Author: Kunal Pratap Singh, Lloyd Law College
To the Point
Preventive Detention Act means prevention of future act that can be unlawful and opposite to the public policy (law and order). Prevention of a person without any trial or conviction by a court is known as preventive detention. Preventive detention is when a person is held in police custody only on the basis of a suspicion that they would conduct a criminal act or cause harm to society. In simple word, the detention occurs without any trial in the court. Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the future.
Abstract
This article aim is to remove the dust through critical analysis of this charter and its jurisdiction, and known how it’s emerging root effecting India statute through positive and negative way, preparatory to unlawful Activities (prevention) Act (UAPA): cited as ACT NO. 37 OF 1967. Actually, it was enacted in 1967. It is also seen as preventive law, it barred terrorist activities against the nation. this act recently amended in 2019 and includes “individual” in the category of terrorist. Before this amendment only “organization” was designated in the category of terrorism.
Legal Jargons
This act is amended many times, followed by 2008, 2004, 1986, 1972 and 1969. Amendments allow the government to designate individuals as terrorists and list them in Schedule IV of the Act. The central government have full jurisdiction under this Act (it can detain up to 180 days) without any charge. Bail is difficult to obtain if the court finds a prima facie case against the accused. Government can also designate any “individual” or “organization” terrorist under the Act, if it commits or participates or prepare terrorism or its activities. There are total 70 sections, some important are as follows: Section 10: sets penalty for being member of an unlawful association or organization. Section 15: power and authority of the government to designate any individual as a terrorist. Section 2 Act (UAPA) and the former Sedition Act: punishment for the member of terrorist gang or organization. Section 22: punishment for threatening witness.
There is a significant difference in the legal frameworks of the Unlawful Activities (Prevention) (Section 124A of the IPC, which has been stayed by the Supreme Court). The UAPA is a specialized anti-terror law that includes stringent procedural provisions and enhanced detention powers, while the Sedition Act was a general criminal law provision dealing with incitement of disaffection against the government.
NSA (National Security Act) – In Indian constitution, Article- 22 deals with the arrest and detention of the individual. it has two parts—the first part deals with the cases of ordinary law and the second part deals with the cases of preventive detention law. Actually, this article also distinguishes punitive detention (after an offence) and preventive detention (future offence). Most of the detention in India were punitive not preventive, it is because preventive detention have some limitation like “public order” or “national security” or “foreign affairs”.
The Proof
The NSA (national security act) is preventive detention act meaning it barred from future offence. It is an act of parliament promulgated on 23 September 1980. The maximum period of the detention under this act is for 12 months. section-13 of the NSA deals with it. The act contains 18 Section, and extends to the whole of India. The act was extended in 2019 to the Jammu and Kashmir, after repeal of article- 370. The act deals with the period of the detention, authority of the government, communication of detention, ground to the detenue and other. The act also gives the power to detain a foreigner meaning it is not limited to the citizens. It is called the most stringent preventive detention laws. In NSA detention order must be passed by the district magistrate or commissioner of police with duly considering the material and after subjective satisfaction on the circumstances, and it also reported to the government along with ground.
In NSA (preventive act) the principle of natural justice is not absent but curtailed. Without any information of arrest, police can detain accused upto 5 days and in special circumstances it can be extended upto 10 days. Advisory board (judges of the high court) review the detention of the accused within in a prescribed time (3 week) and if he find that there is no sufficient cause then the detainee will be released under this act. Any person detained under the NSA can challenge the detention order before the appropriate High Court (under article 226) through a habeas corpus petition. Habeas corpus means “have the body” of the person before the court. The writ petition can be filled by the detained person or their family members or friends. The main object of habeas corpus is to bring transparency and accountability towards the detention. The apex court said in 1959 in the case of Ranjit Singh vs The State of Punjab that habeas corpus writ is for the purpose “to make them expeditious”.
The High Court examines the legality of the detention and can release the person if the detention is found to be unlawful or not in accordance with the provisions of the NSA. It’s important to note that preventive detention under the NSA is a serious measure that curtails individual freedoms and must be used sparingly and in accordance with the law. the detention process involves various safeguards to protect the rights of the detained person, including the right to legal representation and judicial review.
Under this act: Section 3- Gives the central and state government the power to detain a person, preventing them from future offence. Section 8- Ground of detention must be communicated to the detenue within 5 days (extendable to 15 days). Section 9- Deals about the constitution of advisory board (central or state government constitute one or more advisory board, whenever necessary.) Section 10- Provide the detention order to the advisory board within 3 weeks of detention for their view.
