preventive detention laws

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A CRITICAL EVALUATION OF PREVENTIVE

DETENTION LAWS IN POST INDEPENDENT LAWS

ADMINISTRATIVE LAW

Submitted by:

L. ASHISH KUMAR

201108

SEMESTER VI

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM

MARCH 2014


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ACKNOWLEDGEMENT

I would like to express my special thanks to our Vice Chancellor Prof. R.G.B.

Bhagvath Kumar, RegistrarProf. A. Sudhakar and especially gratitude my Teacher K.Sudha who gave me the opportunity to do this wonderful project on the topic A Critical

Evaluation of Preventive Detention Laws in Post Independent Lawswhich also helped me in

doing a lot of research. I am really thankful to them all.

Secondly I would also like to thank my parents and friends who helped me a lot in

finishing this project.


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CONTENT

TABLE OF CASES ................................................................................................................... 4

ABBREVIATIONS ................................................................................................................... 5

RESEARCH METHODOLOGY............................................................................................... 5INTRODUCTION ..................................................................................................................... 6

PREVENTIVE DETENTION LAWS ....................................................................................... 7

MISUSE OF PREVENTIVE DETENTION LAWS ............................................................... 11

CASE LAWS ........................................................................................................................... 14

SUGGESTIONS ...................................................................................................................... 16

CONCLUSION ........................................................................................................................ 17

BIBLIOGRAPHY .................................................................................................................... 18


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TABLE OF CASES

A.K. Gopalan v. State of Madras A.K. Roy v. Union of India Kartar Singh v. State of Punjab Abdul Latif Abdul Wahab v. B.K. Jha Lallubhai Jogibhai Patel v. Union of India Ram Bahadur v. State of Bihar Fogla & S.K. Jalil v. State of West Bengal Shafique Ahmad v. District Magistrate, Meerut Abdul Zabbar v. Rajasthan


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INTRODUCTION

Preventive detention means the imprisonment of persons with the aim of preventing them

from committing further offences or of maintaining public order. It means detention of a

person without trial and conviction by a court, but merely on suspicion in the mind of an

executive authority.1

In India, the preventive detention law has been in operation since 1950. Prior to

independence, the prevailing situation compelled the British India to invoke such laws,

however, after independence, it must have lapsed, but the Constitution drafting committee

taking into consideration the threat posed by the civil commotion at that time, decided to

retain it as a means to control the anti-national activities. At present, we have numerouslegislations on this subject, but how far the procedures are adequate to protect the interest of a

detenu is an unresolved question. It is evident that there is every possibility of abuse of power

by the executives in making preventive detentions. The legislative provisions are more

favorable towards the arbitrary exercise of powers and it recommends for an immediate

action from the side of judiciary.

Personal liberty is the basic fundamental freedom enjoyed by everyone in their very state of

nature. The state has an obligation to protect and safeguard this individual liberty of all

without any discrimination. In order to make the lives of their citizens worth living, it must be

the supreme object of any state to make laws, which ensures this freedom. On the other hand,

depriving a person of this freedom by anyone is not a justifiable one unless it is warranted by

a statute (i.e.) imposing reasonable restrictions on this freedom by the state. An individual

can enjoy his freedom in whatever manner he likes, but the restraint is made here, to make his

enjoyment within limits as not to interfere or encroach upon the rights of others. This

restriction on the liberty of a person is legally sanctioned by the state in two circumstances:

one, when a person is punished and imprisoned for a crime after a regular trial. The other, a

person is detained prior to commission of a crime in order to prevent him from its

commission, known as preventive detention.

1http://www.oxforddictionaries.com/definition/english/preventive-detention (accessed on 13-03-2014).


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PREVENTIVE DETENTION LAWS

Preventive Detention Act, 1950

The first Preventive Detective Act was enacted by the Parliament on 26the February, 1950.The object of the Act was to provide for detention with a view to preventing any person from

acting in a manner prejudicial to the defence of India, the relation of India with foreign

power, the Security of India or a State or maintenance of public order, the maintenance of

supplies and services essential to the community. Section 3 empowered the Central and the

State Governments and certain officers under them to make orders of detention if they were

satisfied that it was necessary to detain a person with a view to prevent him from doing in any

manner prejudicial to the things mentioned above. The Act was purely of temporary measure

and was to cease to have effect on 1 stApril. 1951. But its life was extended from time to time

till it lapsed on December 31, 1969.

