PREVENTIVE DETENTION IN INDIA: LEGAL ANALYSIS OF CONSTITUTIONAL SAFEGUARDS AND CHALLENGES

Nazim Khan, LL.M , Aligarh Muslim University, Aligarh

Abdul Majid, LL.M, University of Delhi 

ABSTRACT

Preventive detention refers to detain without trial. The goal of such detention is not to punish the individual, but to refrain that person from doing a harmful act. This is the most disputed and debatable legal system in India. Article 22 of the Indian Constitution addresses preventative detention, and the use of preventive detention raises concerns about potential abuse and violations of fundamental rights. This article discusses India's legislative framework for preventive detention, analysing its constitutionality and alleged arbitrary implementation. This article provides historical backdrop of preventive detention in India and how it evolved from colonial era to contemporary times. Several laws have been passed during this time such as the Preventive Detention Act, 1950, Maintenance of Internal Security Act, 1971 and now in present time National Security Act, 1980. It further examines constitutional safeguards, including the requirement of advisory board reviews, limitations on detention periods, and the right to legal representation, while assessing their effectiveness in curbing potential abuse of power. Judicial pronouncement plays an important role in preventive detention. This article highlights judicial evolution regarding preventive detention and how judiciary balances individual liberties against Stats’s preventive powers. This article also critiques the inherent ambiguities in detention laws, the discretion power granted to authorities, and the lack of accountability mechanisms that contribute to misuse. This study focuses on the constitutional difficulties and practical challenges associated with preventative detention in India, highlighting the urgent need for reforms. It advocates for clearer legislation, more judicial monitoring, and improved safeguards to avoid abuse while maintaining national security. The study presents a plain examination of preventative detention's position in India's legal and constitutional framework.

I.               INTRODUCTION

Preventive detention is a legal mechanism which permit the state to detain any person without formal charges or trial if there is suspicion or a reasonable likelihood that the person might commit an offense in the future—preventive detention aims to prevent potential threats of public order or national security. Article 22 of the Constitution deals with preventive detention and its use often sparks debate about its compatibility with fundamental rights and its potential misuse it.  In India, the practice of preventative detention dates back to the period of British colonization, such as Bengal Regulation III Act of 1818, the Defence of India Act, of 1915 and The Rowlatt Act of 1919 also known as the “Black law”, allowed for indefinite detention without formal trial or judicial  review. These laws were designed to suppress dissent and maintain imperial control. After the independence, preventive detention was retained in the Constitution. This was the debatable and controversial topic in the constituent assembly. Many members concerned that it will be misused. One of the constituent assembly’s member Purnima Banerji said “ Sir, the Article… is very serious one as it persons as it takes away some of the liberties granted by Article 15 as fundamental rights and provides for the arrest of persons and even detention of persons without trial… any form of detention of persons without trial is obnoxious to the whole idea of democracy and to our whole way of thinking.”  And she was also concerned about the detainee's family, how they will earn, and ensuring that the family receives proper maintenance.

Defending preventive detention, Dr. B.R. Ambedkar asserted, “I think it has to be recognized that in the present circumstances of the country, it may be necessary for the executive to detain a person who is tampering either with public order as mentioned in the Concurrent List or with the Defence Services of the country. In such a case I do not think that the exigency of the liberty of the individual should be placed above the interests of the State”.

There was a time during the debate when heated arguments were exchanged between Dr. B.R. Ambedkar and Mahavir Tyagi. Mahavir Tyagi said “Sir, Dr. Ambedkar will please pardon me when I express my fond wish that he and the other members of the Drafting Committee had had the experience of detention in jails before they became members of the Drafting Committee”. And after that Dr. B.R. Ambedkar replied “I shall try hereafter to acquire that experience”. 

And Sardar Patel also supported preventive detention and advocated for strong powers to enforce it.

