Misuse of Preventive Detention


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Even in the absence of any alleged wrongdoing, Indian law allows the detention of individuals in order to prevent acts threatening ‘public peace and order’ and ‘national security’

Areeka Tufail Mir

PREVENTIVE DETENTION’, as understood in such laws, involves detention without criminal trial. That is, neither criminal offense is proven nor any charge formulated.

A police officer may arrest such person, without orders from a Magistrate, and without a warrant, if it appears to such officer that the commission of the offence cannot be otherwise prevented. The Constitution of India explicitly empowers the Parliament to enact laws providing for preventive detention which includes various enactments of preventive detention laws, like Public Safety Act (PSA), 1978; National Security Act (NSA) (1980), which provides for administrative detention for a period of up to one year; Prevention of Terrorism Ordinance (POTO) in 2001.

In India, the major backdrop through the history of preventive detention falls at the beginning of the British guideline when under the Bengal Regulation III of 1818 the legislature was enabled to keep anyone on minor doubt.

Preventive detention laws have a long and politically-backed history. Indeed, preventive detention was a common feature of the colonial legal system in India. In the 19th Century, a dense network of regulations provided for detention and arrest without trial in certain cases, and detainees were denied the right to file a petition in courts as writs of ‘habeas corpus’. It is surprising that the framers of the Indian Constitution, who suffered most because of the Preventive Detention Laws, did not hesitate to give Constitutional sanctity to the Preventive Detention and that too in the Chapter of Fundamental Rights in the Constitution. Prevention Detention Act (PDA) was piloted by Sardar Vallabhbhai Patel, who said that he had several ‘sleepless nights’ before he could actually decide that it was necessary to introduce such a Bill in the Constitution of India.

The first PDA was enacted by the Parliament on 26th February 1950, and under this Act, not the usual disturbers of order and peace were arrested, but a political leader of A.K. Gopalan’s eminence. Even from that initial action, it was evident that these Acts were meant to curb political dissent, and such legacy has been and is being followed throughout. In some cases, the suspicion is based on the detainee’s past criminal records or associations, but in other cases, such suspicion may be purely speculative.

According to an illustrative material received from a non-governmental organization, Administrative detention was a common practice in more than 30 countries where thousands of persons were said to be held in detention without charge or trial, either because they were viewed as a potential threat to national security or public order. To prevent the negligent utilisation of preventive detentions and incessant misuse of the law in practice, our constitution provides three major safeguarding provisions under Article 22 of the Indian constitution.

These provisions are merely given to try minimising the misuse of preventive detention, but we find that preventive detention processes come without many of the hallmarks of procedural fairness that we take for granted in regular criminal law.

Parliament may by law prescribe the ‘class or classes of cases’ in which a person could be detained for a period longer than three months without the approval of the Advisory Board. Even in the absence of any alleged wrongdoing, Indian law allows the detention of individuals in order to prevent acts threatening ‘public peace and order’ and ‘national security’. Neither the Constitution nor the current preventive detention legislation attempts, however, to define either the range of acts considered threatening to ‘public peace and order’ and ‘national security’. This deficiency poses a fundamental challenge to the legality of preventive detention.

The NSA empowers executive officials to issue detention orders if satisfied concerning any person that such an order is necessary. Clearly, this provision authorises preventive detention if only the detaining authority is satisfied that the detention is necessary to prevent threats to ‘public order’ or ‘national security’. In Anil Dey v. State of West Bengal, the Supreme Court held that the ‘veil of subjective satisfaction of the detaining authority cannot be lifted by the courts with a view to appreciate its objective sufficiency’; they do review whether the satisfaction is ‘honest and real, and not fanciful and imaginary’.

India has not only signed but also ratified the International Covenant on Civil and Political Rights (ICCPR) in 1979 which recognizes the inherent dignity of each individual and undertakes to promote conditions within states to allow enjoyment of civil and political rights. Article 9(5) of the ICCPR provides: Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. The ICCPR applies to all ‘unlawful detentions’. This would include detentions which are unlawful under the ICCPR, or detentions that are unlawful under a State’s own domestic law. The Law Commission charged with reshaping the antiterrorism legislation observing that Supreme Court orders have held that people are effectively entitled to compensation in many of its upholdings. In this light, the Government of India should promptly pull back its reservation of Article 9(5) of the ICCPR and include a Constitutional provision guaranteeing the right to compensation.

On detention, we see instances of inhuman treatment given to prisoners that have led to the violation of strict Human Rights Laws. It is an international concern lead under the Universal Declaration of Human Rights, and in India, the National Human Rights Commission has laid down several measures and directives. Some of the important among them which could prevent the prisoners from inhuman treatment and restrict preventive detention in accordance with the security of the Nation include detailed recording of facts leading to satisfaction of authority and the second, conveying the grounds of detention to the Detainee. People should be sensitized about various personal liberties. In case there is an unlawful detention, there must be a provision for interim relief or compensation.

However, it has now been the pressing priority to critically review the Preventive Detention Laws. According to the government data, 6,605 persons have been taken into preventive custody since August 2019 and out of them, presently over 450 people are detained under the PSA in J&K itself. In our world, prisons are still laboratories of torture, inhumane behavior of the officials where a spectrum of impatient rage flows. It takes away a slice of the detainee’s life and the legal system which permits this outrage, therefore, owing it to the detainee that he be compensated financially if his detention is declared illegal; ergo Preventive detention must conform to the principles of justice and must not be inappropriate and unjust. An appraisal of the legality of preventive detention laws must be based on a specific analysis of appropriateness and proportionality of the particular preventive detention measures.

  • The writer is the 3rd year law student at University Of Kashmir. He can be contacted at [email protected] 

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