Preventive detention is physical detention of a person which is of preventive nature i.e., with a view to prevent him from doing an act which is undesirable and poses a threat. Threats posed may be to the defense and foreign affairs, security of India or security of State, Public order or maintenance of supplies and services essential to the community. Preventive detention is when a person is detained in advance of committing a crime in order to safeguard society's peace and order. A Police Officer may detain a person without a Magistrate's order or a warrant if the officer suspects the person of committing a crime in order to prevent acts that endanger 'public peace and order' or 'national security.'
Distinction between Preventive Detention and Punitive Detention
Detention apprehending the commission of an act
Detention pursuant to the commission of an offence
Detention with a view to prevent the commission of an act/offence
Detention is a part of the process to fix liability for the commission
Detention without a trial
Detention precedes the Trial unless no prima facie case is made out.
Preventive Detention under the Constitution of India: Preventive Detention finds its mention in the Constitution of India under both the Union and the Concurrent List of the VII Schedule which lays down the subject matters upon which the Centre and the State can enact laws on the same. Under Entry 9 of the Union List, the Centre is competent to enact laws for preventive detention for security of India. Under Entry 3 of the Concurrent List, both the Centre and the State is competent to enact preventive detention law for the security of a state, the maintenance of public order, or maintenance of supplies and services essential to the community.
Article 22 of the Indian Constitution speaks of protection against arrest and detention. The first two clauses of Art.22 speak about punitive detention which confers two types of rights wherein Art.21(1) provides to the arrested person the right to be informed of grounds of arrest and a right to consult a legal practitioner. Further under Art.21(2) speaks of the arrested person to be produced before a Magistrate within 24 hours and no detention can go beyond 24 hours or else he has to be released. Article 22(4) speaks that a person cannot be detained for more than three months unless by an authorisation of an advisory board who may feel the need for detention for a period more than three months but subject to the maximum period prescribed by law made by parliament. Under Art.22(5), the rights of a detenu is mentioned wherein a detenu has a right to the communication of the grounds for detention and the earliest opportunity of making representation against the detention order.
Legislative History Providing for Preventive Detention: The concept of preventive detention is not new in nature and there were series of legislations which has led to today’s preventive detention laws. Since 1818, British colonial control in India has had laws authorising preventative detention. Many activists of the civil rights movement were imprisoned for years without ever being tried or convicted. The Executive Branch's authority arresting someone on suspicion dates back to the early days of British rule in India.
Bengal Regulation III [the Bengal State Prisoners Act] was enacted in 1818 which conferred the ability to detain someone on suspicion. Further Rule 26 of the Defence of India Rules, 1939 empowered the government to detain a person if it was "satisfied with respect to that specific individual that such detention was necessary to prevent him from acting in any manner prejudicial to the defence and safety of the country and the like”.
Eventually after independence, the Preventive Detention Act was enacted in 1950. The Preventive Detention Act, 1950 was enacted soon after the Constitution of India came into force. This legislation was enacted in the backdrop of communal violence and internal disturbance arising out of the devastating violence and displacement accompanied by the partition of India. This legislation authorized the government to detain individuals without charge for up to a year. Initially it was passed as a temporary law for twelve months to deal with challenges governing after the partition. This law was renewed for almost two decades which finally expired in 1969. The operative section of the Act, s.3 used the “satisfaction” formula authorizing the Central or State government to make an order directing any person to be detained if the government or any specified officer is “satisfied” that it was necessary to do so with a view to prevent such persons from acting in a manner prejudicial to the social interests namely the defense of India, the security the state or the maintenance of public order. Section 14 carried confidentiality to the extreme as it forbade any court from permitting the disclosure before it of the substance of any communication of the grounds of detention made by the government to a person detained.
The MISA was enacted in right after the repealing of PDA in 1969 in 1971. MISA reinstated most of the PDA's preventative detention powers. When the government declared a state of national emergency in 1975, these powers were expanded, and procedural safeguards established into MISA were abolished. MISA was employed ruthlessly by Prime Minister Indira Gandhi's government against political opponents, trade unions, and civil society organisations who posed a threat to the government. Sec.18 was one of the most shocking provisions added to MISA during the emergency wherein it stated that no person shall have any right to personal liberty by virtue of natural law or common law making it one of the most draconian security law. The government ended the state of emergency in 1977 and scheduled national elections. The Prime Minister and her party were voted out of office, and the new national government, which included some members who had been held without charge, repealed the MISA.
