Tracing the evolution of preventive detention laws in India as well as the jurisprudence of safeguards against their misuse developed by the Supreme Court, JASIR AFTAB writes about how existing legal mechanisms are impotent to prevent their misuse by the executive branch of the State, and argues that preventive detention laws must be reformed, if not struck off altogether.
IN the contemporary liberal-democratic era, where the right to personal liberty is near-universally recognised as of utmost importance and courts around the world readily interfere in cases concerning its infringement, preventive detention laws need to be examined with skepticism. They are a tool for detaining individuals and curtailing their right to liberty, not because by reason of being convicted or under-trial for an offence, but for the sole reason of an apprehension of them committing an act prejudicial to law and order.
The governing theory behind such laws is retroactive prevention, as opposed to the post-facto punitive nature of laws that provide for punishment after the incident of conviction for an offence. The relevance and need for such laws have always been debatable, with one side viewing them as a necessary evil in modern society, and the other labelling them as a tool of executive tyranny meant solely for securing the interests of certain vote-banks.
Preventive Detention Laws in India
In the pre-independence era, the British government enacted several laws providing for preventive detention, such as the Defence of the Realm Act, 1914 and the Emergency Powers (Defence) Act, 1939 in the backdrop of the two World Wars. But these were legislations introduced during times of emergency and external threat, and hence were allowed to expire when no such situation existed.
Later on, these emergency legislations were replaced by regular legislation, such as the Anarchical and Revolutionary Crimes Act, 1919 (better known as the ‘Rowlatt Act’) and the Bengal Criminal Law Amendment Act, 1930, both of which were notoriously unpopular.
Shortly after gaining independence, India got its first preventive detention law, the Preventive Detention Act, 1950 (PDA). PDA was initially effective for one year, but was allowed to continue till 1969. Its validity was upheld by the Supreme Court in the famous case of A.K Gopalan v. State of Madaras, AIR 1950 SC 27, which is well known among jurists as India’s first fundamental rights case.
Since then, India has periodically enacted various such laws. One of the most prominent among them is the Maintenance of Internal Security Act, 1971 (MISA). MISA is infamous for its use during the Emergency period in the 1970s to arrest opposition party leaders. MISA remained effective till 1978.
Two years later, the National Security Act, 1980 (NSA) was enacted which continues to be effective to date. Therefore, barring the two short periods of 1970-71 and 1978-80, India has always at least one preventive detention law in place. The principle of preventive detention, in other words, has been permanently embedded into the Indian legal system.
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It is a matter of irony that the makers of our Constitution, who themselves were once victims of the tyranny of preventive detention laws, still chose to grant powers to governments under the Constitution to enact such laws.
Under Entry 9 of List I (better known as the ‘Union List’), Parliament has the exclusive power to enact a law for preventive detention for the reasons connected with defence, foreign affairs, or security of India. On the other hand, under Entry 3 of List III (better known as the ‘Concurrent List’), both Parliament and State Legislature have powers to enact such laws for the reasons related to maintenance of public order or maintenance of supplies or services essential to the community.
While clauses (1) and (2) of Article 22 of the Constitution of India provide that the State cannot deny an arrested person his right to consult and be represented by a legal practitioner of his choice, clause (3) acts as a sort of proviso to them and provides that nothing contained in first two clauses shall apply to any person arrested or detained under any preventive detention law.
Some safeguards have also been provided in further clauses: Clause (4) prescribes the maximum period of such detention to the extent of 3 months, and provides for the setting up of an advisory board to review the need of such detention past the maximum permissible limit of 3 months. Clause 5 provides communication of grounds of such detention “as soon as possible” to the detainee, and affording them a chance to make a representation against such order of detention.
Evolution of jurisprudence regarding safeguards available to a detainee
Due to the grant of explicit powers to the Parliament and state legislatures to enact preventive detention laws, the duty to protect personal liberty against any arbitrary use of such powers had always been on the shoulders of the judiciary. As the custodian of the fundamental rights of citizens, the judiciary has interpreted the provisions of the Constitution as well as the laws of the time in a strict manner so that no fundamental right of an individual is jeopardised by the political will of the State.
In Abdul Karim v. State of West Bengal, (1969) 1 SCC 433, the Supreme Court held that the right to be informed about the ground of one’s arrest as soon as possible and to make a representation against such order of detention, under Article 22(5), is a valuable constitutional right and not a mere formality.