“Preventive Detention Act, 1950”, was foremost Act that was passed by the Parliament. The Act was an ephemeral one that lasted for one year but it was repeatedly prolonged until 1969, when it finally terminated.. After that, a fresh Act   titled “The Maintenance of Internal Security Act” (MISA) was enacted in the year 1971, containing provisions which were similar to those of the “Preventive Detention Act, of 1950”. MISA was repealed by Parliament in 1978. Later, in the year 1974, the Parliament passed the “Conversation of Foreign Exchange and Preventive of Smuggling Activities Act, 1974” (COFEPOSA). COFEPOSA is designed to combat activities which are grossly anti-social such as smuggling and racketing foreign exchange transactions. Following the repeal of the MISA, the  Central and State Governments were conferred extraordinary powers of preventive detention with the view to safeguard the country’s defence and security, and also to maintain public order and essential supplies and services, by means of enacting two much sought after statutes, namely “National Security Act, 1980”, and “The Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980”. Because of the increase in terrorist activities, the government passed the “Terrorist and Disruptive Activities (Prevention) Act” of 1985 (also referred to as TADA). 

2. CONSTITUTIONAL PROVISIONS AND SAFEGUARDS

After the independence, similar provisions of preventive detention were introduced by the Constituent Assembly. However, Article 21 of the Indian Constitution ‘‘guarantees the right to life and personal liberty’’ and subsequent Article 22 lays down the foundation for preventive detention, which forms cornerstone of the majority of the legal provisions pertaining to preventive detention. According to Article 22, anyone who is arrested and held in custody has to appear before the local magistrate within twenty-four hours. This provision does not apply to those who arrested under preventive detention. There are other safeguards for example recommendation of advisory board if detention is longer than three months, but prior experience has demonstrated that these protections are ineffective.

Preventive detention, which falls under one of the constitutionally defined categories, such as “state security, public order, the maintenance of supplies and services essential to the community, defence, foreign affairs, or Indian security”, means detain someone based on the likelihood that they may commit an offense in the future. This is different from punitive detention, which involves holding someone for an offense they have already committed.. Preventive measures are used when there is insufficient evidence in the possession of the authorities to support his detention because he would commit a crime unless he is detained. No offence is required to be proved nor is any charge required to be framed for preventive detention. Preventive detention is an extreme step that goes against natural justice's presumption of innocence until guilt is shown. In countries including USA and UK, the laws under preventive detention are invoked only during war times, the Constitution of India however does not differentiate between ordinary and war times.

The most important preventive measure is Article 22, which offers minimal procedures and very few protections. It must be followed by laws authorizing preventive detention. If any of the protections are not followed, the detention would be improper since it would violate the detainee's fundamental rights.

(4) No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless—

a)     an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:

Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or

b)    such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).”

These are the clauses that provide protections for preventative detention in Article 22 of the Indian Constitution.

Preventive detention can be made on this ground such as “security of the state, maintenance of public order, maintenance of supplies essential service and defence, foreign affairs, or security of the state”. As stated in clauses (1) and (2) of Article 22, it provides procedural protections against arbitrary arrest and detention that are applicable to both citizens and non-citizens and are applicable to those who are arrested or detained under laws other than preventive detention laws.

A process for preventive detention is provided in Article 22(4) to (7). Article 22(4) (a) sets out that preventative detention exceeding a period of three months is allowed only if an advisory board finds grounds sufficient for the satisfaction of the detention made. The board will be composed of those who are eligible to be High Court judges. When the duration of preventive detention is less than three months, there is no need to consult such a board. Parliament may specify the process that an advisory board must adhere to under Article 22(7)(c). The detaining authority should inform the person imprisoned, at the earliest possible time, the reason behind his imprisonment and provide him with the opportunity to challenge the detention order. This is an additional safeguard provided to the detainee by Article 22(5). Article 22(7)(b) allows Parliament to set the maximum length of detention. Without referring a case to an advisory board, the Parliament may, specify "the circumstances under which, and the class or classes of   cases in which, a person may be detained for a period longer than three months".

3. JUDICIAL INTERPRETATIONS

The question of whether courts make laws or only interpret them has long been up for debate. According to the English perspective, courts merely declare and interpret the law that already exists; they do not create new laws.

Courts have had a major influence in the modern era, especially when it comes to resolving controversial issue like preventive detention. Preventive detention in India has been ambiguous since its independence due to the country's unstable law and order situation. Thus, administrative discretion has become a major factor in the law concerning preventive detention, and the reach of judicial review has been limited. After the Constitution’s enactment first significant case on preventive detention was A.K. Gopalan v. State of Madras, the credibility of which was later questioned and challenged in the apex court based upon the contention that it violated Article 19 and Article 21 of the Constitution, as well as the principles of due process of law and natural justice. However, the Supreme Court set aside these arguments ruling that there was no connection between Articles 19 and 21. In furtherance to this, it set out that the "law" mentioned in Article 21 refers to lex (legislation), not jus (justice). As a result, the Court concluded that Article 21 did not imply natural justice, Consequently, natural justice was not violated. This interpretation established that in India, the standard is procedure established by law, not due process of law. This was overruled in Maneka Ghandhi v. Union of India, and held “procedure established by law must be just, fair and reasonable, and Articles 14,19 and 21 form a golden triangle”.

