to dominate the common folks and to create a feeling of fear amongst the masses so that no one defies the British rule and challenge its policies. However, as a result of the struggles of our freedom fighters, we live in a Sovereign and Republic State which promotes the ideals of equality and justice.

The Constitutional validity of preventive detention laws has been challenged several times since independence. In 1950, when the Preventive Detention Act was passed, its constitutional validity was challenged in A.K. Gopalan versus State of Madras, Union of India⁹. It challenged that this Act is in violation of Article 14, Article 19 and Article 21 of the Constitution of India. However, the Supreme Court sustaining the Constitutional validity of the Act, held that the Act was in compliance with Article 22(5) of the Constitution.

In Ankul Chandra Pradhan versus Union of India¹⁰, it was held that preventive detention laws are not to punish the detainee but to stop him from committing any offense. In the judgement of Ahmed Noormohmad Bhatti versus State of Gujarat¹¹, the Supreme Court upheld the constitutional validity of Section 151 of Criminal Procedure Code, 1973, which grants Police the power to arrest and detain any person without warrant to prevent him from committing a cognizable offence.¹²

The validity of the Maintenance of Internal Security Act, 1971 was challenged in the case of Additional District Magistrate, Jabalpur versus S.S. Shukla¹³. The Supreme Court of India upheld the Constitutional validity of the Act saying that it was a rule of evidence and cannot be challenged under Part III of the Constitution of India.

The National Security Act, 1980 received criticism from across the country. The Act was criticised mainly because of its misuse by various officials as the Act did not define “public order” and “state security” which were the grounds of detention¹⁴.

Author’s Opinion

The seeds of preventive detention laws were sown by the Britishers with intentions to rule our country. They used these laws to their advantage and unfortunately, we are replicating it. Preventive Detention laws are necessary to protect the interests of the majority and ensure safety and peace of the masses. The problem comes to surface when these laws are misused. There have been many instances where the Preventive Detention laws are widely misused to protect the interests of the Government or officials.

There are various cases where Police have taken advantage of these laws for their own benefit since arrest warrants are not required for such detentions. In the name of Public order and state security, various innocent minorities like the Dalits have been a victim of the abuse of such laws. Now the major issue arises is that whether such abuse and mishandling of laws make the law unconstitutional in itself?

The answer laid by the Supreme Court is NO. The fact that these laws have been exploited cannot be ignored. However, it cannot make the laws void in itself. These laws have prevented the happening of crimes which could have resulted in disasters. If these laws do not prevail, no terrorist could be captured on the basis of suspicion, no potential violence rallies could have prevented and no crimes could have stopped until they were attempted.

Also, allegations on such laws being violative of Fundamental Rights cannot be repudiated.

What we require is a more transparent system of preventive detentions. The grounds on which arrests are made should be codified in such a manner that it leaves no room for any false detentions or misuse of authority. We also require a fast-track system of Judiciary to look solely into these matters. It is true that personal liberty is at stake when we talk about preventive detention. But we need to understand that every Right comes with a restriction. What we need to analyse and limit are the definition of such reasonable restrictions and their scope.

Therefore, we can conclude that such laws are necessary evils and need to be dealt with utmost reasonability and caution.

Footnotes

MLJ: Civil Court Manual Volume 10, Part III Fundamental Rights
MLJ: Civil Court Manual Volume 10, Part III Fundamental Rights
Shodhganga, Chapter II, Preventive Detention Laws
Shodhganga, Chapter II, Preventive Detention Laws
Shah Ashfaq, Preventive Detention, Legal Services India
Constitution of India, Schedule 7
The Anatomy of an Institutionalized emergency: Preventive Detention and Personal Liberty in India, Michigan Journal of International Law, 2001, Volume II, Issue II
The Anatomy of an Institutionalized emergency: Preventive Detention and Personal Liberty in India, Michigan Journal of International Law, 2001, Volume II, Issue II
(1950) 2 MLJ 42 (S.C.)
AIR 1997 SC2814
2005 (3) SCC 647
Preventive Detention and Constitution of India- Effect on Human Rights
1976 AIR 1207
A Legal History of NSA, Jannani Murugan and Alifiya Khan, 26 May, 2018.