preventive detention under the constitution in india

8/10/2019 Preventive Detention Under the Constitution in India

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PREVENTIVE DETENTION UNDER THE

CONSTITUTION IN INDIA

INTRODUCTION:

Preventive Detention means detention of a person without trial and conviction by a court, but

merely on suspicion in the mind of an executive authority. Preventive detention is fundamentally

and qualitatively different from imprisonment after trail and conviction in a criminal court.

Preventive detention and prosecution for an offence are not the synonymous. In conviction, the

accused is sought to be punished for a past act. The offence has to be proved in the court beyond

the reasonable doubt. In Preventive Detention, on the other hand, a person is detained without

trial in the subjective satisfaction of the executive to prevent him for committing an undesirable

act in future.

In India, preventive detention can be extended for only three months. After three months,

such a case is brought before an advisory board for review. In India, this is given in the

Constitution of India under Right to Freedom, a Fundamental Right. Preventive detention is

explained in the Art. 22 especially clauses (4) to (7) of the Indian Constitution.


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SIGNIFICANCE:

The topic is of great significance. The topic of Preventive Detention is included in the Union list

as well as in the Concurrent list. As very few nations including India provides this right, there

has been constant debates upon it saying that it violates the personal liberty and various

fundamental rights given to a individual in the Indian Constitution. So the study of it will help us

to lead to the proper answer to these questions.

OBJECTIVES:

The basic objective behind the study of this topic is to study the provisions of preventive

detention given in the Constitution of India as well as preventive detention given in the various

other Acts like the Code of Criminal Procedure, Preventive Detention Act, 1950 etc. and to find

that how it is not violative of the Indian Constitution

CONCEPT AND DEFINITION OF PREVENTIVE DETENTION:

Concept:

Preventive detention is an imprisonment that is not imposed as the punishment for a crime, but in

order to prevent a person from committing a crime, if that person is deemed likely to commit a

crime. In most democracies, no one can be arrested without being told the grounds for such an

arrest, except under rare and special circumstances (usually anti-terrorism legislation). An

arrested citizen has certain rights: He/she must be subject to and informed of a criminal charge

and brought before the nearest magistrate within a certain amount of time, and has the right to

defend himself by a lawyer of his choice.

In contrast to this, under preventive detention the government can imprison a person for some

time without a criminal charge. It means that if the government feels that a person being at

liberty can be a threat to the law and order or the unity and integrity of the nation, it can detain or

arrest that person to prevent him from doing this possible harm. Some jurisdictions allowpreventive detention only in specific cases, for example only for persons who have already been

sentenced for a serious crime.

A related, but different form of detention is detention of suspects. In contrast to preventive

detention, detention of suspects must quickly be followed by a criminal charge (or happen after

the charge).


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In most jurisdictions, people suffering from serious mental illness may be subject to involuntary

commitment under mental health legislation. This is undertaken on health grounds or in order to

protect the person or others. It does not strictly speaking constitute a form of preventive

detention, because the person is detained for treatment and released once this has proved

effective.

Definition:

There is no authoritative definition of the term Preventive Detention in Indian law. The

expression had its origin in the language used by the Law Lords in England while explaining

nature of Detention under regulation 14-B, Defence of Realm Act, 1914, passed on the outcome

of First World War and the same language was repeated in the connection with emergency

regulations made during Second World War. The word Preventive is used incontradiction to

the word punitive. In a case R. v/s Hall iday, Lord Finely said that it is not a punitive but

preventive measure. Preventive detention differs from the ordinary orpunitive detention both in

respect of its purpose and its jurisdiction. The object of preventive detention is not to punish a

person for having done something but to intercept him before he does it and to prevent him from

doing it. No offence is proved or any charge formulated. The jurisdiction of such detention is

suspicion or reasonable probability of the impending commission of the prejudicial act and not

criminal conviction which can only be warranted by legal evidence.


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PREVENTIVE DETENTIONGLOBAL STAND

United States

In the United States, the Sixth Amendment to the United States Constitution guarantees the right

to "a speedy and public trial". Thus, arrested persons may not be held for extended periods of

time without trial. In late June 2009, United States President Barack Obama was reported to have

been considering indefinite preventive detention for some Guantanamo captives.

New Zealand

In New Zealand, "preventive detention" is an indeterminate life sentence, and is handed down to

individuals convicted of violent and/or sexual crimes (such as sociopathic murderers, serial

rapists or recidivist pedophiles) where it is likely that the offender will reoffend if released. Such

individuals will only receive parole if they can demonstrate they no longer pose a threat to the

community. In October 2010, a total of 253 prisoners in New Zealand were serving terms of

preventive detention. Preventive detention has a minimum non-parole period of five years in

prison, but the sentencing judge can extend this if they believe that the prisoner's history

warrants it.

The longest non-parole period on a sentence of preventive detention is one of 26 years, being

served by sadistic killer Graeme William Burton, who shot dead two people and injured four

others between 1992-2007.