In Bhut Nath Mete v. State of West Bengal, (1974) 1 SCC 645, the Supreme Court held that “…detention powers cannot be used to subvert, supplant or to substitute punitive law of Penal Code … merely because it is irksome to undertake the inconvenience of proving guilt in a court“. Hence, if the facts of the case are so clear that the ordinary law can take care of the situation, there is no need to revert to the route of preventive detention.
In Khudiram v. State of West Bengal, AIR 1975 SC 510, the apex court held it is not required for courts to inquire into the adequacy or sufficiency of grounds upon which a preventive detention order was passed. They must restrict themselves to examining whether, on the grounds of detention disclosed to the detainee, a reasonable person could reach the same conclusion as that of the detaining authority.
The Supreme Court has held that detainees must be informed of the grounds for their detention expediently without any unnecessary delay. It has been active to take upon any lax attitude of State machinery in this regard, and have quashed orders of detention if there was an unexplainable delay in supplying grounds forming the basis of subjective satisfaction of the detaining authority in passing the order of preventive detention, as it did in the cases of Pritam Nath Hoon v. Union of India, AIR 1981 SC 9 and Mangalbhai Motiram v. State of Maharashtra, (1980) 4 SCC 470.
Regarding the right to be represented by a legal practitioner, due to Article 22(3), the State has the power to deny that right to a preventive detainee. Additionally, there are express provisions, such as Section 11(4) in the NSA and Section 8(e) in the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 which prevent the detainee from appearing before the advisory board constituted under Article 22 by way of a legal practitioner. The Supreme Court tried to even out the playing field by holding in A.K Roy v. Union of India, (1982) 1 SCC 27, that, though denial of the right to legal representation is not unconstitutional, at the same time the State is not obligated to that right and cannot put up lawyers before advisory boards to argue its case unless it provides the same right to detainees. Failure to do so would be a violation of Article 14. Additionally, the court allowed the detainee to, in this regard, take the help of a friend who in truth and substance is not a legal practitioner.
In Ramesh Yadav v. District Magistrate, Etah, (1985) 4 SCC 232, the Supreme Court ruled that an order of preventive detention could not ordinarily be made only on the ground that the accused is otherwise likely to be released on bail.
In Hem Lall Bhandari v. State of Sikkim, (1987) 2 SCC 9, the Supreme Court, laying out the mandate of police officers under preventive detention laws in strict terms, held that:
“It is not permissible, in matters relating to the personal liberty and freedom of a citizen, to take either a liberal or a generous view of the lapses on the part of the officers. In matters where the liberty of the citizens is involved, it is necessary for the officers to act with utmost expedition and in strict compliance with the mandatory provisions of law. Expeditious action is insisted upon as a safeguard against manipulation.”
In G Sadanandan v. State of Kerala, AIR 1996 SC 1925, it was ruled by the apex court that a detention order can be quashed if it is shown to be mala fide or based on a. casual approach adopted by the appropriate authority.
In Sophia Gulam Mohd. Bhan v. State of Maharashtra, (1999) 6 SCC 593, the Supreme Court held that a detainee can make a representation against the order of detention only when the grounds upon which such order is made are communicated to the detainee, the material on which the grounds are based are also disclosed, and copies of relevant documents are supplied. In the instant case, due to the non-supply of relevant material upon which such detention order was made, the order of detention was quashed by the court.
In Subhash Popatlal Dave v. Union of India, (2014) 1 SCC 280, the Supreme Court counselled the State that such restrictive powers under preventive detention laws that restrict individual freedoms should be exercised with extra caution and not as a matter of course. They must not be exercised as an alternative to ordinary laws, it warned.
Is Preventive Detention a Tool for Executive Tyranny?
Even though the courts have always stepped up against any infringement of the highly cherished fundamental rights of citizens, the fact is that the high backlog of pending cases that are currently overburdening courts results in it taking several months to get writ petitions against preventive detention orders heard. Hence, it is the process that becomes the persecution.
Preventive detention laws are designed to be highly administratively steered and restrict the scope of judicial interference. This, at times, places unfettered and largely unchecked power in the hands of the executive without any liability, allowing the potential of grave misuse of such powers. The delay it usually takes to apply for, let alone get judicial relief, works to the advantage of the executive. Even in cases where such laws are found to have been misused, the ultimate purpose of keeping the person behind bars for a long period is ultimately served.