In the case of Francis Coralie v. Union of Territory of Delhi, it was ruled by the Court that denying access to a legal advisor and requiring the presence of an officer during interviews was unconstitutional. It further ruled that at least two interviews per week with relatives and friends must be permitted, subject to the superintendent of the jail's approval and that obtaining permission from the District Magistrate of Delhi was not mandatory. Additionally, the Court emphasized that the State is compelled to protect the rights of individuals, even when they are held under preventive detention.

In preventive detention, there are no objective standards for the executive to follow, as it relies on the “subjective satisfaction of the authority”. This can be explained by the fact that preventative detention is not punitive in nature, but rather aims to deter future offenses. It is predicated more on suspicion than evidence. The establishment of objective rules of conduct, the breach of which would result in preventive detetion, is not practical, the responsibility of ensuring state security, maintaining public order, or safeguarding essential services becomes paramount for the country.

When it comes to preventative detention, the Supreme Court is unable to judge the authority's subjective satisfaction. Because preventive detention is predicated on suspicion rather than hard evidence, the Court is not an appropriate forum for this kind of assessment. It cannot examine the facts that raise suspicions or examine the validity of the administrative decision to detain someone. Moreover, the Court cannot replace the authority's satisfaction because it is the authority's job to evaluate the situation and determine whether detention is required. However, the circumstances leading to detention must be legal and regular, not arbitrary, vague, or fanciful. If the detaining authority's decision is found to be arbitrary or unnecessary, the Court can intervene. While the Court cannot judge whether the fundamental rules upon which the detention order is made are adequate or sufficient, it can determine whether the grounds conveyed to the person who gets detained are sufficient in themselves to allow a prudent man to reach the same conclusion as the detaining authority. Though the dividing line between subjective satisfaction and objective determination may sometimes blur, this line, however faint or thin, continues to exist and must be upheld. In the case of Mohd Alam v. State of West Bengal, the Court underlined the fine line that separates societal security from individual liberty. Although the  State may detain people to preserve public order, this authority is not unqualified and must be used strictly following established legal protocols to avoid abuse or misuse. In the case of Jogendar Kumar v. State of Uttar Pradesh, it was held that a person cannot be arrested solely based on suspicion or complicity. In order to prove that the arrest is required and justified in the given situation, the police officer must have a reasonable basis for doing so.

4. CHALLENGES OF PREVENTIVE DETENTION IN INDIA

Terms like "public order" and "security of the state," which are not clearly defined, are frequently used in India's preventive detention laws. This means that it increases the possibility of arbitrary detentions by granting authorities broad discretion. Ram Manohar Lohia v. State of Bihar. In its ruling, the Supreme Court made clear the difference between "public order" and "law and order." The Court ruled that not all breaches of law disturb public order and that preventive detention should be saved for situations in which public order is seriously threatened. This ruling highlighted how these general terms must be used carefully to avoid abuse. So, it should provide clear and well-defined terms to prevent arbitrary and malafide use.

Preventive detention laws in India are designed to address genuine security concerns. However, in some cases, these powers have been used to achieve political or social control, undermining democratic principles and fundamental rights. In Rekha v. State of Tamil Nadu, the Court quashed the detention order, stating that the grounds provided were insufficient to justify detaining the individual under preventive detention laws. It held that the matter should have been  addressed through ordinary legal procedures and that the executive authorities had exceeded their powers by resorting to preventive detention.

Advisory boards, as mandated by Article 22, are tasked with reviewing  detention orders to prevent misuse of preventive detention powers. However, their effectiveness is often compromised due to their limited authority and the unwanted interference by the executive branch, which results in insufficient checks against arbitrary detentions.