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HISTORICAL BACKGROUND OF PREVENTIVE DETENTION IN INDIA:

Although the history of preventive detention pre-dates the constitution and can be traced back to

the Bengal State Prisoners Regulation, 1818, ever since 1950, the Centre has been having

preventive detention laws except for two brief gaps, between January 1910 and May 1971 and

then from March 1977 till September 1980. In September 1980, the president promulgated the

National Security Ordinance, 1980 which ultimately became the National Security Act, 1980. In

addition to that there are other Central and State laws which provide for preventive detention.

Preventive detention was explained in Defence of India Act, 1915 by British for the first time.

The Defence of India Act 1915 , also referred to as the Defence of India Regulations Act, was an

Emergency Criminal Law enacted by the British Raj in India in 1915 with the intention of

curtailing the nationalist and revolutionary activities during and in the aftermath of World War I.

It would later be applied during the First Lahore Conspiracy trial in the aftermath of the failed

Ghadar Conspiracy of 1915. The Act, after the end of World War I, formed the basis of the

Rowlatt Act.

In 1939, the Viceroy Lord Linlithgow declared war on behalf of India on Germany and Italy as

the British were themselves at war with the Axis Powers. As the Viceroy had not consulted the

Indian Nationalist leaders and the Elected Legislative assemblies of the Provinces for their

opinion, the Indian leaders resigned their posts. After this incident, the British Parliament

enacted the Defence of India Rules 1939, by which anybody could be detained and no reason or

evidence was needed to be furnished for such detention. This Act was extensively applied during

the period of the Quit India Movement which began in 1942. The Act was then repealed at the

end of the War.

After Independence, the Parliament of India enacted the Preventive Detention Act, 1950. The

Act ceased to have effect on the 31st December, 1969 as it was repealed. At the time of

emergency former Prime Minister of India Indira Gandhi took the help of MISA and Defence of

India Act 1915 for making Preventive Detentions. But after the emergency was over and the

Janata Party came to power, the President promulgated the National Security Ordinance, 1980

which ultimately became the National Security Act, 1980.


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PREVENTIVE DETENTION PROVISIONS UNDER VARIOUS INDIAN LAWS:

1. THE CONSTITUTION OF INDIA

Art. 22 of the Indian Constitution explains the protection of the arrest from oppression and abuse

by the police and other enforcement officers. Clauses (1) and (2) Of Art. 22 ensures the

following four safeguards for a person who is arrested:

1) He is not be detained in custody without being informed, as soon as may be, of the grounds of

his arrest.

2) He shall not be denied the right to consult and to be defended by a legal practitioner of his

choice.

3) A person arrested and detained in custody is to be produced before the nearest magistrate

within a period of twenty- four hours of his arrest excluding the time necessary for the journey

from the place of arrest to the magistrates court.

4) No such person is to be detained in the custody beyond this period without the authority of a

magistrate.

There are two exceptions to these four rules:

1) Enemy aliens,

2) Persons arrested or detained under a law providing for preventive detention.

So preventive detention is one of the exceptions to the Art. 22.

In India, Preventive Detention can only be extended for three months. After three months, such a

case is brought before an advisory board for review. In India, this is given in the Constitution of

India under Right to Freedom, a Fundamental Right. Preventive Detention is included in Art. 22

of the Indian Constitution. Clause (4) to (7) of Art. 22 relate to Preventive Detention. If we look

at the Lists distributing legislative powers between State and the Union, we find that the subject

of preventive detention is mentioned in the Union list as well as in the Concurrent List. Both the

Centre and the States are free to have their own laws expect that in the case of conflict, it is the

Central Law that will prevail. However, the centers ambit is larger than that of the States as the

Centre can have a preventive detention law for reasons connected with defense, foreign affairs

and security of India by virtue of Entry 9 of List I, in addition to security of a State, the

maintenance of public order or of supplies and services essential to the community by virtue of

Entry 3 of List III.


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Though India is one of the very few nations which provide Preventive Detention during peace

time also, many other nations including United States, take it as a violation of Personal Liberty.

The Anti-Terrorism Act, 2005 passed by the Australian Parliament also does not provide the

power of Preventive Detention to the Australian Government. It is stated by Australian Security

Intelligence Organisation (ASIO); that detaining or interrogating an individual in almost all

circumstances is a crime.

In view of the new direction given to the Right to Life and Personal Liberty since Maneka

Gandhi v/s Union of India as well as the concern shown to that right in the Forty-fourth

Amendment making enforcement of Articles 20 and 21 non-suspendable even during a

Proclamation of Emergency and by amending clauses (4) and (7) of Article 22, a majorattack

was launched against the National Security Act, 1980 and the practice of PreventiveDetention in

A. K. Roy v/s Union of India. Among the various grounds of attack some wereof a preliminary

nature. For Example, the nature of ordinance making power and the power to bring an

amendment of the Constitution into effect. The Court decided that an ordinance is as much a law

as an Act and that the power expressly vested in the executive to bring an amendment of the

Constitution into effect at its discretion, does not violate any constitutional provision or principle

and the courts cannot compel the executive to bring an amendment ofthe Constitution into force.