Maintenance of Internal Security Act, 1971

In less than two years time after the lapse of the Preventive Detention Act, Maintenance of

Internal Security Act, 1971 was a controversial law passed by the Indian parliament in 1971

giving the administration of Prime Minister Indira Gandhi and Indian law enforcement

agencies super powers - indefinite "preventive" detention of individuals, search and seizure of

property without warrants, and wiretapping in the quelling of civil and political disorder in

India, as well as countering foreign-inspired sabotage, terrorism, subterfuge and threats to

national security.

The legislation gained infamy for its disregard of legal and constitutional safeguards of civil

rights, especially when "going all the way down" on the competition, and during the period of

national emergency (1975-1977) as thousands of innocent people were believed to have been

arbitrarily arrested, tortured and in some cases, forcibly sterilized.

The legislation was also invoked to justify the arrest of Indira Gandhi's political opponents,

including the leaders and activists of the opposition Janata Party.2

The 39th Amendment to the Constitution of India placed MISA in the 9th Schedule to the

Constitution, thereby making it totally immune from any judicial review; even on the grounds

2http://www.photius.com/countries/india/government/india_government_emergency_provisions~146.html

(accessed on 13-03-2014).


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that it contravened the Fundamental Rights which are guaranteed by the Constitution, or

violated the Basic Structure.

The law was repealed in 1977 following the election of a Janata Party-led government; the

44th Amendment Act of 1978 similarly removed MISA from the 9th Schedule.3

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act

(COFEPOSA) 1974

In 1974, the Parliament passed the Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act (COFEPOSA), which provided wide powers to the executive to

detain individuals on the mere apprehension on their involvement in smuggling activities.

The COFEPOSA Act credits its genesis to immobilize persons who indulge in economic

offences like smuggling, foreign exchange racketeering, drug trafficking etc and to disrupt

the machinery established for smuggling and foreign exchange manipulation, with all their

ramifications. Such smugglers, economic offenders and others of their ilk subvert the law of

the land to amass personal wealth thereby building their own empire complete with all

mechanics perpetuating nefarious activities further.

The National Security Act (NSA) 1980

The National Security Act 1980 is an act of the Indian Parliament whose purpose is "to

provide for preventive detention in certain cases and for matters connected therewith." The

act extends to the whole of India except the State of Jammu and Kashmir. This act empowers

the Central Government and State Governments to detain a person to prevent him/her from

acting in any manner prejudicial to the security of India, the relations of India with foreign

countries, the maintenance of public order, or the maintenance of supplies and services

essential to the community it is necessary so to do. The act also gives power to the

governments to detain a foreigner in a view to regulate his presence or expel from the

country. The maximum period of detention is 12 months. The order can also be made by the

District Magistrate or a Commissioner of Police under their respective jurisdictions, but the

detention should be reported to the State Government along with the grounds on which the

order has been made. No such order shall remain in force for more than twelve days unless

approved by the State Government.

3http://vlex.in/vid/the-maintenance-internal-security-act-29632343 (accessed on 13-03-2014).


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The Prevention of Black Marketing and Maintenance of Supplies of Essential

Commodities Act, 1980

The object of this Act is to prevent black marketing, hoarding of essential commodities. It

requires the detaining authority to furnish grounds of detention within a period of 5 days from

the date of detention, extendible to 10 days in exceptional cases. Within 3 weeks the

Government is required to place grounds of detention along with detenus representation

before the Advisory Board. The Board must submit its report to the Government within 7

weeks from the date of detention. The maximum period for which a person could be detained

after the confirmation by the Advisory Board has been restricted to 6 months from the date of

detention. The aggrieved person has right to move the courts under Art. 62 and Art. 226 of

the Constitution.

