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Preventive Detention: A necessary evil?

  • Category
    Polity & Governance
  • Published
    10th Aug, 2021

Context

Recently a two judge bench of Supreme Court has quashed a preventive detention order which was earlier upheld by the High Court for the State of Telangana at Hyderabad.

Background

  • Under Section 151 of The Criminal Procedure Code, 1973 (CrPC) preventive detention is action taken on grounds of suspicion that some wrong actions may be done by the person concerned.
  • A police officer can arrest an individual without orders from a Magistrate and without any warrant if he gets any information that such an individual can commit any offense.
  • Article 22 of the Indian Constitution provides protection against arrest and detention in certain cases.

Analysis

What is the difference between preventive detention and an arrest?

  • An ‘arrest’ is done when a person is charged with a crime. An arrested person is produced before a magistrate within the next 24 hours.
  • In case of preventive detention, a person is detained as he/she is simply restricted from doing something that might deteriorate the public order.
  • In the case of Union of India v. Paul Nanickan and Anr, the Supreme Court stated that the purpose of the preventive detention isn’t to punish any person for doing something but to obstruct him before he does it and deter him from doing so.
  • The reasoning for such detention is based on suspicion or reasonable possibility and not a criminal conviction, which can be justified only by valid proof

Regulations in post independence India for Preventive Detention

  • The first Preventive Detention Act was passed after independence in 1950. But this act was questioned on its validity in the case of AK Gopalan v. the State of Madrasat the Supreme Court and with the exception of some provisions, the Supreme Court held the act constitutionally valid.
  • Starting from pre-independence till now there have been several laws made in regard to preventive detention such as 
    • Maintenance of Internal Security Act (MISA), 1971
    • Foreign Exchange Conservation and Prevention of Smuggling Activities (COFEPOSA), 1974
    • Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985
    • Prevention of Terrorist Activities Act (POTA), 2002
    • Unlawful Activities (Prevention) Act, 2008

Judiciary in Preventive Detention Cases

  • In the case of Prem Narayan v. Union of India, the Allahabad High Court stated that preventive detention is an infringement upon the personal freedom of an individual and it can’t be infringed in an easy-going way
  • In the case of ShibbanLal v. State of Uttar Pradesh, the Supreme Court of India stated that a courtroom isn’t even competent to enquire into reality or in any case of the facts which are referenced as the grounds of detainment.
  • In Haradhan Saha case, the Supreme Court held that if a person is liable to be tried for a criminal offence, but the ordinary criminal laws are not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to.
  • In the case of Banka Sneha v. State of Telangana, the Supreme Court held that Preventive Detention Order can only be passed against a Detenu if his activities adversely affect or are likely to adversely affect the maintenance of public order.

Why Preventive Detention laws should find no place in our statute books?

  • There have been different circumstances of abuse of Preventive Detention powers for political advantages or to control free discourse and articulation.
    • National Security Act was utilized in Uttar Pradesh to ensure transparent and corruption-free examinations or captures were made for the issues rising up out of neighbourhood cricket disagreements.
  • Unreasonable capacity to detain an individual without much checks and balances and the least legal impedance expands the chance of conceivable abuse of power to detain an individual.
  • In the case of Rekha v. State of Tamil Nadu, the Supreme Court of India stated that Prevention detention is, ordinarily, repugnant to democratic ideas and abhorrent to the rule of law.
  • No such law exists in the USA and in England (with the exception during wartime)

What needs to be done?

  • It is clear that in certain cases the laws pertaining to colonial history now have to be modified or updated over time. Now there is a need for security and human rights to go hand in hand
  • It now requires an evaluation of the laws and their regulation. The state must take the responsibility to compensate the acquitted detenu in the place of damages caused relating to life, health, income, etc.
  • A proper system should be made which will make sure that the rights are being made available to the detenu during the detention period.
  • If any accusations for coercive actions are made, it should be taken in a serious way and should be followed by a proper investigation by an appropriate authority.

Conclusion

The preventive detention laws are not completely just fair and reasonable and need some changes or alterations to fit in well within the scope of the Right to life and liberty.

A moral assessment must be taken because, at one end of the spectrum, the lives and personal freedom of vast areas of society must be respected and, at the other end, the life and personal freedom of the person detained must be taken care of.

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