Thus the Amended clauses (4) and (7) of Article 22, which could take effect only in a

notification from the Central Government and if such notification is not issued by the Central

Government, it remains inoperative. One of the major substantivearguments that the Act of 1980

and the concept of Preventive Detention in general wasviolative of the just and fair procedure as

has emerged through the relationship of Articles of14, 19 and 21, was negatived by the court on

the ground that though the Preventive Detentionlaws have to satisfy the requirements of Articles

14, 19 and 21, they can not beunconstitutionalised per se so long as Article 22 and the legislative

entries expressly sanctionthem. Several other grounds of attack related to the specific provisions

of the Act on the ground of their inconsistency with either Article 21 or 22. But all these

provisions wereupheld subject to some clarifications in respect of some of them.

2. Preventive Detention as under the Code of Criminal Procedure, 1973:

The two sections from the Code of Criminal Procedure, when read together give the police the

power of preventive detention. Preventive detention, a method solely reserved by the government

to detain an individual, withholding his/her freedom, without the prior awareness of the courts


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about the matter, is always seen as an indicator of autocracy, the degree of which depends on the

extent to which an individuals right are repressed without theparticipation of the judiciary. Thus

on the basis of this, a proper liberal democracy would have minimal preventive detention

measures available for the government. The Indian government for instance has through

legislation passed several acts on central as well as the state level giving the powers of

preventive detention in special cases, besides the sections provided in the CrPC. These laws

namely Prevention of Terrorism Act, 2002 (POTA), a successor of Terrorist and Disruptive

Activities (Prevention) Act (TADA) were brought up time and again to give boost to the

government at fighting terrorism by providing it extraordinary powers like detention of an

individual up to 180 days without filing of charges in the courts. These laws being controversial,

as they were suspected to be tools of political vendetta are soon to be scraped. Repealing POTA

is under way for now, and it is clear that the government is finding new ways of fighting

terrorism through less harsh and direct means. Looking at any law prima-facie would not give a

proper indication of the implementation of it in the practical world by less legally literate police

personnel. As in the cases of section 107 read with section 151 of the Cr.P.C, we see that the

legislation gives the police only 24 hours to detain an individual without filing charges in the

courts. These charges should be those of a cognizable offence and the individual must be shown

before the Executive Magistrate under whose jurisdiction the individual was arrested from or the

individual is from. The executive magistrate then may let the individual out on bail, if the matter

is not as serious or may send the individual to judicial custody. The legislation thus has many

checks on any apparent misuse by the police. However, the application of these laws is quite

different, where we have the police not understanding the spirit of the legislation and detaining

individuals for minor complaints where they pose no future threat to the peace of the society.

The police also due to the ambiguous language of these provisions find it as an easier route to

detain individuals for harassment or for imprisoning individuals who have committed cognizable

offences under other acts, like NDPS Act. In order to file a report more conveniently the police,

rather then charge an individual under an act like NDPS, which is a cumbersome process for

them as it includes collecting evidence and investigating, goes instead for these provisions,

which are easier to report. The Special Executive Magistrate, an officer of the rank of Additional

Commissioner of Police (ACP), acts as the Executive Magistrate as provided in the provision to

safeguard the individuals rights, andthe detainee is shown before him within 24 hours. This is


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the stage, which the legislation provides to check further wrongful detention of an individual.

Here the Magistrate is to check the charges and whether further detention of the detainee is

required. Here again due to lack of proper legal awareness and a laissez-faire attitude, the

magistrate may not check charges, as often they do not amount to cognizable offences by any

chance or may even send the bails surety for verification even when they have proper ID, and

thus the detainee comes into judicial custody wrongfully. Thus it is evident that though the spirit

of the legislation is right, the implementation is not done in the fair spirit. Amendment of the

provisions may give only temporary relief as it is more to do with the attitude of the law

enforcement agencies, as in the case of TADA or POTA, which were used more in cases of

political vendetta than for prevention of terrorism. The law enforcement agencies should be

sensitized and given the right education so that they do not use these provisions improperly.

Therefore it will be right to conclude taking these provisions as an example, that merely

legislating does not give a solution to a problem, it is the execution that matters most. As

preventive detention being misused is major resource wastage for the law enforcement agencies,

if restricted it may help manage resources more aptly.

3. Preventive Detention as given in other Acts:

Preventive detention was firstly introduced by the British government in the Defence of India

Act, 1915. Section 3 of the National Security Act, 1980 provides power of preventive detention

to the Central or state Govt. The Act also explains various provisions relating to it like when a

Central or state govt. can detain a person, execution of such detention orders, powers of central

or state Govt. in relation to the absconding persons, Constitution of advisory boards, procedure

of Advisory Boards, protection of actions taken in good faith, temporary release of the person

detained etc.

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

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.


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Review by Advisory Board-

To provide safeguards against arbitrary detention, clause (4) of Article 22 states that no law

providing for preventive detention shall provide detention of a person for a longer period than

three months unless an Advisory Board constituted by persons who are or have been or are

qualified to be High Court judges has reported before the expiration of the said period of three

months that there is, in its opinion, sufficient cause for such detention. If the Advisory Board

reports that the detention is not justified, the Government is duty bound to revoke the detention

order.(foot note- Shaibban Lal Saksena v. State of U.P., Air 1954 Sc 179) It is no business of

Advisory Board to express any opinion as to how much longer than three months the person

should be kept it detention. The expression such detention in Article 22(4)(a) refers to

preventive detention and not how long the person is to be detained. It is clear from clauses (4)

and (7) of Article 22 that the policy of Article 22 is, except where there is a Central Act to the

Contrary passed under clause (7) (a), to permit detention for a period of three months only, and

detention in excess of that period is permissible only in those cases where an Advisory Board, set

up under the relevant statute, has reported the sufficient cause for such detention.