The right to legal consultation and representation should not only be seen through a constitutional or statutory prism but rather as a right that flows from the right to enjoy personal liberty, which is a basic human right. In the complicated world of law, it is impossible for a layperson unacquainted with legal knowledge and no prior experience of such a situation to understand the reasons for which he is being kept in detention. It is entirely unreasonable to expect such a person to put up a competent defence before an advisory panel consisting of lawyers or retired judges.
Additionally, the eligibility criteria set by the Constitution for the members of the advisory board under Article 22 gives the State the power to choose to make it a purely executive committee; such a committee cannot be regarded as impartial or free from political influence. In fact, in most cases, these advisory panels extend the detention period as a matter of routine while in the same cases, High courts have gone on to quash the detention orders.
According to a recent investigative report by Indian Express, out of 120 Habeas Corpus petitions challenging detention orders under NSA between January 2018 and December 2020, the Allahabad High Court had quashed 94 detention orders. In other words, 78.33% of all detention orders under NSA in a two-year period were found to be incorrect. This reveals that the Constitutional safeguards provided to challenge illegal detention are inefficient, and in reality, the detainee is left to move the courts to get relief in such matters.
As previously discussed, courts have repeatedly held that statutory powers curbing the personal liberty of an individual should be used diligently, with great care and not as a matter of routine. Unfortunately, this advice seems to be but an ornamental decoration in the museum of judicial jurisprudence.
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There are regular reports of the NSA and other preventive detentions laws being misused in a variety of ways. They could be either invoked to create the optics of a strong State, for silencing dissent against the State or sometimes even for personal revenge by those yielding political power.
The situation has become especially grim in the state of Uttar Pradesh (UP). As per a statement by Awanish Kumar, Additional Secretary (Home), UP, last year till August 19, the U.P. police has invoked NSA against 139 people in total in the past year, out of which 76 were for cow slaughter and 13 against people who allegedly participated in anti-Citizenship Amendment Act (CAA) protests.
According to a National Herald report from 2018, the use of NSA against Muslims and Dalits had become such a regular incident in Muzaffarnagar, a city in west UP, that even a minor scuffle between children of two separate communities ended up with the members of the minority community being charged under NSA.
One of the most infamous recent examples of the routine misuse of such powers is the detention of Dr. Kafeel Khan under NSA last year for participating in the protests against the CAA, following the dramatic events of him being picked up by the UP Police from Mumbai and kept in jail despite getting a bail order, only to then be served with the detention order after three days. The detention order was ultimately quashed by the Allahabad High court but it still took seven months to conclude the proceedings before the court, during which time his family had to move the Supreme Court to get the proceedings before the High Court expedited.
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The excruciatingly long time taken by our legal system to dispose of such proceedings, combined with the non-availability of any redressal mechanism other than the filing of writ petitions for quashing of preventive detention orders ensures the continuous victimisation of the detainee. Thus, the ultimate purpose of political or personal victimisation of the detainee is served.
What lies ahead?
The continued application of such a world is an affront to the cherished ideals of personal liberty and freedom of expression. These laws give wide power to the government to curb the freedom of citizens without reasonable restrictions. Any law which provides for such powers should not have a place in a modern democratic society that India must aspire to be.
Even if the idea of these laws being necessary for the prevention of any crime is to be accepted, there need to be more safeguards available to the detainee. Those safeguards must not be just theoretical but should act as effective barriers against any misuse.
The detainee should not be denied the right to consult and be represented by a lawyer of his choice at any stage to ensure that the defence of the detainee is effectively put before the advisory board to aid it in making an informed decision.
The advisory board should be of a judicial nature with only sitting judges of High Courts eligible to be its members. This would ensure the application of a judicial mind while deciding the validity of detention orders, as well as the speedy disposal of such cases.
Also, the detention order should be made effective only after approval by such advisory boards within a prescribed time frame so that the detainee is not forced to be in detention for too long just by executive order.
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These changes are necessary in the present time to make these laws compatible with our Constitutional ethos, and it is the responsibility of Parliament to ensure that necessary amendments are made to the laws in order to protect the liberty of the citizens in a free society. We cannot continue to rely on the judiciary to provide piece-meal relief to the increasing number of detainees being harassed under these laws.
The article was originally published in The Leaflet.
(Jasir Aftab is a student at Campus Law Centre, Faculty of Law, University of Delhi. The views expressed are personal.)