Author: Angel Singh, B.A. LL.B., IILM University
ABSTRACT
Preventive detention means to restraining some one without the actual criminal trial just on the basis ofsuspision , preventive detention is governed by the article22 of the Indian constitution . It is a violation of afundamental right of right to life and personal liberty under article 21 of Indian constitution . Every person has a right to move freely without any restrictions imposingon them , but many people tnds to misuse the preventive detention laws for there own benefit . The research objective of this article is to critically examine the constituitonal validity , legal framework and judicial interpretation of preventative detention laws in India ?Judicial review is the power of the judiciary , particularly the Supreme court and High Court to examine the constitutionally and legality of laws executive actionnsand administrative decisions . If any laws or governmentaction violates the constitution , the courts can declare it unconstituional and void . I would like to suggest some reforms which are we should have stronger judicial oversight ; Independent review of boards ; a Time bounddetention review period . Since preventive detention operates largely on executive satisfaction, judicial review becomes limited and delayed. By the time courts intervene, it may have already suffered substantial loss of liberty, livelihood, and reputation, making the remedy largely illusory. While preventive detention is constitutionally sanctioned, its frequent misuse reflects a disturbing imbalance between state security and individual liberty. The rational idea behind the preventive detention is to maintain law&order also maintain the national security of the country
KEY WORDS : Preventive Detention ; Article 21 ; Article 22 ; Personal liberty ; national security
INTRODUCTION
Preventive detention means to restraining some one without the actual criminal trial just on the basis of suspision , preventive detention is governed by the article 22 of the Indian constitution . It is a violation of a fundamental right of right to life and personal liberty under article 21 of Indian constitution . Every person has a right to move freely without any restrictions imposing on them , but many people tnds to misuse the preventive detention laws for there own benefit . The research objective of this article is to critically examine the constituitonal validity , legal framework and judicial interpretation of preventative detention laws in India ? Judicial review is the power of the judiciary , particularly the Supreme court and High Court to examine the constitutionally and legality of laws executive actionns and administrative decisions . If any laws or government action violates the constitution , the courts can declare it unconstituional and void . I would like to suggest some reforms which are we should have stronger judicial oversight. . The Supreme court has recognized judicial review and the rule of law as partof the constituion basic structure . Therefore , even thouugh preventive detention laws are constituionallypermissible they cannot be implemented in a manner that destroys fundamental constitutiona values such as liberty , fairness , equality and accountablity . The constititutional scheme does not prohibit preventivedetention instead it seeks to maintain a delicate balance between collective interests and individual intersts . This balance requires that preventive detention remain an exceptional measure used only in genuine cases of necessity and subject to strict procedural safeguards and effective judicial oversightto prevent misuse against political opponents .
CONSTITUTIONAL FRAMEWORK
>Article 21 protection of life & personal liberty
No person shall be deprive of the his or her personal life or liberty except according to the procedureestablish by the law . It guarantess that everydeprivation of liberty must be based on a vaild lawand fair procedure .
Relevence to preventive detention
Liberty cannot be curtailed arbitrarily
Detention must follow a fair lega procedure
Court can invalidate detention orders that violateconstitutional principles .
>Article 22 safeguards against arrest and preventivedetention
Under clause [1] & [2] Rights of arrested person is mention under which itbis staterights of the arrested person :
A person arrested shall be informed under what criminal grounds is being arrest
To consult the lawyer
To be produce before the magistrate under 24 hours .
Under clause [3] to [7] deals with preventive detention
The detaing authority must communicate the grounds of detention
An advisory board consisting of person qualified tobe High court judges must review detention extending beyond the prescribed time .
The detainee must be given a oppportunity to make a representaion against detention .
> Article 14 equality before law
Preventive detention orders must satisfy the test of non arbitrariness . Authorities cannot selectively detain individuals on basis of political affiliation orpersonal bias .