In A. K. Gopalan v/s State of Madras [foot note- AIR 1950 SC 27], the majority held that the

word and in Article 22(7) (a) meant in the context or which meant that it was enough if

Parliament, under Article 22(7) (a), prescribed either the circumstances or the classes of cases in

which a person might be detained for a period longer than three months without reference of

Advisory Board. This meant that clauses (4) and (7) of Article 22 provide for two powers which

are alternative or independent: i) to make a law providing for a longer detention without an

Advisory Board and ii) to make a law providing for a longer detention without an Advisory

Board.

This view was rejected by the Supreme Court in Shambhu Nath Sarkar v/s State of West Bengal

[foot note- AIR 1973 SC 1425]. It was observed that if the theory pf independent alternative

power is accepted, clause (4) (a) would be totally nullified by clause (4)(b) readwith clause (7)

(a); such a construction would mean that though the Constitution makers laiddown a safeguard

against a law providing for a longer duration, they, in the very same breath, nullified that

safeguard by generally empowering Parliament to enact laws with longer period of detention

without the intercession of an Advisory Board. The language of clauses (4) and(7) does not bear

out such a construction. Moreover, the construction under which clause (4)(b) read with clause


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(7) lays down an exception to clause (4) (a) harmonises both the clausesand bring out the true\

intention in enacting the two clauses.

In State of West Bengal v/s Ashok Dey [foot note- AIR 1972 SC 1660], it was argued that since

clause (7) authorizes only Parliament to make a law for preventive detention for a period longer

than three months, a State Legislature in competent to make a law subject to such limitations as

have been specified in Article 22. If a State Legislature was intended by the Constitution to

function under a limitation in respect of the period of detention, such expression would have

been given expressly in the Article 22 by the makers of the Constitution. The only limitation

imposed by clause (4) of Article 22 is that no law providing for the preventive detention should

authorize such detention for over three months without the permission of the advisory board.

InFagu Shaw v. State of West Bengal [foot note- AIR 1974 SC 613], the question arose whether

Parliament is bound to prescribe the maximum period of detention under Article 22(7) (b) in

order that the proviso to Article (4) (a) might operate. The Supreme Court held that as Parliament

and State Legislatures have power under Entry 3 of List III in Schedule VII of the constitution to

pass a law enabling the detention of a person for a longer period than three months in case the

law provides for the opinion of the Advisory Board, there could be no limit to that period,

reasonableness apart. The proviso in Article 22(4) (a) merely enables Parliament to put a curb on

that power by prescribing the maximum period of detention under Article 22(7) (b). The proviso

does not,proprio vigore, compel Parliament to fix the maximum period.

So, the requirements of the Advisory Board can be dispensed in two cases: i) when the detention

is not to exceed the period of three months, and ii) under clause (4) (b) read with clause (7) (a)

and (b) of Article 22.

In Puranlal Lakhanlal v. Union of India [foot note- AIR 1958 SC 163], the Supreme Court

observed that the constitution evidently does not contemplate detention of a person for the period

of three or less as sufficiently serious to have the safeguard of a report by an Advisory Board to

the effect that there is sufficient causes for detention.


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Grounds of Detention and Representations:

Clause (5) of Article 22 gives two rights to the detenu. First, he has the right to be communicated

the grounds on which the order of detention has been made against him and that is to be done as

soon as may be. [foot note-Durga Pada Ghosh v. State of W.B. 1972 (2) SCC 656/ AIR 1972 SC

2420] Communication here means inparting to the detenu sufficient knowledge of all the

grounds of detention which are in the nature of charges against him. Thus, where the detenu did

not know sufficient English to understand the grounds communicated to him, it was held that

there was no sufficient compliance with the requirements laid down in the constitution. (foot

note-Harikishan v. State of Maharashtra AIR 1962 Sc 911). The grounds for making the order

are the reasons on which the detaining authority was satisfied that it was necessary to make the

order. The grounds are conclusion of the facts and not a complete detailed recital of facts.

Grounds also include all materials on which those conclusions are based. No part of such

grounds can be held back nor can new grounds be added thereto. (foot note- State of Bombay v.

Atma Ram Sridhar Vaidya, AIR 1951 SC 157). The constitutional right of the detenu will

equally be infringed where any of the grounds supplied earlier is revoked by the detaining

authority subsequently.

In Shibban Lal Saksena v. State of Uttar Pradesh the petitioner had been supplied with two

grounds of his detention. Subsequently, the detaining authority revoked one of the grounds. It

was contended that in these circumstances the detention is illegal and the petitioner is entitled to

be released. In reply, the state contended that the remaining ground was sufficient to sustain the

detention order. The Supreme Court held the detention invalid and observed as follows:

To say that the other ground, which still remains, is quite sufficient to sustain the order, would

be to substitute an objective judicial test for the subjective decision of the executive authority

which is against the legislative policy underlying the statute. In such cases, we think, the position

would be the same as if one of these grounds was irrelevant for the purposes of the Act, or was

wholly illusory and this would violate the detention order as a whole.