Case Laws
AKHIL GOGOI VS UOI: Akhil Gogoi, the leader of krishak mukti sangram samiti was arrested in September, 2017, under the charges of sedition and after 11 days he was also booked in the case of preventive detention NSA, 1980. Actually, he was addressing the rally that was also held by his organization, he said in the rally that “if Hindu immigrants from Bangladesh were forced upon Assam” the resident of Assam would take up arms (meaning violence). At the last he approached to the High Court under the article-226 of COI that deals with the writ (special jurisdiction of HC and SC under article 32). He filed under habeas corpus (that were mainly filed in the case of preventive detention). Ruling: The Gauhati High court released him and termed his detention illegal under NSA. (matter is ongoing)
KAFEEL KHAN VS STATE OF UP: Dr. Kafeel khan, lecturer at department of pediatrics in BRD Medical college, at Gorakhpur, Uttar Pradesh. He was arrested in 13 December,2019 under NSA,1980. He was arrested in relation to a speech that were made by him at Aligarh Muslim University, it vitiates the peaceful atmosphere and disturb the communal harmony. He also approached to the Allahabad High Court against his detention. Thereafter, on 1 september, 2020 he was released by the HC and all charges against him were set aside.
Pro-khalistani leader and head of “Waris Punjab de” Amrit pal singh and his 9 associates has been booked under NSA, 1980. He was arrested on the offence of creating disharmony in society and in separatist activity, he was also accused in many heinous criminal cases. He was arrested in April, 2023. His extention of detention is approved by the Punjab government until April,2026.
Climate Activist sonam wangchuk case: demanding statehood, inclusion of 6th schedule of Ladakh (currently U&T) and separate Loksabha seat for Leh & Kargil, the protest turned into violent (4 deaths). The government detain and arrested him under the preventive detention law (NSA) suspecting the public disorder. He had been indulging in activites related to the security of state, maintenance of public order, it was mentioned in the detention order. Sonam wangchuk wife Gitanjali Angmo (petitioner) in writ of habeas corpus (challenging detention). Actually, he was detained on 26 september, 2025 and shifted to central jail, jodhpur. This case and its writ under proceeding in Supreme Court (invoking Article-32). The matter is on-going.
The Supreme court in 2012, quash detention under NSA of man (he was accused of Black marketing kerosene). SC ruled that the ground for detention under NSA is unjustified. According, to the interpretation of this case, it can be justified that government misuses the act. Another case was also In July 2022, while supreme court setting aside the preventive detention order issued for a chain-snatcher in Telangana, observed that these powers accorded to the State were “exceptional” and that since they affect the liberty of an individual, they should be used sparingly.
Conclusion
In pursuant to the data of (SCC online): the Allahabad HC took 170 days to decide the habeas corpus petition of the detenu. The average days is 161 days. The average detention period of an a detenu is 314 days and average is 310 days by Allahabad HC. The Apex court takes approx. 950 days to dispose the cases (this finding is of 2020). – These data were taken from SCC online.
In most of the cases the court release the detenu due to lack of evidence. While the burden is on the detenu, courts have also held that the detaining authority must still prove its actions are in conformity with the procedure established by law. However, the overall burden to prove the detention is unlawful rests with the detenu. if the evidence present before the court is contradictory or irrelevant, it can directly lead to the acquittal of detenu. All preventive detention acts are similar in nature. Minor differences are related with the detention period, jurisdiction of the act and power or authority of the government.
FAQS
1. We can compare preventive detention under Article 22 of the Indian Constitution with punitive detention, the former being considered exceptional owing to the undermining of the right to liberty.
2. The UAPA Act 2019 thus altered the Government of India’s perception of anti-terror enforcement and its definition of terrorism at the expense of an individual’s civil liberties.
3. The Advisory Board plays a very important role in reviewing the detention of a person under the National Security Act of 1980 and acts as a check against arbitrary detention.
4. A study of various cases involving individuals like Dr. Kafeel Khan and Akhil Gogoi points to a trend where the authorities are more likely to impose preventive detention under laws rather than preventive detention under laws, owing to apprehensions that these may be misused to detain citizens at random.
5. The fact that habeas corpus petitions filed in accordance with Article 226 can take several months to resolve is indicative of the difficulties of implementing preventive detention laws in India.
