-By Kumar Kartikeya and Avinash Kumar Yadav
Preventive detention implies holding an individual in custody of the police based only on suspicion that they may commit some wrongful cognizable act or pose harm towards society. The police have all the power to detain a person whom they strongly believe can commit a cognizable offence. For such an action, the police have the authority to make arrests without any warrant or any order from the magistrate.Article 22(3) of the Indian Constitution andSection 151 of the Code of Criminal Procedure (Cr.P.C, 1973) gives the power to make detainments based on mere suspicion of the police forces. Preventive Detentions can be extended from three months to two years. This period can be further elongated depending on the anticipation of the police.
Preventive detentions during colonial India and the internal emergency (1975-77):
The history of preventive detentions in India can be traced back to the time of the British Raj. The repressive rule of the British in India used preventive detention laws to overpower the dissenting voices of Indians. Various laws were enacted by the British to detain Indians who dissented against the Raj. Rowlatt Act (Anarchical and Revolutionary Crimes Act, 1919) had provisions of preventive detention where the government could detain anyone based on their opinion and detain any individual for two years without conducting the trial of the detenu.
Undoubtedly, a significant aspect of the colonial justice system in India was preventive detention. To a greater surprise, the makers of the Indian constitution who were oppressed the most because of the Preventive Detention Legislation did not fail to grant the Preventive Detention Statutory sanctity.
During the constituent assembly debates on preventive detention, Mahavir Tyagi argued with Dr. B.R. Ambedkar on putting preventive detention in the constitution. He said that “In Urdu, there is a couplet which says: ‘Kas rahe hain Apni minquaron se halqa jalka’. That is what really we are doing. We are making it easy and convenient and legal for future Governments to detain us. That is the meaning Sir, I do not wish to say more on this point. I only wanted to warn the House that if we pass this article as it is we will simply be making a provision that will be used against us.” But preventive detention found its place under the umbrella of Fundamental Rights under Article 22(3).
Sardar Vallabhbhai Patel, who revealed that he had several ‘sleepless nights’ in the prison due to detentions by the British, drafted the Preventive Detention Act (“PDA”) in independent India. Charging A.K. Gopalan, opposition leader, with PDA led to the landmark case of A.K.Gopalan Vs State of Madras, in which the majority judgment of the Supreme Court noted that the parliament or state assembly has the power to frame laws concerning preventative detention. If a state legislature or parliament makes any law on preventive detention, it is unquestionable and absolute. Only Justice Fazal Ali, in his dissenting judgment, took a progressive view supporting personal liberty and freedom, opposing the preventive detention law. This dissent later became law in theManeka Gandhi (1978).
A couple of decades later Mrs. Indira Gandhi, then Prime Minister of India, announced an internal emergency: laws relating to preventive detention were in use. Acts like theMaintenance of Internal Security Act (“MISA”) which gave the right to the states to detain and arrest citizens for one year without any trial or judicial process being conducted. It was implemented by the government to curb down the dissent of the political opponents during the period of emergency.
With the end of the emergency, MISA was stuck down, and the use of preventive detention was reduced. After the surreal emergency period, preventive detention was overlooked, and India moved towards its basic ideology of having personal liberty and freedom at its core. The age-long propensities of the authority have gradually reemerged to make preventive detention famous once more.
Use of Preventive detention Laws in recent times:
Jammu and Kashmir Public Safety Act, 1978, is one of the most frequently invoked legislation containing the provision of preventive detention law. Since the abrogation of article 370 from Jammu and Kashmir, there have been 450 preventive detention in the erstwhile state, according to the central government data. Among these detainees are some of the very prominent leaders and ex-CMs of the erstwhile state like Farooq Abdullah, Omar Abdullah, and Mehbooba Mufti. All of them were released after almost 1 year or more. Farooq Abdullah, a veteran politician and ex-CM of Jammu and Kashmir said that he is freed but his freedom is not complete until everyone under preventive detention is freed. He further said that these detentions have nothing to do with the security of the nation; the government has slapped these laws to curb the opposition voices.
In December 2019, when the nationwide protest of the Citizenship Amendment act (CAA) took place, the current regime exercised preventive detentions at a very high rate on the protesters. Only in December, when the CAA protest took place:5558 people were detained for preventive measures in Uttar Pradesh. Even after a year many of the detainees remain lodged up in prisons. As data produced by the central government, in2017: 67084, in2018: 98768,in 2019: 109912, people were detained under different laws that have preventive detention clauses.
The cases of preventive detention show that these laws are utilized by the authority to curb down the voices of dissent raised by the citizens or the political opponents. Preventive detention laws are viewed as abhorrent laws. Preventive detention laws are felicitous for authoritarian regimes, and there is a genuine need to present governing rules on these laws to forestall its abuse. There is an urgent need to survey these draconian laws before they become oppressive and silence all the voices of dissent.
That sort of rationale used while using preventive detention may have been appropriate only during the colonial period, for which keeping up law and order against fretful people was the essential concern. However, it cannot be reasonable for a democratic republic where the freedom of the citizen is the paramount concern.
Constitutional courts on Preventive detention:
The criminal justice system works to arrest and detain a person based on credible sources, and police need to produce the individual in any court within 24 hours of the arrest without any investigation, and a review process is also conducted on them periodically. The legal structure additionally conveys shields for the arrested person. The arrested person can have a lawyer of their discretion. Notwithstanding, with preventive detention, no protection on arrest is given to the detenu. In cases of preventive detention, the arrested person is not informed of his reason for the arrest in many instances, not even after two weeks of the arrest. The detenu is not only denied the right to legal representation but also is not produced in front of a judge after the arrest.
Arrests under preventive detention are a blatant abuse of fundamental rights entitled to the citizens. Particularly, when the right to life and personal liberty has undergone tremendous changes in their interpretation, with the intent, to safeguard the rights of the citizens. Still over-looking preventive detention is a matter of concern when there is a sudden increase in preventive detention cases. The courts have reliably taken the side of the authorities in most instances. It is here what we need to take into consideration that our constitution states laws on preventive detention, but, these laws are not absolute, they are subject to the test of reasonableness and proportionality.
The courts have neglected to examine preventive detention with any measure of meticulousness, personal liberty, or freedom. Also, under preventive detention, the arrested person is not allowed to go to court at first, but they are to be presented before an advisory board. As the precedents reflect, the advisory boards are hesitant to go against the state and put their request against detention aside. Keeping an individual in prison without any trial is an infringement of the rule of law, whether the Constitution mentions it or not. Its utilization should be restricted to some cases, either during an emergency or during a war-like situation. Courts from their side ought not to be reluctant in putting aside preventive detention cases.
Democracies like the United States of America and the United Kingdom are alien to the preventive detention laws. Their criminal justice system works on due process of law. No other nation except India exercises preventive detention during peacetime.
Preventive Detention laws should not be used, irrespective of the circumstances. The courts should deal with preventive detention cases on their merits and give cardinal importance to personal freedom and liberty. If preventive detention keeps on being slapped on people like it is being done in these years, how far is it justifiable to keep individuals in jail without producing them in court, or without examining them to a judge, and without any legal representation? It is for the constitutional courts to come in and ensure that the ideals of constitutions are kept intact and “the people” do not lose faith in the courts or the constitution.
[Kumar Kartikeya is a student of law and Avinash Kumar Yadav is a third year law student at National Law University, Delhi.]