The other right which a detenu has been given is that he should be afforded the earlier

opportunity of making a representation against the order. But without getting information

sufficient to make a representation against the order of detention, it is not possible for detenu to

make representation. Hence the Supreme Court has held that the detenu should be furnished with

particulars of grounds of his detention sufficient to enable him to make a representation which on


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being considered may give him relief. And any delay in supplying these documents results in

setting aside the detention. (foot note- M.M. Patel v. State of Maharashtra AIR 1981SC 510).

Non-specification of the prejudicial activities in the detention order does not vitiate the order so

long as such particulars have been stated in the grounds of detention. It is pointed out in the

earlier paragraph that no new ground can be added to those supplied earlier. But particulars as

distinct from grounds may be supplied in subsequent communication, which may be sent to the

detenu sometime afterwards. (foot note- State of Bombay v. Atma Ram Sridhar Vaidya). Also if

the disclosure of any facts is against the public interest, the detaining body may not disclose

those facts. So the obligation to furnish particulars and the duty to consider whether the discloser

of any facts involved therein is against the public interest, are vested in the detaining authority,

not in any other body.

Vague grounds:

There is an obligation on the part of Government to furnish the grounds on which the order of

detention is based. This constitutional obligation is not discharged if the4 grounds which are

communicated to the detenu are vague. A ground will be vague when it does not enable the

detenu to make an effective representation against the order of detention. The question whether

grounds furnished are vague or not depends upon the facts and the circumstances of each case. It

has been pointed out by the Supreme Court in a case State of Bombay v/s AtmaRam Sridhar

Vaidya.

The Supreme Court in this case observed that The contention that the grounds are vague

requires some clarification If the ground which is supplied is incapable of beingunderstood or

defined with sufficient certainty, it can be called vague. It is not possible to state affirmatively

more on the question of what is vague. It must vary according to the circumstances of each

case If, on reading the ground furnished it is capable of being inte4lligently understood, and is

sufficiently definite to furnish materials to enable the detained person to make a representation

against the order of detention, it can not be called vague.

It follows that the constitutional right of the detenu would be if he is not supplied with

reasonably definite grounds. (foot note-Lawrence J. Joseph DSouza v. State of Bombay,AIR

1956 SC 531) Equally the grounds would be vague if the authority has not furnished the detenu


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adequate particulars of the grounds of detention to enable a proper representation to be

made.(foot note-State of Bombay v. Atma Ram Sridhar Vaidya, AIR 1951 SC 157)

Public Order:

By the expression Maintenance of public order what is intended is the prevention of grave

public disorder. It is not the same as maintenance of law and order. Maintenance of law and

order means the prevention of disorders of comparatively lesser gravity and of local significance.

The expressions law and order and public order and security of the state are distinct

concepts though not always separate. Law and order represents the largest circle within which

is the next circle representing public order and the smallest circle represents the security of

the state

Irrelevant Grounds:

The grounds supplied to the detenu must not be irrelevant. If ther grounds are not relevant to the

object of the legislation the right of the detenu under clause (5) is violated. Thus if the ground for

detaining a person under the preventive Detention Act, 1950 is that he published a defamatory

pamphlet against a judge of the High Court the ground is irrelevant because the Act does not

authorize detention for contempt of court. (foot note- Sodhi Shamsher Singh v/s State of Pepsu

AIR 1954 SC 276)

Subjective Determination of the Executive:It is the right of the executive to determine whether there is sufficient material for ordering a man

to be put under preventive detention. The test is subjective and the court would not examine the

decision of the detaining authority by applying an objective test. The whole attitude of the court

is stated in clear terms in the following observation of Mukherjea, J. in case Maswood Alam v/s

Union of India [foot note- AIR 1973 SC 897]:

It has been held by this Court, on more occasions than one, that the propriet y or the

reasonableness of the satisfaction of the Central or the State Government upon which an order

for detention under Section 3, Preventive Detention Act, 1950 is based, cannot be raised in this

Court and we can not be invited to undertake an investigation into the sufficiency of the matters

upon which such satisfaction purports to be grounded. We can.


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However, examine the grounds disclosed by the Government to see if they are relevant to the

objects which the legislation has in view, namely, the prevention of objects prejudicial to the

defence of India or the security of the State and maintenance of law and order therein.

The jurisdiction of preventive detention, sometimes described as jurisdiction of suspicion,

depends on subjective satisfaction of the detaining authority. This jurisdiction is thus essentially

different from that of judicial trails for the commission of offence and also from preventive

detention security proceedings in criminal courts, both of which proceed on objective

consideration of the necessary facts for judicial determination by courts of law and justice and

functioning according to the prescribed procedure. Thus preventive detention cannot be

considered mala fide even if the objectionable activities attract the provisions of Chapter VIII of

CrPC relating to security for keeping peace and for good behaviour provided the authority

concerned is satisfied of the necessity of the detention as contemplated by the preventive

detention law, that is, if the grounds are relevant and germane to the object of law.

