Preventive Detention In India

Section 149-153 of CrPC^[1] deals with the Preventive actions of the Police. Section 151 says that the police officer may arrest a person to prevent the commission of a cognizable offence, without a warrant from the magistrate, if it appears to the officer that the commission of the cognizable offence cannot otherwise be prevented.

Difference Between Arrest And Preventive Detention

Preventive detention (section 151 of CrPC) is different from arrest (section 44 of CrPC), as here the person is detained without a warrant, without him committing the crime, on a mere reasonable apprehension that he might commit a cognizable offence. He is confined in the custody without undergoing a trial and lesser constitutional safeguards against detention are available to him. He might be detained even further, according to the procedure established by law, if he is expected to be released on a bail. Hence, here the fundamental rights of the detainee under art 21^[2] (Protection of life and liberty, due process), 19(Freedom of Expression), 14(Right to Equality) of the Constitution of India are breached to a greater extent than in the arrest.

Laws Providing For Preventive Detention In India

• Preventive Detention Act, 1950^[3]. Expired in 1969. (Amended 7 times to increase validity by 3 years. SC observed in A.K Gopalan v. the State of Madras that S.14 contravenes with art.9 and 5 of The Constitution of India as it prohibited the detainee to disclose to the court the grounds for detention or the representation against the order of detention would be ultra vires i.e. beyond the powers or scope, and therefore void)
• Maintenance of Internal Security Act (MISA), 1971^[4]. Repealed in 1978. ( 39th constitutional amendment in 1975 during the Indira Gandhi Emergency period, added it to the 9th Schedule, eliminating judicial Review even on fundamental right infringements, which helped arresting opposition and around100000 people. The Janata Party repealed it in 1977.)
• Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985. Repealed in 1995. ^[5]
• Prevention of Terrorism Act (POTA), 2002^[6]. Repealed in 2004. (It was similar to TADA but it didn't allow preventive detentions. admissions made to The Police were admissible in Court, unlike the general principle. It also allowed withholding of the identity of the witness and it allowed for appeals to any decision by special courts under this act and on bail petitions by district courts. Hence, Rajya Sabha repealed it.)
• Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974.^[7]
• National Security Act (NSA),^[8] 1980. (Certain cases and matters for Preventive Detention)
• Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act (PBMSECA), 1980.^[9]
• Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988.^[10]

Constitutional Safeguards Against Preventive Detention In India

• According to Art 22 (1) of the Constitution of India, no person can be detained in custody without being informed of the grounds of arrest or shall be denied the right to consult or be defended by a legal practitioner.
• According to Art 22 (2), every person who is arrested and detained in custody shall be produced before a magistrate within 24 hours of such an arrest. No person can be detained beyond 24 hours without the authority of the magistrate.
• 22 (3) provided that the above two clauses will not apply to a person who is detained in accordance to a law providing for preventive detention.
• According to 22(4), Preventive detention of any person will not exceed 3 months by any law except-

(a) an advisory board of members who are or have been qualified to be Judges of a High Court opines before the expiration of three months that there is sufficient cause for such detention. Provided that it doesn't exceed the maximum period prescribed by-laws made by parliament under Subclause (7)(b) or

(b) the detention is according to the provisions of any law made by Parliament under subclauses (7)(a) and (b)

• According to 22 (7), Parliament may by law prescribe—

(a) the circumstances and the class or classes of cases where a person may be detained for longer than three months without obtaining the advisory board's opinion as in sub-clause (4)(a),

(b) the maximum period for such a person in preventive detention

(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (4)(a)Right against Exploitation.

Here, although art 22 (1) and 22(2) provides for safeguards against arbitrary arrest and detention, the same is said to not be applicable in the case of preventive detention under art 22 (3).

The Constitution of India has itself provided for safeguards against 22(3) in 22(4) saying that no person can be detained for more than a period of 3 months unless an advisory board confirms that there is sufficient cause for the continuation of such detention.

But an exception to 22(4) has been provided in 22(7) (b) itself. Providing that a person can be preventively detained for more than 3 months without the opinion of an advisory board if Parliament by law provides: -

• The maximum period of such detention.
• Circumstances, classes of persons and classes of cases to which such a law may apply.

It is clear that although the constitution has provided for safeguard against preventive detention under 22(4), but has also given an exception to it in 22(7) itself. It is because in exceptional circumstances, where it is necessary to maintain public order and security, or where there is reasonable apprehension that if a person is not detained, he will most definitely commit a crime, then such a person can be detained for more than 3 months, without the opinion of the advisory board in accordance to procedure established by law, provided that it is absolutely necessary to do so.

Judiciary On Preventive Detention

T Devki Vs State Of Tamil Nadu (1990 Scr (1) 836)^[11]

Here the detainee threw a knife at a public gathering at a political person and was thus arrested and detained by the detaining authority without mentioning the period of detention under Tamil Nadu Prevention of Dangerous Activities of Boot-leggers, Drug Offenders, Forest Offenders, Immoral Traffic Offenders and Slum Grabbers, Act, 1982.

Here the order of detention was contented to be illegal as it did not mention the period of detention. The Supreme court held that it is not absolutely necessary to mention the period of detention as it is not a material factor of the detention order and whenever the period of detention is not mentioned, it is going to be assumed that the person has been detained for the maximum period provided by the law.

This was a landmark judgement delivered by a five-judge bench, giving the detaining authority the power to pass a blanket order of detention, provided that there is sufficient cause to do so.

