Is India Always At War? All About Preventative Detention & National Security Act

But in recent times in India, the differentiation between the set normative and the reality is ever so more evident with a steep increase in the number of instances where a person is taken under preventive detention. Preventive detention is something unknown in the United States of America and the United Kingdom, in peacetime but it is making headlines in India at every turn and step.

Preventive detention means detention done by the state on mere apprehension that a person or group of persons may indulge in certain acts which may affect the law & order situation, supply of essential commodities etc. It is not to punish a person for something he has done but to prevent him from doing it.

Background

The United Kingdom enacted a law conferring power of preventative detention to the state during World War I. In India, the law's framework dates back to the year 1818, more than two-century ago. In 1818, Bengal Regulation III was enacted to empower the British government to arrest anyone for maintenance of public order without giving the person recourse to judicial proceedings. Another major development took place in 1915 with the enactment of the Defence of India Act.

In 1919 came the infamous Anarchical and Revolutionary Crimes Act, popularly referred to as 'Rowlatt Act' which authorised government personnel to put a suspect in confinement without trial which was very strongly opposed by the Indian freedom fighters, resulting in withdrawal of the law by the British government.

Even after independence, the preventive detention was continued and a constitutional sanctity was given to the preventive detention laws which was deemed as an instrument to suppress apprehended breach of public order, public safety etc. in the newly independent nation.

It is a matter of fact that laws conferring power of preventive detention such as Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974 (COFEPOSA), National Security Act,1980 (NSA) are routinely misused by the government in order to restrict the liberties of those who do not agree with the functioning and methodology of the government.

Constitutional provisions -

Preventive detention is the most controversial scheme of the fundamental rights enshrined in the Constitution. This provision of the constitution is not self-executory and required a law to be enacted by the legislature. Therefore, in the year 1950, The Preventive Detention Act was passed. Though the act was initially passed for a year as a temporary measure but the validity of the act was subsequently extended to as late as the year 1969. It will not be wrong to term The Preventive Detention Act, 1950 as 1^st Rowlatt act of independent India.

Later, the enactment of the Maintenance of Internal Security Act (MISA) in 1971 and COEFPOSA, 1974 followed. COFEPOSA in general sense is referred to as an economic adjunct to MISA. The legislature ultimately repealed MISA after the revocation of emergency, but COEFPOSA remained.

The much talked about law which is being frequently invoked in recent months, the National Security Act, 1980 (NSA)^[1] was enacted in 1980 which further conferred power of preventive detention to the Central and State governments. Another specialised act, namely, Terrorist and Disruptive Activities (Prevention) Act, 1985, conferring power of preventive detention with the aim of curbing terrorist activities was enacted and then subsequently repealed. But, the oppressive law, The Preventive Detention Act,1950 which was initially supposedly temporary with the enactment of NSA acquired a permanent sanctity in 1980.

The subject of preventive detention is mentioned under the Concurrent list (Entry 3 List III) and hence some states have also enacted their own preventative detention laws like the state of Madhya Pradesh, Uttar Pradesh, Manipur etc. which are enacted on the same line that of NSA and have stringent provisions like - detained person need not be produced before a magistrate within 24 hours of the detention, the detained person does not have the right to move a bail application before a criminal court, the detained person cannot engage any lawyer.

The preventive detention under NSA can be done on grounds provided under Section 3(2) of the Act which are:

• When a person is acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India.
• When regulating the continued presence of any foreigner in India or to make arrangements for his expulsion from India.
• While preventing an individual or group of individuals from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community.

Remedy that lies against the detention under NSA is to approach the advisory board or file a habeas corpus petition in the High Court.

Constitution and the National Security Act

Article 22 (1) of the Indian Constitution provides that an arrested person cannot be denied the right to consult and to be defended by a legal practitioner of his choice. According to Section 50 of the Criminal Procedure Code,1973, any person arrested has to be informed of the grounds of arrest and has the right to bail.

Article 22(3) of the constitution provides that, if a person is arrested or detained under a law providing for preventive detention, then the protection against arrest or detention under article 22(1) and 22(2) shall not be available. Therefore, rights conferred under Article 22(1) and (2) are not available to the person detained.

The government holds the right to conceal information which it considers to be against public interest to disclose.