Terrorist and Disruptive Activities (Prevention) Act, 1987

Terrorist and Disruptive Activities (Prevention) Act, commonly known as TADA, was an

anti-terrorism law which was in force between 1985 and 1995 (modified in 1987) under the

background of Punjab insurgency and was applied to whole of India. It came into effect on 23

May 1985. It was renewed in 1989, 1991 and 1993 before being allowed to lapse in 1995 due

to increasing unpopularity due to widespread allegations of abuse. It was the first anti-

terrorism law legislated by the government to define and counter terrorist activities.4

Prevention of Terrorism Act, 2002

The Prevention of Terrorism Act, 2002 (POTA) was an anti-terrorism legislation enacted by

the Parliament of India in 2002. The act was enacted due to several terrorist attacks that took

place in India especially the attack on the Parliament. The act replaced the Prevention of

Terrorism Ordinance (POTO) of 2001 and the Terrorist and Disruptive Activities

(Prevention) Act (TADA) (198595), and was supported by the governing National

Democratic Alliance. Once the Act became law, many reports surfaced of the law being

grossly abused. POTA was arbitrarily used to crack down political opponents. The act was

repealed by the United Progressive Alliance coalition on October 7, 2004.

Article 22 of the Indian Constitution

4 http://www.satp.org/satporgtp/countries/india/document/actandordinances/TADA.HTM#7A (accessed on 13-

03-2014)


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Clauses (4) to (7) of Article 22 provide the procedure which is to be followed if a person is

arrested under the law of Preventive Detention. The Article 22 (3) of the Indian constitution

provides that, if a person is arrested or detained under a law providing for preventive

detention, then the protection against arrest and detention under Article 22 (1) and 22 (2)

shall not be available. Preventive detention should be carefully distinguished from punitive

detention. Punitive detention is punishment for illegal acts done. Preventive detention on the

other hand is action taken beforehand to prevent possible commitment of crime. Preventive

detention thus is action taken on grounds of suspicion that some wrong actions may be done

by the person concerned.

Every case of preventive detention must be authorized by law and not at the will of the

executive. The Preventive detention cannot extend beyond a period of 3 months. Every case

of preventive detention must be placed before an Advisory Board composed of Judges of the

High Court (or persons qualified for Judges of the High Court) the case must be presented

before the Advisory Board within 3 months. A continued detention after 3 months must be

having a "favours of the Advisory Board". The person will be given opportunity to afford

earliest opportunity to make a representation against the preventive detention. No person can

be detained indefinitely. Article 22 (7) provides exception to the above provisions. This

Article mandates that, when parliament prescribes by law the circumstances under which aperson may be kept in detention may be kept in detention beyond 3 months without the

opinion of the advisory board. Parliament by law can also describe under the same law, the

maximum period of detention.


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MISUSE OF PREVENTIVE DETENTION LAWS

It is often said that India adopted and inherited various facets of the administration that the

British Raj left behind as part of their colonial baggage. One such aspect is the concept of

Preventive Detention. The Constitution of India, which is the sine qua non of our democratic

society, explicitly allows for Preventive Detention, a necessary evil, which can be triggered

on a minimal assumption that the accused would indulge in a wrongful act even without

sufficient evidence conducive for a proper trial. This draconian measure compounded by the

use of the term necessary evil succinctly raises the question as to why such a tolerant

Constitution provides for a retrograde provision of Preventive Detention. The answer lies in

the vision of the Constitution makers who foresaw the need to curtail the freedom of certain

class of individuals, at testing times, in order to ensure peace and social order in safeguarding

the countrys unity and progress.

Though preventive detention is to be used sparingly, in the absence of proper safeguards, it is

grossly misused. As this is an administrative order, the scope of judicial review is limited.

The consideration is limited to the legality of the decision-making process and not the legality

of the order per se. The Supreme Court has held that it is the existence of material and not the

sufficiency of material which can be questioned. Moreover, any administrative action can be

questioned only on three grounds illegality, irrationality and procedural impropriety.