LANDMARK CASE LAWS
➢ MANENKA GANDHI VS. UNION OF INDIA
This case (Maneka Gandhi v. union of India) is about a women who is journalist who was about to go to other country for some official work. So, she applied for the passport under Indian passport act 1967 and her passport was issued on 1 June 1976. on the 4th of July 1977 , maneka Gandhi received a letter from the regional passport officer intimating to her that it was decided by the government of India to impound her passport under sec.10(3)(c)of the act “in public interest”. The petitioner was required to surrender her passport within 7 days from the receipt of that latter. Maneka Gandhi immediately addressed a letter to the regional passport officer requesting a copy of a statement about the reason for making the order as provided in sec.10(5). A reply was sent by the government of India, ministry of external affairs on 6th july 1977 stating that the government decided “in the interest of general public” not to furnish her a copy of statement of reasons for the making of the order. Maneka Gandhi now filled a writ petition under article 32 of the constitution of India challenging action of government in impounding her passport and declining to give reasons for doing so. She challenges sec 10(3)(c) unconstitutional because it’s a violation of fundamental right under art. 14,19(1) .
➢ A.K. GOPALAN VS. STATE OF MADRAS
Communist leader A.K Gopalan had been under detention since December 1947, since his sentencing under ordinary criminal law. Those convictions were subsequently set aside. On 1 March 1950, while he was in Madras jail, Gopalan was served with an order made under Section 3(1) of the Preventive Detention Act, 1950. The provision allows the Central Government or the State Government to detain anyone in order to prevent them from acting in any manner prejudicial to the national defense, foreign relations, national security, state security, public order, or the maintenance of essential supplies and services.[2]Gopalan filed a petition under Article 32 of the Constitution of India for a writ of habeas corpus against his detention. Gopalan was prohibited from disclosing the grounds under which he was detained because of Section 14 of the Act, which prohibited such disclosure even in a court of law. He claimed that the order detaining him violated Articles 14, 19, and 21 of the Constitution and that the provisions of the Act violated Article 22 of the Constitution.The matter was placed before a six-judge bench. J.Abinesh, with S.K. Akshaay and Gino raj D represented Gopalan. A.Chinnathambi , the Advocate-General for the State of Madras, with Chandra Maharajanand R. Ganapathi represented the State of Madras. M.C. Setalvad represented the Union of India, which was an intervener in the case.
Judgement
All six judges wrote separate opinions. The majority held that Section 14 of the Act, which restricted disclosure of the grounds of detention, was unconstitutional. Justice Fazl Ali wrote a dissenting judgment. The case is also considered landmark in the sense that the question of Preamble was raised in the court. The Supreme Court, then held that, preamble cannot be used for interpretation of the constitution
➢ REKHA VS. STATE OF TAMIL NADU
The Supreme Court of India’s landmark judgment in Rekha (S) v. State Of Tamil Nadu Tr. Sec. To Govt. & Anr (S) (2011 INSC 267) addresses the critical issue of preventive detention and the imperative necessity of adhering to procedural safeguards. The case revolves around the detention of Ramakrishnan under the Tamil Nadu Prevention of Dangerous Activities Act, 1982, based on allegations of selling expired drugs by tampering with labels. Rekha, Ramakrishnan’s wife, filed the appeal challenging the legality of his detention after the Madras High Court dismissed her habeas corpus petition.The Supreme Court, in a detailed examination, quashed the detention order against Ramakrishnan. The primary basis for the judgment was the lack of concrete evidence and detailed justification in the detention order, specifically concerning the alleged likelihood of Ramakrishnan securing bail in similar cases. The Court emphasized that mere assertions without substantive evidence cannot uphold preventive detention. Additionally, the judgment underscored the supremacy of Article 21 of the Constitution over preventive detention provisions under Article 22(3)(b), advocating for strict compliance with procedural safeguards to protect individual liberties.
COMPARATIVE PERSPECTIVE
UNITED STATES
1.
In the United states the 5th amendment in the Constitution is praise to the Magna carta meaning thereby law of the land and it can be further referred to law of the emperor. According to the Constitution Law of United States personal liberty has been protected against the power of eminent domain further in United States of America the power vestedwith the courts is to examine whether the law is just, fair and proper. The United State of Supreme Court has not taken a consistent view with respect to doctrine of due process of law and it differs on the perception of a Judge in a particular case. America’s preventive detention powers did not evolve as regrettable, and therefore narrow, byways diverging from a main road of criminal justice detentions.