· A K Gopalan v. State of Madras: In the case of AK Gopalan v The State of Madras, the legitimacy of the Preventive Detention Act, 1950 was challenged in court, where it was clear that an individual's freedom did not qualify as granted by Article 21. The Supreme Court refused to consider whether there were any flaws in the legal procedure because it took a narrow reading of Articles 21 and 22. It was believed that each constitutional article was independent of the others. When the petitioner questioned the constitutionality of his imprisonment on the basis that it infringed his rights under Articles 19 and 21 of the Indian Constitution, the Supreme Court dismissed all claims that the detention could be justified simply because it followed "legally established procedure."
· Add. District Magistrate v. Shivkant Shukla: The challenge before the Supreme Court was as to whether a person can challenge preventive detention of his on the grounds that the law under which his freedom has been taken away from him has actually not been complied with and the fact that the exercise of the executive discretion in ordering preventive detention is actually made with arbitrariness and Malafide intention. The then-Prime Minister Smt. Indira Gandhi imposed 'emergency' through a proclamation by then-President Fakhruddin Ali Ahmad under Article 352(1) of the Constitution, posing one of the most significant challenges to the judiciary's independence and integrity. In this situation, the government proclaimed a state of emergency, stating that internal disturbances posed a serious threat to our country's security. With her action, the power under Article 359(1) was invoked, and the right to petition the Supreme Court to enforce Article 14 (which deals with equality), Article 21 (which deals with life and personal liberty), and Article 22 (which deals with protection against detention in certain circumstances) was suspended. People who were considered political opponents or critics were put into custody as soon as these provisions were applied. Many people were detained during the emergency period which led to different petitions being filed before 11 High Courts across India wherein the courts accepted the contentions of the petitioners that their detention order was not in conformity with the statute under which they were detained. The Supreme Court gave a very grave verdict. Except for Justice Khanna, the four judges were of the opinion that during a state of emergency, the government's actions, whether arbitrary or illegal, cannot be questioned. This is because, in such circumstances, the government protects the nation's existence by exercising extraordinary powers, which are granted to them as a matter of emergency. As a result, because liberty is a gift from the law, it can also be taken away by the law.
· In Maneka Gandhi v. Union of India, the court significantly expanded the definition of "personal liberty" and interpreted it to its fullest extent. The court pointed out that Article 21 does not preclude Article 19, and that any act restricting a citizen's personal liberty must pass both Article 21 and Article 19 scrutiny.
Judicial Review of Detention Order: In various judgements, the grounds of challenging order of Preventive detention, the court has to look into that there has to be a reasonable nexus between the grounds of detention order and detention order passed. Sufficiency of grounds of detention to merit detention not required but the grounds cannot be non-existent or misconceived or irrelevant. In Mahesh Kumar Chatham @ Banta v. Union of India and others, the Supreme Court held that even the matter is serious in nature, in clamping preventive detention of a person any infringement of the constitutional mandate in Article 22( 4) and (5), cannot be ignore. On 15.4.1988, a detention order was issued in Shafiq Ahmad v. District Magistrate, Meerut, between the 15th of April and the 12th of May 1988, no attempt was made to apprehend him. The government said that the reason for the delay was that from May to September 1988, the whole police force was involved in maintaining law and order. The court declined to accept this as a legitimate or acceptable basis for the delay, and the detention order was overturned. The Court stated in State of Punjab vs. Sukhpal Singh, emphasising the importance of the procedural requirement in Article 22(4) (5) of the Indian Constitution: Personal liberty is substantially protected by enforcing compliance with the necessary procedure. Observance of process has long been the bulwark against indiscriminate assaults on personal liberty in circumstances of preventive detention. Without a question, the most important purpose of the state is social security, but it is not the only goal of a good society. In a society, there are other significant values. Personal liberty is one of the most important and fundamental rights guaranteed by the Constitution, and it can only be taken away through legal means. In Pebam Ningol Mikoi Devi v. State of Manipur, a person was imprisoned by the Government of Manipur under the National Security Act of 1980, as if he had ties to the United National Liberation Front (UNLF), an extreme group. He was discovered in possession of money entrusted to him by the Extremists' leader for extraction. The detainee presented his case. The Governor of Manipur denied it, and he confirmed his arrest. His incarceration was eventually challenged in the Supreme Court. The Supreme Court determined that the grounds for custody and the papers relied on by the detaining authority have no probative value and are irrelevant to the scope, purpose, and goal of the National Security Act and hence the detention order was quashed. Individual liberty is seriously harmed by preventive detention. The reasons, purposes, and manner of such confinement must all be documented. As a result, the courts will scrutinise and examine it closely.
