Author: Sanjith Gurikar, a student at PES University
To the Point
In democratic governments, preventive detention is one of the most contentious practices. This is especially true in countries like India, where constitutional protections of liberty and due process are of the utmost importance. The fundamental concept behind preventive detention is that it enables the state to hold people not for previous criminal actions but for predicted behaviour that is considered as a danger to public order, national security, or economic stability. Preventive detention, however, is based on the subjective satisfaction of the executive, which may allow it to circumvent fundamental legal protections. Punitive detention, on the other hand, is based on a judgement of guilt via a fair trial.The National Security Act of 1980 (NSA) and the Unlawful Activities (Prevention) Act of 1967 (UAPA) are two pieces of legislation that provide support for preventive detention in India. Article 22(3)-(7) of the Constitution provides the constitutional authority for preventive detention. On the other hand, it presents significant obstacles to the right to life and personal liberty as outlined in Article 21, particularly in light of the wide interpretation that was provided in the case of Maneka Gandhi v. Union of India (1978). The purpose of this article is to investigate the legal framework of preventive detention in India, including its consistency with constitutional protections and its ramifications in light of international human rights responsibilities. The legality of preventive detention under Indian law is the subject of this article, which provides a critical analysis of the issue. It examines the development of judicial interpretation, beginning with A.K. Gopalan v. State of Madras (1950) and continuing through Maneka Gandhi (1978) and more recent decisions such as Anuradha Bhasin (2020), bringing to light the conflict that exists between the interests of the state in terms of security and the liberties of individuals. The analysis demonstrates that preventive detention, albeit being legally lawful, runs the potential of becoming a weapon of the executive overreach and arbitrary detention if it is not properly managed. Using international human rights frameworks such as the International Covenant on Civil and Political Rights (ICCPR), the paper makes the case for urgent changes to strike a balance between national security and basic rights.
Use of Legal Jargon
Executive directives that are used to implement preventive detention are often formalised via detention orders that are issued in accordance with legislation such as the National Security Act and the Uniform Administrative Procedure Act. There are exceptions to the guarantee of personal liberty that Article 21 provides, and those exceptions are carved out by the constitutional framework in Article 22(3), which allows for imprisonment without trial for a maximum of three months. On the other hand, Article 22(4) stipulates that any length of detention that extends beyond this time frame must be approved by an Advisory Board that is composed of judges. All legal proceedings, including preventive detention, are required to be just, fair, and reasonable in accordance with the “procedure established by law” in Article 21, which was reinterpreted by the Supreme Court in the case of Maneka Gandhi.
In addition, Section 3 of the National Security Act gives the District Magistrate or the State Government the authority to detain persons in order to prevent them from engaging in behaviour that might be detrimental to the public order or the national security. There is a maximum detention length of twelve months, as stipulated by Section 13 of the National Security Act. On account of the subjective character of this authority, which is often shielded from complete judicial assessment by the theory of non-justiciability of satisfaction, substantial concerns have been expressed over the potential for its abuse.
The Proof
In the case of A.K. Gopalan, the Supreme Court of the country narrowly read Article 21 and concluded that as long as detention was “established by law,” it fulfilled constitutional criteria, regardless of whether or not it was fair. This was the first time that the constitutional legitimacy of preventive detention was confirmed. The state was granted considerable discretion to hold persons without trial as a result of this ruling, which resulted in the establishment of an executive-centric strategy. Maneka Gandhi, on the other hand, brought about a revolutionary change in this understanding by arguing that “procedure established by law” must adhere to norms of rationality, fairness, and non-arbitrariness. This aligns with the concepts of natural justice and substantive due process. Although these advancements have taken place, rules regarding preventive detention continue to depend on criteria that are ambiguous and subjective. Under the National Security Agency (NSA), for example, detentions are often justified on the basis of private reports; yet, owing to public interest immunity, the prisoner may not have complete access to these findings. In the beginning, the UAPA was designed to target illegal organisations; but, it has now developed into a comprehensive statute against terrorism that permits imprisonment for up to 180 days prior to the filing of a charge sheet, and it often includes restricted bail options.
