INTRODUCTION-
The term detention also known as confinement or imprisonment means arresting someone or taking them into custody. Preventive detention is a practice which involves individuals getting jailed even before a proper trial takes place. It is simply based on the assumption that their release will not be best for the public. They would cause even more significant harm to society if they are not not confined or arrested. In cases involving preventive detention, it is not necessary that the crime has been committed, the essential element here is that there is a possibility that the crime will be committed and that will be detrimental to the public at large. It can be done by legal means or illegal means as well. When someone is taken into custody for the purpose of national security then preventive detention comes into play.
There are two types of detention-
1.Punitive detention
2.Preventive detention
Punitive detention- It is a type of detention when the person is taken into custody for the criminal offence that he has committed or an attempt has been made towards the commission of the crime.
Preventive detention- It is a type of detention where the crime has not been committed but there is a possibility that the crime will be committed and to prevent that the individual is arrested to prevent the crime from taking place. The central government as well as the state government can make laws on preventive detention.
The word ‘preventive’ is not the same as ‘punitive’ as said by Lord Finley on account of R. v. Halliday[ R v Halliday 1889], that it isn’t punitive but a preventive measure. Preventive detention can also be termed as administrative detention since it is directed by the executive and the decision-making is completely in the hands of the administration.
In the case of Mariappan v. The District Collector and Others[ Mariappan v. The District Collector and Others, 2008], it was held that the point of detainment and its regulations aren’t to rebuff anybody yet to prevent specific wrongdoings from being carried out. In the case of Union of India v. Paul Nanickan and Anr[ Union of India v. Paul Nanickan and Anr], the Supreme Court stated that the motivation behind preventive detainment isn’t to rebuff somebody for doing wrongdoing or an offence yet to deflect that person from not making it happen, to stop him before an offence happens. Preventive detention is based on a suspicion or reasonable possibility that a crime will take place and not on any criminal conviction so there must be sufficient proof against that person that such a crime will take place.
The Indian constitution provides various remedies to people who are arrested or detained under Article 22(1) and Article 22(2) of the Indian constitution, and in case of preventive detention, remedies are provided under Article 22(4) and 22(5) of the Indian constitution. There have been various laws put forward to protect the rights of detainees under preventive detention but it still is unsettled as to have far these laws protect and safeguard the interests of the detainees. The judiciary plays a significant role in safeguarding the rights of the individuals who are arrested but in cases involving preventive detention the coercive power is in the and of the executive. Indeed, even the review of the conduct of the detenu is given to the advisory Board which is additionally an authority. In this circumstance, the detaining authorities might mishandle and abuse authority and power, which hurts the major right of individual freedom of the detenu. The regulations directing preventive detainment are repulsive to the modern democratic constitution. To comprehend it in a superior manner, the ability to keep any person as a preventive measure has turned into a temperamental device given in possession of state hardware which may be utilised to achieve their unlawful reason. The use of preventive detention is controversial, as it can infringe on an individual’s personal liberty provided under Art 21 of the Indian Constitution. The authorities may abuse their power and use preventive detention to suppress dissent and silence political opposition. Therefore, it is essential to have robust legal frameworks that define the scope of preventive detention, its purpose, and the circumstances in which it can be used.
HISTORY OF PREVENTIVE DETENTION-
The history of preventive detention dates back several centuries, and it has been used by various governments and societies for different purposes. One of the earliest recorded uses of preventive detention was during the Roman Empire when the emperor had the power to detain individuals suspected of committing crimes without trial. In medieval Europe, monarchs and rulers had similar powers to detain individuals without trial for political reasons or to maintain social order. During the 20th century, many countries introduced preventive detention laws as a response to perceived threats to national security or public safety. For example, in the United States, the Alien and Sedition Acts of 1798 allowed for the detention of foreign nationals who were deemed a threat to national security, while the internment of Japanese-Americans during World War II was justified as a form of preventive detention. Taking India into consideration we can see that it has a vast tradition of preventive detention, even though it has been mentioned in the constitution it still is not well secured. Indian constitution very well recognises preventive detention but proper regulations regarding the same are not very much available. It has a long history in India, dating back to the colonial period. The British government in India introduced preventive detention laws in the late 19th century to suppress political dissent and maintain colonial rule.