[foot note- Masood Alam v. Union of India Air 1973 Sc 897]

Krishna Iyer, in Sadhu Roy v/s State of West Bengal [foot note- AIR 1975 SC 919], has observed

that the subjective satisfaction is real satisfaction and sham satisfaction is no satisfaction. The

jurisprudence of preventive detention without trial is not the vanishing point of judicial review.

The area and depth of probe, of course, is conditioned by the particular law, its purpose and

language. But our freedoms are not wholly free unless the judiciary has a minimal look at their

executive deprivation, even though under exceptional circumstances. However the authority need

not give reasons for rejecting the detenus representation.

The courts however, scrutinize whether the detention is for a purpose for which the Act

authorized it.


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PROCEDURE OF ADVISORY BOARDS:

Power is given under clause (7) (c) to Parliament to prescribe the procedure to be followed by an

advisory board in an enquiry under sub-clause (a) of clause (4). The procedure laid down in

parliamentary legislation will override the procedure established by a State law. The idea is to

prevent, as far as possible, hazardous and unjust procedure being laid down under State

enactments. In addition to the procedure which Parliament may lay down, the courts have

evolved certain norms to be followed in respect of the proceedings before the Advisory Boards.

It has been held in the caseA.K. Roy v/s Union of India that an Advisory Board is not a judicial

or quasi judicial body and therefore it is not required to follow the required procedure for such

bodies.

The board is in fact in the nature of a body charged with the responsibility of advising the

executive in regard to cases of preventive detention where it is intended that such detention will

last for more than three months. Therefore, a detenu can not claim the right of crossexamination

in the proceedings before the Advisory Board. But right to a real and effective personal hearing

by the board to the detenu has been recognised in case the detention law says that such hearing

has to be given if the detenu so desires. This was held by Supreme Court in Hamid Sarfaraz v/s

M. S. Kashekar. [foot note- AIR 1981 SC 459] Moreover, in the absence of any provision to the

contrary, the detenu has the right to offer oral and documentary evidence before the Advisory

Board in order to rebut the allegations made against him. It was held in the landmark judgment:

A.K. Roy v/s Union of India.

The observation inFrancis Coralie v/s Union Territory of Delhi [foot note- AIR 1981 SC 746,

751] that a detenu has the right to consult a legal advisor of his choice for any purpose including

his release from preventive detention has been left open by the Court in A.K. Royv/s Union of

India without conformation or rejection. But it has been held that if the detaining authority or

the Govt. takes the aid of legal practitioner or advisor before the dvisory Board, the detenu must

be allowed the facility of appearing before the Board through a legal practitioner. And denial of

such facility invalidates detention. It was held in Nand Lal v/s State of Punjab [foot note- AIR

1981 SC 2084]

It has further been held in landmark judgment of A.K. Roy v/s Union of India that the detenu is

entitled to be aided or assisted, if he so demands, by a friend, who in truth and substance, is not


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a legal practitioner in the proceedings before the Board. Denial of such facility to the detenu

invalidates his detention.

But the detenu has to make a request to the Board that he wants to be represented by a friend. In

the absence of such request the Board is not obliged to tell him that he can avail of such facility.

It was observed by the Supreme Court inPhillipa Anne Duke v/s State of TamilNadu [foot note-

AIR 1982 SC 1178,1181].

The board must conclude its proceedings expeditiously and must express its opinion within the

time prescribed by law. Failure to do so makes the detention invalid. Along with its opinion the

Board must forward the entire record of proceedings before it to the government because the

government is supposed to take a decision on the perusal of the entire record which it cannot do

in the absence of the record. Therefore any decision to continue the detention without going

through such record makes the detention illegal for non-application of mind.

In the absence of an independent office and staff the, Advisory Board can use the government

staff for the purpose of correspondence, etc. even with the detenu. Such use does not vitiate the

opinion of the Board. It was held in the case Nand Lal v/s State of Punjab [foot note- AIR 1981

SC 2041,2045]


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Preventive Detention is not punitive: SC

In a major judgement, the Supreme Court has ruled that preventive detention of a known

smuggler cannot be termed to be punitive in nature and the period of such detention could not be

discounted from an imprisonment sentence awarded to him after conviction in a smuggling case.

A Bench comprising Justice Shivaraj V. Patil and Justice Arijit Pasayat said "detention under the

preventive detention laws is not punitive but essentially a precautionary measure intended to

prevent and intercept a person before he commits an infra-active act which he had done earlier."

This ruling came on a petition filed by one Maliyakkal Abdul Azeez who claimed that he was

entitled to set off as provided under Section 428 of the Criminal Procedure Code for the period

of preventive detention under the Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act (Cofeposa) since the detention was quashed by the Delhi High Court.

Quoting the famous 1917 case titled Rex Vs Halliday, the Bench said Preventive detention "is

not punitive but precautionary measure."

The Bench said "The object is not to punish a man for having done something but to intercept

him before he does it and to prevent him from doing it."

No preventive detention without proof

In a case, Pooja Batra vs Union of India & Others on 27 March, 2009, the Supreme Court has

held that a person cannot be held in preventive detention (custody) without adequate evidence as

otherwise it would be violative of his or her 'personal liberty' guaranteed by the Constitution.

