PREVENTIVE DETENTION: AN EVIL OF ARTICLE 22

Harshit Sharma1

ABSTRACT

Preventive Detention laws are repugnant to any democracy and is not found to exist in
democratic countries of the world. It is unknown to America, it is resorted only during war
time in England but nowhere in the world has this formed an integral part of the Constitution,
as in the case of India. The personal liberty of the individual is guaranteed to the citizens under
Article 21, Part 3 of the Constitution of India and curtailed to considerable limits in the sub-
clauses of the very next Article i.e. Article 22 of the Constitution of India. It is the time that the
Parliament must analyse the validity of these laws on the anvil of Constitutionality and make
necessary amendments to its provisions to safeguard the liberty of the individual from being
subjected to the interests of the State.

Keywords: Article 21; Constitution of India; Preventive Detention; Democracy

1
3rd Year BBA LLB Student, ITM University, Raipur
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INTRODUCTION

Preventive detention, the practice of incarcerating accused individuals before trial on the
assumption that their release would not be in the best interest of society—specifically, that they
will be likely to commit additional crimes if they were released. 2 Preventive detention is also
used when the release of the accused is felt to be detrimental to the state’s ability to carry out
its investigation. In common parlance, Preventive Detention means detention of a person
without trial and conviction by a Court, but merely on suspicion in the mind of an executive
authority. To make it easier to understand, a person can be put in jail/custody for two reasons:

1. One is that he has committed a crime, and

2. Another is that he his potential to commit a crime in future.

The custody arising out of the latter is preventive detention. The Preventive Detention laws are
repugnant to modern democratic Constitutions. They are not found in any of the democratic
countries except India. These preventive detention law raises substantial questions on the
safeguards of citizens as provided by Article 22 and liberty of an individual arrested on a mere
suspicion.

METHODOLOGY

The methodology adopted for this legal Research is Doctrinaire. The problem is analysed in
the light of the social, political and legal issues, Constitutional provisions and other relevant
statutory materials along with relevant case laws touching on the topic. The method of research
is Critical Research Method with Descriptive search design. The data is collected from
secondary authoritative sources.

HISTORICAL BACKGROUND OF PREVENTIVE DETENTION IN INDIA

Pre-Independence (British Regime)

Before independence, the British government took recourse to it to suppress nationalist

movements. The first statutes which contained specific provisions for preventive detention
were the East India Company Act, 1784 and the East India Company Act, 1793 aimed solely
to detain anybody who was regarded as threat to the British Settlement in India.

2
Norton Jerry, Preventive Detention, Encyclopaedia Britannica.
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Post-Independence

In the normal course of things preventive detention laws should have lapsed after India attained
Independence; but the founding fathers of our Constitution decided to retain preventive
detention to curb anti-national activities. One of the first Acts of independent India was the
Madras Suppression of Disturbances Act (1948) that authorized the use of military violence
against the peasants in Telangana. The first Preventive Detention Law passed by the Parliament
in 1950 was The Preventive Detention Act, 1950. The Constitutional validity of this act was
challenged in the Supreme Court in the A.K. Gopalan’s Case3 whereby, the Supreme Court
held this Act constitutionally valid except some provisions. This Act extended till 31 December
1969, being re-enacted seven times in the process before it expired, to make it valid for 3 more
years.

After the expiry of this Act in 1969, the Maintenance of Internal Security Act (MISA) was
enacted in 1971, followed by its economic adjunct the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act (COFEPOSA) in 1974 and the Terrorism and
Disruptive Activities (Prevention) Act (TADA) in 1985. Though MISA and TADA have been
repealed, COFEPOSA continues to be operative along with other similar laws such as the
National Security Act (NSA) 1980, the Prevention of Black marketing and Maintenance of
Essential Commodities Act 1980 and the draconian Prevention of Terrorism Act (POTA) 2002;
not to mention laws with similar provisions enacted by the State governments.

CONSTITUTIONAL PROVISIONS FOR PREVENTIVE DETENTION

At present the provisions pertaining to preventive detention in the Indian Constitution are
contained in Article 224 and in List I (Entry 9) and List III (Entry 3) of the Seventh Schedule. The first
two provisions of the Article 22 are to be applied in cases of general rights of arrested persons. Both
these parts provide that the arrested person should be informed about the reasons for arrest as soon as
possible, such person will have the right to consult a legal attorney and within 24 hours will have to be
produced before a magistrate.

However, part 3 of Article 22 provides that the safeguards and provisions presented in the first
two parts of Article 22 are not to apply to people who are arrested under any preventive

3
AIR 1950 SC 27
4
Protection against arrest and detention in certain cases.
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detention laws. This implies that the persons who will be detained under preventive detention
will not immediately have the right to know the reasons for the detention (unless decided
otherwise), nor will they have the right to have an attorney and nor will they be produced before
a magistrate within 24 hours of arrest.

GROUNDS OF DETENTIONS AND REPRESENTATIONS

Clause (5) of Article 22 gives two rights to the detenu. First, he has the right to be
communicated the grounds on which the order of detention has been made against him and that
is to be done ‘as soon as may be’.5 Communicating here means imparting to the detenu
sufficient knowledge of all grounds of detention which are in the nature of charges against him.