After India gained independence in 1947, the newly-formed government continued to use preventive detention as a tool to maintain internal security and suppress political dissent. The first preventive detention law in independent India was the Preventive Detention Act, 1950, which allowed for the detention of individuals deemed a threat to public order, security, or morality. In landmark case of AK Gopalan vs State of Madras[ Gopalan v. State of Madras, AIR 1950 SC 27] the validity of preventive detention was questioned taking into consideration personal liberty. It was held that preventive detention is constitutionally valid except for section 14 which is illegal and ultra-virus to the constitution. It was also held that article 21 is applicable to preventive detention.
Subsequently, the government of India introduced several other preventive detention laws, including the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) in 1974, the National Security Act (NSA) in 1980, and the Prevention of Terrorism Act (POTA) in 2002. These laws have been used by successive Indian governments to detain individuals without trial, often for long periods, on the basis of vague and subjective grounds. Human rights organizations and civil liberties advocates have criticized the misuse of preventive detention laws in India, arguing that they violate the fundamental rights and freedoms guaranteed by the Indian Constitution.
IMPACT ON PERSONAL LIBERTY-
Preventive detention has been criticized in India for violating personal liberty and due process rights. The validity of preventive detention was challenged in AK Gopalan vs the State of Madras. It was stated that the act was constitutionally valid except for certain provisions under it. It also restricted the ambit of Article 21 and Article 22. The Supreme Court stated that detention could be justified if it was done under the legally established procedure.
In the landmark judgement of Maneka Gandhi vs UOI, the Supreme Court stated that personal liberty under Article 21 had a wider ambit. The court stated that Article 21 does not exclude Article 19 and any law cannot deprive citizens of their personal liberty.
Article 22(4) to Article 22(7) safeguards the rights of individuals who have been detained under preventive detention. Any law which is formulated against this clause infringes fundamental rights and is constitutionally invalid Anyone who is detained under preventive detention may be detained only if there is a valid reason for the detainment. The only problem is that to find out that the reason is just and valid there must be an advisory board that must decide on the same but this can only take place after 3 months. Critics argue that individuals who are detained without trial or formal charges are denied the opportunity to defend themselves and have their day in court. The use of preventive detention in India has also been associated with the detention of political dissidents and activists who are critical of the government. This has led to concerns about the abuse of power and the erosion of democratic values in India. In the case of Prem Narayan v. Union of India[ Prem Narayan v. Union of India, 2008], the Allahabad High Court stated that infringement upon the personal freedom of an individual and it can’t be infringed in an easygoing manner anyway despite such alerts, courts the greater part of the time have condoned infringement of liberty, basically giving no answer for the person for his affliction. In the case of Mariappan vs The District Collector And others (2014) the Madras HC stated that the goal of preventive detention is not to punish an individual but to keep them from doing any act that is against the public order. The HC stated 4 criteria under which the law can be used that is-
1. State security,
2. Public order,
3. Foreign Affairs, and
4. Community services.
Even though there have been various judgments condemning preventive detention, there has been wide misuse of such acts. Article 22 was infact to protect the rights of the detainees rather than curtail the right to life and personal liberty.
CONCLUSION-
Preventive detention is a controversial legal concept that continues to be used in India to detain individuals who are perceived as a threat to the state. While it is often justified as a necessary measure to protect national security or public order, it has been criticized for violating personal liberty and due process rights. As such, any use of preventive detention in India must be balanced against the fundamental principles of a democratic society, including the right to a fair trial and the presumption of innocence. The government must ensure that the use of preventive detention is limited, targeted, and subject to appropriate legal safeguards to prevent abuse and protect personal liberty. Preventive detention is a serious invasion to personal liberty and it should be curtailed and the government should make sure that there is no misuse of power.
References-
- Constitution of India bare act
- Constitution of India by DD Basu
- Personal Liberty Vis A Vis Preventive Detention- legal service India
- Preventive Detention and Personal Liberty in India- University of Michigan Law School Scholarship Repository
- Preventive detention- Britannica
Payel Singh
3rd year (5th sem) at MIT-WPU, Pune