In matters relating to preventive detention, authorities have to examine whether there was any

organised act or activity giving room for an inference that the detainees would continue to

indulge in similar prejudicial activity warranting detention of the person, the apex court said.

"In an appropriate case, if there is no adequate material for arriving at such a conclusion based

on solitary incident, the court is required and is bound to protect him in view of the personal

liberty which is guaranteed under the Constitution of India [ Images ]," a bench of Justices

Dalveer Bhandari and P Sathasivam observed.

Under law, a person can be held under 'preventive detention' for a certain period if there are

sufficient evidence to indicate that the accused has the propensity to indulge in criminal

activities, if he/she is not detained by the authorities. The bench passed the observation while

upholding an appeal filed by Pooja Batra [ Images ], challenging the preventive detention of her


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husband Deepak Batra by Customs authorities, under the Conservation of Foreign Exchange and

Prevention of Smuggling Activities Act.

The authorities held Deepak Batra under preventive detention on the ground that he had

smuggled goods into the country since 2006, though they did not have adequate evidence to back

up their charge. The accused's wife filed a petition in the Delhi [ Images ] High Court against the

detention but it dismissed her plea and imposed a fine of Rs 50,000 on her, following which she

appealed in the apex court.

Upholding her appeal, the apex court said there was no material on record to establish the charge

of the Customs authorities that the accused was indulging in smuggling activities warranting his

preventive detention.

"There is nothing in the order of detention which would indicate that any of the said earlier

imports were effected in contravention of any of the provisions of the Customs Act, 1962, or that

they could have been regarded as having been smuggled into the country," the bench observed.

The apex court, while quashing the detention order, also relieved the petitioner of the Rs 50,000

fine imposed by the high court.

Supreme Court has expressly given its opinion on preventive detention in various cases. Some of

the important Judgments of the Supreme Court of India are as follows:

1) A.K. Gopalan v. State of Madras: In this case the Honble Supreme Court of India held that

clauses (4) and (7) of Article 22 provide for two powers which are alternative or independent: i)

to make a law providing for a longer detention without an Advisory Board and ii) to make a law

providing for a longer detention without an Advisory Board.

2)Maneka Gandhi v/s. Union of India: In this case the concern shown by the Supreme Court to

that right in the Forty-fourth Amendment making enforcement of Articles 20 and 21

nonsuspendable even during a Proclamation of Emergency.

3)A.K. Roy v/s. Union of India: The Supreme Court held that the Amended clauses (4) and (7) of

Article 22, which could take effect only in a notification from the Central Government and if

such notification is not issued by the Central Government, it remains inoperative.

4)Pooja Batra v/s. Union Of India & Others: the Supreme Court has held that a person cannot be

held in preventive detention (custody) without adequate evidence as otherwise it would be

violative of his or her 'personal liberty' guaranteed by the Constitution.


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CRITISISM AND SUGGESSIONS:

India is one of the few countries in the world whose Constitution allows for preventive detention

during peacetime without safeguards that elsewhere are understood to be basic requirements for

protecting fundamental human rights. For example, the European Court of Human Rights has

long held that preventive detention, as contemplated in the Indian Constitution, is illegal under

the European Convention on Human Rights regardless of the safeguards embodied in the law.

South Asia Human Rights Documentation Centre (SAHRDC), in its submission to the NCRWC

in August 2000, recommended deleting those provisions of the Constitution of India that

explicitly permit preventive detention.

Specifically, under Article 22, preventive detention may be implemented ad infinitum whether in

peacetime, non-emergency situations or otherwise. The Constitution expressly allows an

individual to be detained -- without charge or trial -- for up to three months anddenies detainees

the rights to legal representation, cross-examination, timely or periodic review, access to the

courts or compensation for unlawful arrest or detention. In short, preventive detention as

enshrined under Article 22 strikes a devastating blow to personalliberties.

It also runs afoul of international standards. Article 4 of the International Covenant on Civil and

Political Rights (ICCPR) which India has ratifiedadmittedly permits derogation from

guaranteeing certain personal liberties during a state of emergency. The Government, however,

has not invoked this privilege, nor could it, as the current situation in India does not satisfy with

standards set forth in Article 4.

If preventive detention is to remain a part of Indias Constitution, it is imperative that its use be

confined to specified, limited circumstances and include adequate safeguards to protect the

fundamental rights of detainees. Particular procedural protections are urgently needed (i) to

reduce detainees vulnerability to torture and discriminatory treatment; (ii) to prevent officials

misusing preventive detention to punish dissent from Government or from majority practices;

and (iii) to prevent overzealous government prosecutors from subverting the criminal process. In

pursuit of these goals, SAHRDC made the following recommendations in its submission to the

NCRWC

First, Entry 3 of List III of the Constitution of India, which allows Parliament and State

Legislatures to pass preventive detention laws in times of peace for the maintenance ofpublic

order or maintenance of supply and services essential to the community, should be deleted.


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Assuming that preventive detention could be justified in the interest of national security as

identified in Entry 9 of List I of the Constitution, there is still no compelling reason to allow this

extraordinary measure in the circumstances identified in Entry 3 of List III.