The idea that courts should not substitute their satisfaction for that of the detaining authority is a constraint on the judicial review of preventive detention. This principle is in place unless there is clear evidence of procedural errors or malicious intent. This was emphasised once again in the case of State of Maharashtra v. Bhaurao Punjabrao Gawande (2008), in which the Supreme Court confirmed that substantive reasons for detention are, for the most part, not subject to judicial review. Article 9 of the International Covenant on Civil and Political Rights (ICCPR), to which India is a member, places an emphasis on the right to liberty and security of person and demands that detentions be subjected to speedy judicial review. India, on the other hand, continues to have reservations about Article 9, notably with regard to matters of national security and public order. This allows for the ongoing use of preventive detention despite condemnation from the international community.
Case Laws
A.K. Gopalan vs the State of Madras (1950): By broadly reading Article 21 to imply any “procedure established by law,” regardless of whether or not it is fair, the Supreme Court maintained the validity of the Preventive Detention Act, which was passed in 1950.
Maneka Gandhi vs the Union of India (1978): According to a reinterpretation of Article 21, the method must be “just, fair, and reasonable.” In light of this ruling, a trend towards substantive due process and a more comprehensive interpretation of basic rights was noted.
ADM Jabalpur v. Shivkant Shukla (1976): An infamous decision was made in this case during the Emergency period, which said that no individual had the right to petition the court for habeas corpus under Article 21 if their right was suspended. Eventually, this verdict was discredited and overturned by the court.
Bhaurao Punjabrao Gawande vs State of Maharashtra (2008): A reaffirmation of the restricted scope of judicial review over preventive detention was made, with an emphasis placed on the fact that the subjective satisfaction of the detaining authority could not be readily questioned.
PUCL v. Union of India (1997): Placed great emphasis on the need of procedural protections and openness, particularly in cases pertaining to surveillance and imprisonment that harm civil freedoms.
In re Anuradha Bhasin’s (2020): Despite the fact that it was primarily concerned with internet shutdowns, it emphasised the criteria of proportionality, need, and court monitoring, which are concepts that are equally relevant to preventive detention.
Alka Subhash Gadia vs the Union of India (1992): It was decided that judicial review of preventive detention is only allowed in situations when there was a breach of procedure, where there was a lack of good faith, or when the reasons for the custody were either irrelevant or non-existent.
Conclusion
The constitutional structure of India places preventive detention in a position that is fraught with danger. Furthermore, because to the fact that it is subjective and has limited judicial scrutiny, it is open to abuse, despite the fact that its need in extraordinary situations cannot be denied. It is still difficult to strike a balance between the protection of the state and the rights of individuals, particularly in light of the developing body of law that has emerged in the wake of the Maneka Gandhi case, which mandates that all legal proceedings be fair and reasonable. It is necessary that extensive changes be implemented in order to bring preventive detention legislation into alignment with constitutional principles and international norms.
In the end, protecting individual liberties in a democratic society requires maintaining a continual vigilance against the act of using executive authority in an arbitrary manner, even when it is done under the pretence of protecting national security.
FAQS
1: What exactly is preventive detention?
It is the right of the state to imprison persons without trial, not for offences that have been committed in the past, but rather to prevent predicted risks to public order, security, or economic stability. This kind of incarceration is known as preventive detention.
2: What are the legal justifications for the use of preventive detention under Indian law?
An exemption to the right to liberty, as outlined in Article 21, is provided under Article 22(3)-(7) of the Indian Constitution. This exception allows for preventive detention to be carried out under certain situations and for a certain amount of time.
3: What are the most important protections against misuse?
Among the safeguards are:
Article 22(5) guarantees the right to be informed of the reasons for detention.
Possession of the right to submit one’s case in front of an advisory board.
For detentions that last longer than three months, consent from the advisory board is always required.
4: How do the laws of India compare to the standards that are used internationally?
The mechanism for preventive detention in India often fails to meet the criteria set out by the International Covenant on Civil and Political Rights (ICCPR), particularly with respect to the provision of quick judicial review and protection against arbitrary imprisonment.
5: Why is preventive detention deemed to have the potential to violate the Constitution?
Due to the fact that it permits detention on the basis of subjective satisfaction and provides only minimal procedural protections, it runs the danger of infringing the right to life and personal liberty as outlined in Article 21, as well as the principles related to natural justice.