In the case of A.K. Roy v. Union of India, the apex court examined the constitutionality of the National Security Act, of 1980, which allows for preventive detention. The Court expressed concerns over the composition and functioning of advisory boards, noting that the absence of judicial members could undermine their impartiality and effectiveness. It emphasized the necessity for these boards to operate independently to serve as a genuine safeguard against executive overreach.

This case highlights the critical need for reforms to ensure advisory boards can effectively oversee detention orders, thereby protecting individuals from potential abuses of preventive detention laws.

While the judiciary plays a crucial role in safeguarding individual rights, delays in the judicial process can make legal remedies ineffective for detainees. For instance, if a person is detained for three months and the judicial review takes longer than that period, the detention would already have been served, rendering the legal challenge moot. Such delays weaken the role of the judiciary in preventing arbitrary or unjust detentions and undermine the detainee's trust in the justice system.

5. CONCLUSION

Preventive detention is an essential yet controversial aspect of India's legal framework. It serves as a critical tool for maintaining public order and safeguarding national security. However, its potential for misuse poses significant risks to individual liberties and the democratic ethos. The legislative framework for preventive detention, anchored in colonial-era laws, continues to raise concerns about the balance between state power and fundamental rights. Article 22 of the Indian Constitution sets out the legal provisions pertaining to preventive detention, which attempts to maintain the equilibrium between individual rights and state security. The historical backdrop reveals a contentious journey, with laws like the Preventive Detention Act, 1950, the Maintenance of Internal Security Act, 1971, and the National Security Act, 1980, reflecting the evolving dynamics of national security and civil liberties. While these laws aim to pre-empt potential threats, their broad discretionary powers and vague provisions often lead to arbitrary detentions, undermining the principles of justice and equality.

Judicial interventions have significantly contributed towards scrutinizing the application of preventive detention laws, ensuring that executive actions do not infringe upon constitutional safeguards. The judiciary's role in interpreting and enforcing the provisions of preventive detention underscores the need for a robust system of checks and balances. To address the inherent ambiguities and potential for abuse, India must undertake comprehensive legal reforms. Enhancing legislative clarity, strengthening judicial oversight, and instituting stringent accountability mechanisms are imperative. These measures will ensure that preventive detention laws align with the constitutional commitment to justice, liberty, and equality, safeguarding against arbitrary use of power.

While preventive detention is vital for national security, it must be wielded with caution and respect for individual rights. By reforming the existing legal framework, India can uphold the delicate balance between state authority and personal freedoms, honouring the Constitution's core values. This approach will foster a more just and equitable legal system, ensuring that the practice of preventive detention serves its intended purpose without compromising democratic principles.

References

1.     A.K. Gopalan v. State of Madras, AIR 1950 SC 27.

2.     Maneka Gandhi v. Union of India, AIR 1978 SC 597.

3.     Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746.

4.     Mohd. Alam v. State of West Bengal, AIR 1974 SC 917.

5.     Joginder Kumar v. State of Uttar Pradesh, AIR 1994 SC 1349.

6.     Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740.

7.     Rekha v. State of Tamil Nadu, AIR 2011 SC 2444.

8.     A.K. Roy v. Union of India, AIR 1982 SC 710.

9.     The Constitution of India, 1950 — Articles 21 and 22.

10.  Preventive Detention Act, 1950 (Act No. 4 of 1950).

11.  Maintenance of Internal Security Act, 1971 (Act No. 26 of 1971).

12.  Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA).

13.  National Security Act, 1980 (Act No. 65 of 1980).

14.  Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980.

15.  Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA).

16.  Bengal Regulation III of 1818.

17.  Defence of India Act, 1915.

18.  The Rowlatt Act, 1919.

19.  Constituent Assembly Debates, Vol. VII (6 December 1948), Speech of Purnima Banerji.

20.  Constituent Assembly Debates, Vol. VII (6 December 1948), Speech of Dr. B.R. Ambedkar.

21.  Constituent Assembly Debates, Vol. VII (6 December 1948), Remarks by Mahavir Tyagi.

22.  Sardar Vallabhbhai Patel, Statement in the Constituent Assembly Debates on Preventive Detention, 1948.

23.  The Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Act No. 7 of 1980).

24.  Indian Penal Code, 1860 — General Provisions.

25.  Government of India, National Security Act, 1980 (as amended).

26.  Ministry of Home Affairs, Government of India — Reports on Preventive Detention Statistics (1980–2024).