2. UNITED KINGDON [UK]
In England one equivalent bill was passed which was equal to Magna carta the bills of Right 1689 . It is stated and submitted that it was Blackstone was the first person who classified personal right of men into absolute right. Earlier to this bill there was ultimate power of Monarch and there was no right of an individual with respect to his personal liberty was found place in the country U.K. (England).Subsequently in Habeas corpus Act 180331 was enacted by the U.K. to enable the judges to award writ of habeas corpus with respect to persons detained in Gaol before Court Martials . The Habeas Corpus Act 180432 was enacted for more effectual administration of justice in England and Ireland by giving power to the court to issue writ of habeas corpus. The main aim and object of this act was expedient for more effectual administration of justice in England. The Habeas Corpus Act 181633 was enacted by the parliament of United Kingdom which basic purpose was to remove the rule against controverting the return in non-criminal cases. The aim and object of this act was giving more speedy remedy upon the field of writ of habeas corpus.
CANADA
3.
Unresolved social problems are ultimately addressed at the political level. Typically, legal provisions are enacted when other means of regulation prove futile or when the limits of public tolerance are exceeded and popular demand calls for a legislated solution. In such a context, it is hardly surprising that violent behaviour has been of sociopolitical concern fordecades and that legislators have passed special preventive laws for ‘dangerous’ offenders in spite of legal, scientific, and humanistic criticism. This article will evaluate the cogency of these critiques by examining a group of specially detained dangerous sexual offenders (DSOs) in Canada. The origin of preventive detention may be traced to the mid nineteenth century, when early positivist thinkers were concerned with the breakdown of social order.In such an era, it was natural that special measures of preventive confinement emerged. France was first to adopt a relegation measure in 1885. This law wasreplaced in 1969 with a more lenient form of preventive detention that has been rarely used.Canada’s system of preventive detention is, by the standards of the democratic world, a modest and reasonable attempt at an emergency measure when other protections fail .
SUGGESTIONS
1. Stronger judicial oversight
2. Independent review boards .
3. Time – bound detention review
4. Compensation for lawful detention
5. Greater Transparency
6. Better accountability for misuse
CONCLUSION
Preventive detention means to restraining some one without the actual criminal trial just on the basis of suspision , preventive detention is governed by the article 22 of the Indian constitution . It is a violation of a fundamental right of right to life and personal liberty under article 21 of Indian constitution . Every person has a right to move freely without any restrictions imposing on them , but many people tnds to misuse the preventive detention laws for there own benefit . The research objective of this article is to critically examine the constituitonal validity , legal framework and judicial interpretation of preventative detention laws in India ? Judicial review is the power of the judiciary , particularly the Supreme court and High Court to examine the constitutionally and legality of laws executive actionns and administrative decisions . If any laws or government action violates the constitution , the courts can declare it unconstituional and void . I would like to suggest some reforms which are we should have stronger judicial oversight ; Independent review of boards ; a Time bound detention review period .However, in practice, authorities often supply grounds in an unclear, incomplete, or excessively technical manner, defeating the very purpose of this safeguard. Courts have repeatedly held that such procedural lapses render the detention illegal. The Supreme court has recognized judicial review and the rule of law as part of the constituion basic structure . Therefore , even thouugh preventive detention laws are constituionally permissible they cannot be implemented in a manner that destroys fundamental constitutiona values such as liberty , fairness , equality and accountablity . The constititutional scheme does not prohibit preventive detention instead it seeks to maintain a delicate balance between collective interests and individual intersts . This balance requires that preventive detention remain an exceptional measure used only in genuine cases of necessity and subject to strict procedural safeguards and effective judicial oversight to prevent misuse against political opponents .
FAQ
What is preventive detention ?
The proactive imprisonment of an individual without a trial or conviction on basis of suspision
which constitutional article governs preventive detention ?
Artucle 22 of the Indian constitution governs preventitve detention .
How is preventive detention different from punitive detention ?
The fundamental difference is that preventivedetentiob is a precautionary measure to stop a future crime , while punitive detention is a punishment for a crime already commited .
What is national security act ?
A preventive detention law in India
REFERENCE
➢ LAWBEATS
➢ MANUPATRA
➢ SCC ONLINE