The other right which the detenu has been given is that he should be afforded the earliest
opportunity of making a representation against the order. But without getting sufficient
information to make a representation against the order of detention, it is not possible for a
detenu to make a representation. In fact, the right will be illusory.

MISUSE OF PREVENTIVE DETENTION LAWS

Preventive detention laws in the country have come to be associated with frequent misuse.
Such laws confer extraordinary discretionary powers on the executive to detain persons. In the
absence of proper safeguards, preventive detention has been grossly misused, particularly
against the Dalits and the minorities. Several States have a law popularly known as the
‘Goondas Act’ aimed at preventing the dangerous activities of specified kinds of offender. The
Supreme Court in its order struck down the detention of a man who had allegedly sold spurious
chilli seeds in Telangana, holding that the grounds of detention were extraneous to the Act.

Section 3 of NSA gives the Central Government the power to detain any person if the
government is 'satisfied' that it is 'necessary' to do so with a view to prevent him from acting in
any manner prejudicial to any one or more of the following interests of the State:

(i) Defence of the State

(ii) Relation of the State with foreign power
(iii) Security of the State

5
Surjeet Singh V. Union of India, (1981) 2 SCC 359
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 (iv) Public order; and
(v) Maintenance of supply of services essential to the community.

Since none of these concepts are capable of being defined with any great degree of certainty
and definiteness, the scope of abuse is admittedly colossal.

The Preventive Detention laws are arbitrary in nature to the extent that the provisions under
Section 15 of the TADA Act stand in complete contravention to the rule of evidence laid down
under Section 26 of the Indian Evidence Act, 1872. While Section 26 of the Evidence Act
clearly states that Confession by accused while in custody of police is not to be proved against
him, however, the provisions under Section 15 of TADA Act stipulates that certain confessions
made to police officers can be taken into consideration as evidence and be proved against him.

In Kashmir the Preventive Detention Laws have been blatantly misused and the arbitrary arrest
and detention of those peacefully voicing dissent is continuing in Jammu and Kashmir, India,
with the Public Security Act (PSA) increasingly being used to punish those who criticise the
government.

Another law which is misused is the COFEPOSA, under which a person found in possession
of contraband can be imprisoned without trial and bail for a period of one year despite the
possibility that the person may have been duped into carrying the contraband, because, it is
often seen that baggage carried by people in good faith on behalf of their friends or relatives
contains smuggled goods and they end up in prison under COFEPOSA. Unfortunately, the law
does not recognise innocence even in such genuine cases.

PROCEDURAL LAPSES

Normally 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. Surprisingly, the proceedings of the Board
are confidential except for that part of the report which expresses the opinion of the Board. But
what is more appalling is the denial of the detenu's fundamental right to be represented by a
professional lawyer before the Board. This is a blatant violation of human rights and goes
against Article 22(1) of the Constitution.

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It takes up to six months or sometimes even more before a habeas corpus petition is filed and
is taken up by the High Court, and till such time the detenu languishes in prison under extremely
trying conditions, as per the reports of Prison Statistics in India 2015 6 a number of 2,599
inmates including 37 foreigners are detenu.

CONCLUSION

Man was born free and was left free by the Creator in this world. Therefore, right to personal
liberty is the birth right of a man and this right should be free from any sort of restraint and
coercion. Preventive Detention, as peacetime measure, is in itself an abhorrent power and it is
quite unreasonable to resort to such measures for administrative convenience. Preventive
Detention as enshrined under Article 22 strikes a devastating blow to personal liberties. It is
therefore clear that preventive detention is harmful to a secular democracy like India as it is
extremely prejudicial to personal liberty. As the existing laws are more than sufficient to deal
with any offence, the government must seriously consider abolishing all preventive detention
laws which have consistently exposed not only the shabby investigative skills of the sponsoring
authority, but also their illogical and mechanical application by the detaining authority.

6
National Crime Records Bureau, Ministry of Home Affairs.
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REFERENCES

Books:
o Shukla V.N., CONSTITUTION OF INDIA, Eastern Book Company, 10th Edn, 2001
o Dr. Pandey J.N., CONSTITUTIONAL LAW OF INDIA, Central Law Agency, 53 rd Edn,
2016
o Dr. Ashutosh, LAW OF PREVENTIVE DETENTION, Universal Law Publishing
Company, 2014 Edn.

Articles:
o Jaiswal Vijay, PREVENTIVE DETENTION IN THE INDIAN CONSTITUTION, Sept 02
2013, Important India.

Newspapers:

o PREVENTIVE DETENTION AN ANACHRONISM, September 07 2004, The Hindu

(Online Edition)

Case Laws:

o A.K. Gopalan vs. State of Madras, AIR 1950 SC 27

o Surjeet Singh V. Union of India, (1981) 2 SCC 359

Web links:

o https://www.britannica.com/topic/preventive-detention, visited on: 5th November,

2017, visited at: 06:57 pm.

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