Justified preventive detention
To understand, in general, the nature and justification of preventive detention laws in India, four issues merit detailed explication:
(1) the grounds upon which detention orders may be issued: Even if no guilt is suspected, Indian law permits imprisonment of individuals to prevent acts that endanger "public order" or "national security." However, neither the Constitution nor current preventive detention legislation attempt to define the range of acts that are considered threatening to "public order" and "national security," or the range of acts (or associations) that support the inference that an individual is likely to commit such acts. Courts have analysed executive allegations of risks to "public order" or "national security" supporting particular detention orders, mindful of this problem. Regrettably, courts have not been able to construct a uniform jurisprudence that gives substance to these conceptions. The Supreme Court endeavoured to distinguish between the concepts of "security of state," "public order," and "law and order" in Ram Manohar Lohia v. State of Bihar. Justice Hidayatullah emphasised in a widely quoted comment that only the most heinous of crimes may justify preventive detention: Three concentric rings must be visualised. The largest circle represents law and order, with the next circle representing public order and the smallest circle signifying state security. It's easy to see how an act can effect law and order but not public order, or how an act can affect public order but not state security. In Arun Ghosh v. State of West Bengal, for example, the Court endeavoured to define "public order" more precisely by specifying the kinds of activities that violate it. The Court reasoned that "public order" is "the even tempo of the community's existence, taking the country as a whole or even a specific locality into account." Acts directed against individuals that do not disrupt society to the extent of causing a general disturbance of public tranquilly affect the even tempo of life and public order is jeopardised because the repercussions of the act encompass large sections of the community and incite them to commit further violations of the law and order.
(2) the "subjective satisfaction" of the detaining authority as the basis for valid detention orders: The NSA gives executive officials the authority to issue detention orders "if satisfied that such an order is necessary with respect to any person”. This provision clearly enables preventative detention if and only if the detaining authority is persuaded that the detention is required to avoid risks to public order or national security. Furthermore, the "subjective satisfaction" of the detaining authority is a statutory need for the exercise of this power, according to the prevalent view in the courts. Although the courts "cannot substitute [their] own opinion for that of the detaining authority by applying an objective test to decide the necessity of detention for a specified purpose," the Supreme Court held in Anil Dey v. State of West Bengal that the "veil of subjective satisfaction of the detaining authority cannot be lifted by the courts with a view to appreciate its objective sufficiency.'
(3) the procedural rights guaranteed detainees: In preventative detention proceedings, the Indian Constitution stipulates a tangled system of procedural rights. Article 21 states that no one's personal liberty can be taken away unless they follow a "process provided by law." All persons arrested or detained must be (1) immediately informed of the basis for their detention; (2) allowed to consult and be represented by a lawyer; and (3) brought before a magistrate within twenty-four hours, according to Article 22. However, in circumstances of preventive detention, this progressive procedural rights framework does not apply. Article 22 (5) of the Constitution mandates that the detaining authority inform the detainee of the reasons for the custody order. As a result, the NSA mandates that the grounds of custody be disclosed to the detainee as soon as feasible, but no later than five days after the arrest. The Court concluded in Wasi Uddin Ahmed v. District Magistrate, Aligarh, that Article 22's requirement that the government "give" the detainee the chance to make a representation indicates that the detainee has the right to be informed of his or her rights under this article. The Supreme Court was requested to rule on the constitutionality of the NSA in the landmark case of A. K. Roy v. Union of India. The National Security Agency (NSA) has been called into question on a number of occasions. The NSA was accused of violating the Constitution by denying detainees their fundamental right to legal representation in sessions before the Advisory Board. Despite the fact that "review by the Advisory Board of the matters and information utilised against the detainee is the only opportunity afforded to him for a fair and impartial appraisal of his case, the Court decided that detainees do not have the right to be represented at these hearings.