Cherukari Mani Vs State Of Andhra Pradesh (Criminal Appeal No.1133 Of 2014 Arising Out Of Special Leave Petition (Crl) No. 2531 Of 2014)^[12]

Here the detainee was a renowned criminal with as many pending criminal cases against him and was detained by the detaining authority for the maximum period itself, in the first order of detention under the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986^[13] stating that the husband of the appellant (detained) has got all the attributes to be called as a 'goonda' as envisaged under Section 2(g) of the Act.

The order of detention was challenged in the supreme court saying that the detaining authority has no power to detain the person at the first very instance itself for the maximum period.

Here the supreme court held that the order of detention was illegal as it was in violation of art 22(4) of the Constitution and was also in violation of section 3(2) of the Act providing that the period of detention cannot exceed 3 months at the first instance.

State Of Maharashtra Vs Balu S/O Waman Patole (Criminal Appeal No. 1681 0f 2019)^[14]

Here the detainee was detained under Maharashtra prevention of dangerous activities of bootleggers, dacoits, drug offenders, goondas, immoral traffic offenders and land grabbers act of 1986 for a period of 12 months at the first instance.

This order was challenged in the high court which said that this was in contravention of 3(3) of the Act. The judgement of the high court was challenged in the supreme court which interpreted that under sections 3(2) and 3(3) of the Act, the power of detention with the state government was delegated to the district magistrate and commissioner of police. The time limit under the proviso of section 3(2) of the act is imposed on the period of delegation and not on the period of detention.

Hence, the order of detention by the detaining authority prescribing a detention for the maximum period at the first instance is not wrong according to the provisions of the act.

Its also not in contravention to art 22(4) of the constitution, as an exception to 22(4) has been provided in 22(7) of the constitution itself, which is duly complied with, in this case.

Thus, the order of detention passed in this case is not vitiated and is upheld by the supreme court.

Shambhu Nath Shankar Vs State Of West Bengal (1974 SCR (1) 1)^[15]

The petitioner was arrested on January 29, 1972, under 3(1) and (2) of the Maintenance of Internal Security Act, and on April 15, 1972, the State Government, after perusing the report of the Advisory Board, confirmed the order of detention under s. 12(1) and directed the detention to continue for 3 years from the date of detention.

The petitioner was detained in pursuance of a detention order under Maintenance of Internal Security Act of 1971, here the order was challenged on the grounds of it being vague and having no rational nexus to the object sought to be achieved, but the court upheld the detention order.

The court interpreted sections 22 (4) (a) and 22 (7) (b) as coherent with each other.

It was said that it was the intention of the constitution to lay down a safeguard against preventive detention under 22 (4) (a) to not be detained for more than 3 months without consulting an advisory board, but an exception to the safeguard was deliberately given in 22(7) (b) itself, that if and when such a situation arises that it is absolutely necessary to detain a person without consulting an advisory board, for more than 3 months, it can be done so under 22(7) (b) provided that there is a law in force providing for it.

This is done to save the country from anybody who is likely to act in a way as to pose threat to the national peace, security and public order. If the situation so requires the person can be preventively detained for the maximum period at one go. Thus, 22(4) (a) and 22(7) (b) should be read incoherent and should be applied as per the facts and circumstances of each case.

Although the concept of Preventive detention in itself is draconian and infringes the fundamental rights guaranteed in the constitution, sometimes it is necessary for the state to take such extreme steps to maintain the security of the country.

Although the Constitution of India does not expressly provide for it, and also provides a safeguard against it, the Constitution by providing an exception to the safeguard, also subtly, allows the draconian law to be exercised if it is absolutely necessary to do so, to maintain the public order. There are many laws such as COFEPOSA, NSA etc that provide for the preventive detention, a person still cannot be detained in any other way than otherwise than by the procedure established by law. Such a law should also give the maximum of period detention and classes of cases and circumstances to which it could be applied.

By making it mandatory to provide for the maximum period and classification of the cases and circumstances, the constitution also provides a safeguard in the draconian acts itself, so that the provision of the preventive detention cannot be misused to keep an innocent person in the detention for an indefinite period as that would be against the spirit of the Constitution of India, itself.

Though it is obvious that the courts have ruled against the infringement of fundamental rights, their immense backlog has resulted in writ petitions against preventive detentions taking several months to be heard. Making the encompassing reality of our legal system, "Justice Delayed is Justice Denied", even more, evident here. As Preventive Detention laws are highly administrative with little judicial interference, such that even the advisory committee under art. 22 allows the State to arbitrarily choose an executive committee that could already be prejudiced. Such that they have often extended detention periods as a routine when the High courts have gone to quash them. In fact, Allahabad HC quashed 78.33% of all detention orders under NSA between January 2018 and December 2020^[16]. The courts being the only remedy works in the State's favour whose main purpose of keeping people imprisoned for a longer period of time is fulfilled. Especially since, it is improbable for a layman to have legal knowledge or experience to understand the reasons for such detention or put a competent defence before an advisory panel consisting of lawyers or retired judges, making it violative of art. 21, the right to personal liberty and the right to legal representation under art. 22(1).

As other numerous reports make it clear that the State has often overreached its powers with respect to Preventive Detention, I believe that practical safeguards against Preventive Detention should be strengthened, for the concept of Preventive Detention, though draconian is also necessary as evident by the persistence of some orders in the same report. Hence, the detainee should not be denied the right to consult and the advisory committee should be comprised of current High Court judges, to promote impartiality, such that the rights of the people, especially minorities are protected while making the laws less prone to exploitation.

Views are personal.