Preventive detention regime has become a convenient tool to obscure the flaws in the Indian criminal justice system and deprive individuals of their constitutional and statutory rights. Under the law, the maximum span for which a person can be detained is for 12 months.

However, the government can extend it, if it feels so. The National Crime Records Bureau (NCRB), which collects crime data in India, does not include cases under the NSA which raises a serious issue pertaining to the manner in which the law is being used by the government. The to the exact number of detentions made under the Act are still unknown but as per the Law Commission report from 2001, more than 14 lakh people were held under preventive laws in India^[2].

On a combined reading of Article 22(4) to (7) along with the provisions of NSA, a person can be detained by the government and will totally be at the mercy of the state.

Procedure under NSA-

If a person is detained under NSA then -

• As per section 3(4) of the Act, the grounds of detention shall be communicated to the detainee after between 5 -15 days of the detention.

- The central or state government shall constitute one or more advisory boards.

• Person detained has 4 weeks time to send his case to the Advisory board, which should consist of three persons who are qualified to be appointed as Judges of a High Court.

- The grounds of detention must be placed before the Advisory Board within 3 weeks from the date of detention.

• The board has 7 weeks time to decide whether the detention is good in law or not.

- The grounds of detention must be placed before the Advisory Board within 3 weeks from the date of detention.

Judicial outlook –

While interpreting the provisions, the courts at several occasions have pointed out in a number of cases that the detaining authorities should exercise the privileges sparingly and in cases only where there is full satisfaction as they have to act without normal safeguards for ordinary detention and resort to preventive detention.

The Supreme Court in Rekha v State of Tamil Nadu^[3] said that 'Prevention detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law.

In the cases of Alpesh Navinchandra Shah v. State of Maharashtra^[4] , State of Maharashtra v. Bhaurao Punjabrao Gawande^[5] and Rekha v. State of Tamil Nadu (supra), wherein the detention orders were set aside by the Supreme Court on the ground that the purpose for issuance of a detention order is to prevent the detenu from continuing his prejudicial activities for a period of one year, but not to punish him for something done in the remote past.

There would have to be a nexus between the detention order and the alleged offence in respect of which he was to be detained and in absence of a live link between the two, the detention order could not be defended.

Need to revisit Preventive Detention laws -

Article 21 creates high flying jurisprudence and is liberally and widely interpreted by the courts over the time through judicial interpretation and legislative enactments. But, in the very next provision, Article 22 of the constitution gave constitutional sanctity to the legislature to enact the law allowing for preventive detention. It is right to say that on the one hand safeguards are provided to the people and on the other hand the safeguards are taken away provided to the people. Personal liberty of an individual is the most precious and prized right guaranteed under the constitution.

"To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us, thus absurdly sacrificing the end to the means"

The State has been granted the power to curb fundamental human rights under criminal laws which, therefore, are required to be exercised with due caution and shall not be used as a tool of oppression.The NSA allow the government to keep serious offenders in custody without charging them for any of these serious offences. This is convenient for the government and police because it allows them to escape the strictures of the procedural laws and basic human rights and liberties.

Authorities responsible to maintain law and order at times invoke NSA whenever they are unwilling or unable to make a criminal case against an individual. Detention of journalists and people critical of the government being charged with NSA is becoming a routine exercise. It is often used as a response to ordinary law and order situations which can be taken care of by other laws like Indian Penal Code,1860.

Where the law confers extra-ordinary power on the executive to detain a person without recourse to the ordinary law of the land and to trial by courts, such a law has to be strictly construed and the executive must exercise the power with extreme care^[7].

Conclusion -

People of India have entered into a contract with the state and have retained certain rights with themselves which act as restriction upon the state and the state shall not deprive by its actions people of their rights. Preventive detention is an exception to the normal procedure and is sanctioned and authorized for very limited purpose under Article 22(3)(b). This power must be with proper circumspection and due care. As the government of the day is dedicated towards good governance and expects people to contribute in this direction, the government should also bring transformation changes in the existing law and protect the fundamentals rights and safeguards provided to the people as preventive detention should not be used as a way to bypass the ordinary laws.

Regime of constitutional governance requires the need of developing an understanding between those who exercise power and the people over whom or in respect of whom such power is exercised. Civilised society should be governed by the rule of law and not by the rule of an individual or group of individuals acting in an arbitrary manner. Failure of rule of law is a sure indication of the liberty of the individual coming into peril and so does the peace of the society