Second, lacking clear guidance from the Constitution, courts have applied vague and toothless

standards -- such as the subjective satisfaction of the detaining authority test to govern the

implementation of preventive detention laws. If preventive detention is to remain in the

Constitution, constitutional provisions must include well-defined criteria specifying limited

circumstances in which preventive detention powers may be exercised -- and these standards

must be designed to allow meaningful judicial review of officials actions.

Third, under Article 22(2) every arrested person must be produced before a magistrate within 24

hours after arrest. However, Article 22(3) (b) excepts preventive detention detainees from Clause

(2) and, as a consequence, it should be repealed in the interest of human rights. At present,

detainees held under 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. At the very least, the Government should finally bring Section 3 of the Forty-

fourth Amendment Act, 1978 into effect, thereby reducing the permitted period of detention to

two months. Though still a violation of international human rights law, this step would at least

reduce the incidents of torture significantly.

Fourth, 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 Constitution must be amended to include clear

criteria for officials to follow, and subject compliance with those standards to judicial review.

Fifth, the Constitution provides that the detaining authority must refer to the Advisory Board

where detention is intended to continue beyond three months. No provision exists for the

consideration of a detainees case by the Advisory Board more than once. Yet, periodic review is

an indispensable protection to ensure that detention is strictly required and fairlyadministered.

Hence, the Constitution should mandate periodic review of the conditions and terms of detention.

Sixth, detainees must receive detailed and prompt information about the grounds of their arrest.

Currently, the detaining authority is required only to communicate the grounds of detention to


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the detainee as soon as may beafter the arrest. Article 9(2) of the ICCPR provides that [a]

one who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall

be promptly informed of any charges against him. Detainees must beguaranteed a minimum

period in which the grounds are promptly communicated to them, and be given information

sufficient to permit the detainee to challenge the legality of his or her detention

Seventh, individuals held under preventive detention must be given the right to legal counsel and

other basic procedural rights provided by Articles 21, 22(1) and 22(2) of the Constitution. Article

22(1) of the Constitution, for example, guarantees the right to legal counsel, but Article 22(3)(b)

strips this right from persons arrested or detained under preventive detention laws. Relying on

these provisions, the Supreme Court stated, in AK Roy v. Union of India, that detainees do not

have the right to legal representation or crossexamination in Advisory Board hearings. Contrary

to Indias constitutional practice, the U.N. Human Rights Committee has stated, all persons

arrested must have immediate access to counsel. Article 22(3) (b) of the Constitution denying

detainees virtually all procedural rights during Advisory Board hearingsmust be repealed.

Eighth, Article 9(5) of the ICCPR provides the right to compensation for unlawful detention,

except during public emergencies. A similar provision creating a right to compensation is

included in section 38 of the Prevention of Terrorism Bill of 2000 (though the bill is otherwise

effectively a reconstitution of the lapsed Terrorist and Disruptive Activities Prevention Act

(TADA)). The Law Commission charged with reshaping the anti-terrorism legislation observed

that Supreme Court orders have held that people are effectively entitled to compensation, in

practice superseding Indias reservation to Article 9(5) of the ICCPR. In this light, the

Government of India should promptly withdraw its reservation to Article 9(5) of the ICCPR and

include a Constitutional provision guaranteeing the right to compensation, at least for unlawful

detention during peacetime. In keeping with the overriding spirit of the Constitution and with

minimum standards of international human rights law, it is essential that the Constitutional

reforms discussed above be adopted. The process set in motion by establishing the NCRWC

provides a unique opportunity for such an important realignment of Indias Constitution with

prevailing international human rights standards. The key will be political willpower and the

commitment to seeing justice done.


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CONCLUSION:

The Indian Constitution provides that in Preventive Detention, a person is detained without trial

in the subjective satisfaction of the executive to prevent him from doing undesirable acts in

future. The laws on preventive detention are not flawless. But Supreme Court of India has drawn

various safeguards in this regard so that the laws of Preventive Detentions cannot me misused

like they were misused at the time of Emergency of 1975. The Supreme Court has tried to clear

out the confusions relating to the Art. 22 in which Preventive Detention is given as one of the

exceptions to the Right of Protection against Arrest . It is crystal clear that Preventive Detention

does not violate the rights of individuals given under Article 14, 21, 19, 32 and 226. Preventive

Detention is explained not only in the Constitution of India but also in other various Acts like

Criminal Procedure of India, MISA, National Security Ordinance 1980, the Preventive Detention

Act, 1950. Advisory Board plays a vital role in giving its opinion about the detention to the

executive and it also has the right to decide whether the detention made is legal or not.

Constitution of India has made it clear that Preventive Detention beyond Three months cannot be

made without the consent of Advisory Board.


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BIBLIOGRAPHY:

1.Jain M. P., Indian Constitutional Law, 6th Edition, 2010

2.Kumar Narendra, Constitutional Law

3. Singh Mahendra P., Constitution of India 41

4.Rai Kailash, The Constitution of India

5.Austin Granville, Working a Democratic Constitution: A History of the Indian Experience, 6th

Impression 2009

preventive detention under the constitution in india

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