Question

In light of frequent misuse of Preventive detention laws in India, discuss the protections provided against Preventive detention in the constitution?

Answer 1

Approach:

• Explain Preventive Detention
• With several examples discuss the misuse of Preventive detention laws
• Discuss constitutional provisions for Preventive detention

In common parlance, 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 laws in the country have come to be associated with frequent misuse. Such laws confer extraordinary discretionary powers on the executive to detain persons. In the absence of proper safeguards, preventive detention has been grossly misused, particularly against the Dalits and the minorities.

The several States have a law popularly known as the ‘Goondas Act’ aimed at preventing the dangerous activities of specified kinds of the offender.

Section 3 of NSA gives the Central Government the power to detain any person if the government is 'satisfied' that it is 'necessary' to do so with a view to preventing him from acting in any manner prejudicial to any one or more of the following interests of the State:

(i) Defence of the State
(ii) Relation of the State with a foreign power
(iii) Security of the State
(iv) Public order; and
(v) Maintenance of the supply of services essential to the community.
Since these concepts are not clearly defined and due to the possibility of different interpretations, the scope of abuse is admittedly colossal.

The Preventive Detention laws are arbitrary in nature to the extent that the provisions under Section 15 of the TADA Act stand in complete contravention to the rule of evidence laid down under Section 26 of the Indian Evidence Act, 1872. While Section 26 of the Evidence Act clearly states that Confession by accused while in custody of police is not to be proved against him, however, the provisions under Section 15 of TADA Act stipulates that certain confessions made to police officers can be taken into consideration as evidence and be proved against him.

In Kashmir, the Preventive Detention Laws have been blatantly misused and the arbitrary arrest and detention of those peacefully voicing dissent are continuing in Jammu and Kashmir, India, with the Public Security Act (PSA) increasingly being used to punish those who criticise the government.

Another law which is misused is the COFEPOSA, under which 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 recognise innocence even in such genuine cases.

CONSTITUTIONAL PROVISIONS FOR PREVENTIVE DETENTION

• At present, the provisions pertaining to preventive detention in the Indian Constitution are contained in Article 22 and in List I (Entry 9) and List III (Entry 3) of the Seventh Schedule.
• Part 3 of Article 22 provides that the safeguards and provisions presented in the first two parts of Article 22 are not to apply to people who are arrested under any preventive detention laws.
• The ground of detention should be communicated to the detenu. However the facts considered to be against the public interest need not be disclosed.
• The detenu should be afforded an opportunity to make a representation against the detention order.

The critics assert that the provision for preventive detention (Article 22) takes away the spirit and substance of the chapter on fundamental rights. It confers arbitrary powers on the State and negates individual liberty. It justifies the criticism that the Constitution of India deals more with the rights of the State against the individual than with the rights of the individual against the State. Notably, no democratic country in the world has made preventive detention as an integral part of their Constitutions as has been made in India.