Unfortunately, the courts have been slow as regards intervention in such matters. A three-

member Advisory Board of the government examines whether the detention of a person is

justified or not, but there are shortcomings. For instance, its proceedings are in camera except

for that part of the report (which is the Boards opinion). There is also a denial of the detenus

fundamental right to be represented by a lawyer before the Board. How can a layman fight

his case before the board without an advocates help? All this is a violation of ones human

rights. The Centre should review the impugned provisions. The National Commission to

Review the Working of Constitution (NCRWC) said that preventive detention, being a

detention without trial, is a negation of the rule of law and the principle of fair trial. It

proposed that Section 3 (44th Amendment) Act, 1978 which tend to amend provisions of

Article 22 (4) be brought into force with a further amendment that the Advisory Board should

consist of the Chairman and members who are all serving High Court judges. Further, it

suggested that such detention should not exceed six months. At present, detainees held under


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preventive detention laws may be kept in detention without any form of review for up to three

months, an unconscionably long period in custody especially given the real threat of torture.5

The Advisory Board review procedure prescribed by the Constitution involves executive

review of executive decision-making. The absence of judicial involvement violates detainees

right to appear before an independent and impartial tribunal, in direct contravention of

international human rights law including the ICCPR (Article 14(1)) and the Universal

Declaration of Human Rights (Article 10).

The Court has delivered notable rulings setting out guidelines aimed at preventing abuses and

ill-treatment in relation to arrest and detention of suspects, solitary confinement and

unnecessary handcuffing and roping of arrested individuals. The impact of these rulings has,

however, been limited by lack of strict implementation. Indeed, there appears to be a pattern

of non-compliance by law enforcement officials with procedural rules such as the

requirement to register complaints with a First Information Report (FIR). In addition, the

police also reportedly fail to conduct proper investigations into allegations or to deliberately

obstruct enquiries. Similarly, while the Criminal Procedure Code contains provisions that

serve to limit the length of time that someone can be detained without trial in India, these are

not always adhered to in practice.6

Under COFEPOSA, 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 recognize innocence even in such

genuine cases.7 In 2005, The Assocham President, Mahendra K. Sanghi, pointed out in the

representation that stringent provisions of COFEPOSA were still invoked to harass exportersagainst minor violations of foreign exchange regulation despite FEMA being in place.

Customs authorities resorted to COFEPSA to detain exporters without any trial in cases

5http://indialawyers.wordpress.com/2009/06/15/preventive-detention-a-constitutional-tyranny/ (accessed on 13-

03-2014).6http://www.unhcr.org/refworld/country,,OSI,,CHL,,4cdced372,0.html. (accessed on 13-03-2014).

7http://www.hindu.com/op/2004/09/07/stories/2004090700101500.htm (accessed on 13-03-2014).


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where they had unintendedly violated foreign exchange regulations while honouring their

export obligations in the past.8

The Prevention of Terrorism Act (POTA), enacted in March 2002, replaced the Prevention of

Terrorism Ordinance (POTO) in 2001. POTA allows for the detention without charge for 3

months, and 3 more months if allowed by a special judge, deems not disclosing information

to the authorities about terrorist activities an offense, and provides extensive new powers to

ban organizations and seize their assets. The act is similar to TADA in its provisions for

detentions, summary trials, and the use of testimony obtained under duress. In addition,

POTA provides for special courts to try offenses, places the burden of proof at the bail stage

on the accused, allows confessions made to a police officer admissible as evidence, extends

the period of remand from 15 to 60 days, and sets mandatory sentences for terrorism-related

offenses.9

The National Security Act (NSA) permits police to detain persons considered to be security

risks anywhere in the country (except for Jammu and Kashmir). The authorities may detain a

suspect without charge or trial for as long as 1 year on loosely defined security reasons. NSA

does not define "security risk." The state government must confirm the detention order, which

is reviewed by an advisory board of three High Court judges within 7 weeks of the arrest.

NSA detainees are permitted visits by family members and lawyers, and must be informed of

the grounds for their detention within 5 days (10 to 15 days in exceptional circumstances).10

Several detainees complained to government officials that they were detained without charge,

some for many months, while police investigated their connection with Naxalites.11

Preventive detention laws do not exist in democracies such as U.K. or U.S.A. (except during

wartime). In India, however, they exist even during peacetime. 12No country in the world has

made these laws integral part of the Constitution as has been done in India. There is no such

law in U.S.A. It was restored in England only during war time. In England for the first time,

during the First World War, certain regulations framed under the Defence of Realm Act

provided for preventive detention at the satisfaction of Home Secretary as a war measure and

8http://www.hindu.com/2005/05/03/stories/2005050301981900.htm (accessed on 13-03-2014).

9http://www.ncbuy.com/reference/country/humanrights.html?code=in&sec=1d (accessed on 13-03-2014).

10Ibid.

11Ibid.

12http://justicekatju.blogspot.in/2013/10/some-issues-relating-to-fundamental.html (accessed on 13-03-

2014).


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they ceased to have effect at the conclusion of hostilities. 13The same thing happened during

the Second World War. In Liversidge v. Anderson,14these regulations were upheld by British

Court.

CASE LAWS

In A.K. Gopalan v. State of Madras,15Patanajali Shastri, J., expalianing the necessity of this

provision said The sinister looking feature, so strangely out of place in democratic

Constitution, which invests personal liberty with the sacrosanctity of a fundamental right, and

so incompatible with the promises of its preamble, is doubtless to prevent the abuse of

freedom by anti-social and subsersive elements which might imperil the national welfare of

the infant republic.

In A.K. Roy v. Union of India,16popularly known as the NSA case, the Supreme Court by 4 :

1 majority upheld the constitutional validity of the NSA and the Ordinance which preceded

the Act. The Court held that Act was neither vague nor arbitrary in its provisions providing

for detention of persons on certain grounds, as acting in a manner prejudicial to the defence

of India, security of India, security of State, and to relations with foreign power.

In Kartar Singh v. State of Punjab,17the Supreme Court has considerably narrowed down the

scope and ambit of TADA and held that unless the crime alleged against an accused could be

classified as a terrorist act in letter and spirit he should not to be cha rged under the Act and

should be tried under ordinary penal laws by the regular courts. The Court held that Section 3

of the Act operates when a person not only intends to overawe the government or create a

terror in people etc. but also when he uses the arms and ammunition which results in death or

likely to cause deaths and damages the property. In other words, the Court held that a person

becomes terrorist or is guilty of terrorist activity when his intention, action and consequence

all the three ingredients are found to exist together.

13J.N. Pandey: The Constitutional Law of India, 48the Edition, 2011, p. no: 303.

141942 A.C. 206.

15A.I.R. 1950 S.C. 27.

16A.I.R. 1982 S.C. 710.

17(1994) 3 S.C.C. 569.


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In Abdul Latif Abdul Wahab v. B.K. Jha,18petitioner was in jail awaiting trial on a charge of

murder and was due for release on June 23, 1986. On that day, an order for preventive

detention was made under the Gujarat Prevention of Anti-Social Activities Act, 1985. On that

date there was no Advisory Board in existence to which a reference could be made under

Section 11 of the Act and whose report was required to be obtained within 3 months under

Art. 22(4) of the Constitution. On August 7, 1986 when the order of detention dated June 23

was revoked a fresh order of detention was made. The Advisory Board was constituted on

August 18, 1986 and a reference was made to it on August 20. The Board made its report on

September 26, 1986 which was more than 3 months. The Court held that the detention order

was illegal being violative of Art. 22(4). The detention order was passed knowing fully well

that there was no Advisory Board in existence to whom a reference could be made and report

obtained as required by the Act and the Constitution. Such a casual and indifferent approach

to citizens right has to be deprecated.

In Lallubhai Jogibhai Patel v. Union of India,19 the detenue did not know English but the

grounds of detention were drawn in English and the detaining order stated that the Police

Inspector while serving the grounds of detention fully explained the grounds in Gujarati to

the detenu, but no translation of the grounds of detention into Gujarati was given to the

detenu. It was held that there was no sufficient compliance of Art. 22(5), and hence the orderof detention was invalid.

In Ram Bahadur v. State of Bihar,20it was held that where the order of detention was based

on distinct and separate grounds and if any of the grounds was vague, or irrelevant the entire

order would file.

In Fogla & S.K. Jalil v. State of West Bengal, 21where one of the reasons for the detention

was not communicated to the detenu, it was held that the detenu had no opportunity to makean effective representation to the Government and therefore the detention was violative of

Article 22(5) and must be set aside.

But the 2ndAmendment in N.S.A provides that the detention order would not be invalid or

inoperative merely because some of the grounds are considered vague, no-existent, not

18(1987) 2 S.C.C. 22.

19(1981) 2 S.C.C. 427.

20A.I.R. 1975 S.C. 223.

21A.I.R. 1975 S.C. 245.


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relevant, unconnected or invalid. Thus the amendment thus nullifies the effect of several

decisions of the Court in which detention orders were struck down on one or the other

grounds mentioned therein.

In Shafique Ahmad v. District Magistrate, Meerut,22it has been held that even where one of

the grounds was found to be bad and unsustainable the detention under N.S.A. would not be

vitiated if remaining grounds are valid.

In Abdul Zabbar v. Rajasthan,23an Advisory Board gave no reason for rejecting a detenus

request for assistance from a friend, the detention order was set aside.

SUGGESTIONS

The exercise of power by the detaining authorities can be controlled by following safeguards

and can be taken into account as a protective measure against their misuse:

Before making an order of detention, application of a judicial mind is necessary. The detenu should be given the right of representation by a legal practitioner, so that

he can make an effective and meaningful representation.

If a detenu is released or where a detention order is set aside by a competent court,then a provision has to be made, which confer a right of compensation to the detenu

for the period of wrongful detention.

The period of three months for detaining a person must be reduced. The period of onemonth could be more appropriate.

The Government should take steps to implement the safeguards made under the 44thAmendment Act of 1978 without any delay.

The Advisory Boards should be entrusted with the power of revoking a detentionorder, if it finds that the detention is not necessary in a particular case.

22A.I.R. 1990 S.C. 220.

23A.I.R. 1983 S.C. 505.


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CONCLUSION

The legal provisions are uncertain with respect to preventive detentions, which resulted in

misuse of power by the state machineries. The judiciary has the vital and primary role to play

in such detention cases. The reason is that, in case of a criminal proceeding, a persons libertyis curtailed under the law as an act of punitive detention, where the application of a judicial

mind is ensured prior to the detention, but in preventive detention cases, the executives are

empowered with draconian powers with respect to detention orders. Their subjective

satisfaction is predominant over the detenus interest and the review of its action is given to

the Advisory Boards, which is also an executive authority. In such circumstances, there is

every possibility of abuse and misuse of power by the detaining authorities, which deprives

the detenu of his fundamental right of personal liberty. This also has an adverse effect of

sparing the precious time of courts in finding the validity of detention orders, which in turn

results in wastage of money and resources. In many cases, the political motives and personal

vengeance plays a major role in making arbitrary detentions. In simple words, the power to

detain a person as a preventive measure has become a dangerous weapon in the hands of state

machineries to fulfill their unlawful objectives.


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BIBLIOGRAPHY

LIST OF STATUTES:

Constitution of India, 1950. Code of Criminal Procedure, 1973. Maintenance of Internal Security Act,1971 Preventive Detention Act, 1950 Conservation of Foreign Exchange and Prevention of Smuggling Activities Act

(COFEPOSA), 1974

The National Security Act (NSA), 1980 The Prevention of Black Marketing and Maintenance of Supplies of Essential

Commodities Act, 1980

Terrorist and Disruptive Activities (Prevention) Act, 1987 Prevention of Terrorism Act, 2002

BOOKS:

Dr. J. N. Pandey: The Constitutional Law of India, 48th Edition, 2011, Central LawAgency, Allahabad.

S. P. Sathe: Administrative Law, 7thEdition, 2010, Lexis Nexis, Nagpur.WEBSITES:

http://www.indiankanoon.org http://www.oxforddictionaries.com/ http://www.photius.com/ http://vlex.in/ http://www.satp.org/

http://indialawyers.wordpress.com/ http://www.unhcr.org/ http://www.hindu.com/ http://justicekatju.blogspot.in/

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