PREVENTIVE DETENTION: A LEGISLATION OR A BLANKET RULE?

This Article has been authored by Udit Bajpai, a student at NUSRL, Ranchi





Introduction


Preventive detention is described as the practise of incarcerating offenders prior to trial under the premise that their release would be harmful to society and that, if released, they would commit several other crimes. If the accused's release is deemed to jeopardise the State's ability to perform its investigation, preventive detention is used. Preventive detention, to put it simply, means that a person is held without being tried or convicted by a judge, based on a mere apprehension established in the executive authority's mind. Mariappan v. The District Collector and Others held that the aim of detention and its rules is to prevent such crimes from being committed, not to punish anybody.


The Supreme Court, stated in the case of Union of India v. Paul Nanickan and Anr., that the object of preventive detention is not to punish anyone for doing anything, but to hinder and discourage them from doing it. The basis for such detention is suspicion or a fair possibility, rather than a criminal prosecution, which can only be supported by solid evidence.


Preventive Detention can also be termed as the detention of an individual without charge or trial for non-punitive reasons, and is often referred to as a preventive rather than a punitive measure. The law on preventive detention is fundamentally different from arrest and imprisonment in a normal criminal jail, which is applicable in both a crisis and a calm situation. Provisions under Article 22(1) and (2) of the Constitution are given to the arrested person in the event of arrest and detention, but such guarantees are not applied to the arrested detention under Article 22(3) due to the rule of preventive detention.Protections in connection with preventive detention are given in clauses (4) to (7).


We actually have a number of laws governing preventive detention, but it is still unclear how effective these procedures are at safeguarding a detainee's interests. Existing laws encourage the exercise of authority in arbitrary ways, necessitating immediate judicial intervention. When it comes to punitive detention, a judicial analysis is ensured prior to the arrest, but when it comes to preventive detention, the executive has the coercive power with relation to detention.


Preventive detention laws are incompatible with the liberal democratic Constitution. These laws pose serious questions about citizen protection, as specified by Article 22 of the Indian Constitution, as well as the liberty of an individual detained solely on suspicion.

A police officer may arrest any individual without a Magistrate's authority or a warrant if he receives intelligence that the person is likely to commit any crime of cognizable nature that cannot be prevented otherwise, according to Section 151 of The Code of Criminal Procedure, 1973.


Background


Preventive detention has a long history in India, and it is one of the few countries in the world that has such laws in place. Despite the fact that critics claim that the provisions relating to preventive detention lack any safety measures that are widely recognised as essential components in safeguarding basic human rights, critics also claim that the provisions relating to preventive detention are devoid of any safety measures that are widely recognised as essential components in safeguarding basic human rights. The South Asia Human Rights Documentation Centre (SAHRDC) suggested the abolition of constitutional clauses that specifically authorise preventive detention in its August 2000 submission to the National Commission for the Review of the Functioning of the Constitution (NCRWC).


Legislations Governing Preventive Detention


On February 26, 1950, the first Preventive Detention Act was passed, with the intention of preventing anti-national elements from carrying out actions that would jeopardise the nation's security and safety. After the remaining two years of practise, the Act was meant to come to an end. However, the Act's time limit was extended from time to time until it was eventually repealed in 1971.


MISA (Maintenance of Internal Security Act) was enacted in 1971 to ensure India's internal security. It was viewed as a contentious Act because it was regularly used to threaten and arrest individuals who posed a danger to Congress's governance, such as representatives of other political parties, reporters, and social workers. When the Janata Party won in 1977, the act was eventually repealed after several changes.


COFEPOSA, or the Foreign Exchange and Prevention of Smuggling Activities Act, was passed in 1974 and provided for preventive detention in order to preserve and boost foreign exchange and discourage illicit trade. COFESA acted as a back-up to MISA in 1971, and despite MISA's repeal in 1977, COFESA remained in effect. Smugglers' detention periods were originally set at one year, but on July 13, 1984, they were extended to two years. The Terrorist and Disruptive Activities (Prevention) Act (TADA) was enacted in 1985 in response to the separatist movement in Khalistan. The act was initially only planned to last two years, but it was revised and reintroduced in 1987.


In April 2001, the Prevention of Terrorism Act, or POTA, was introduced as a Bill identical to TADA. In the aftermath of terrorist attacks in the United States in 2001, POTO (Prevention of Terrorism Ordinance, 2001) was drafted as an authoritative decree.


The Unlawful Activities (Prevention) Act, or UAPA, was first enacted in 1967 to make all such groups, considered to be separatist followers, illegal. Several organisations were declared null and void under this act in the 1990s, in the aftermath of the Babri Mosque's destruction and the emergence of separatist movements in Kashmir.


Constitutional Validity


In cases where state circumstances are concerned, such as national defence, the maintenance of peace and public order, foreign relations, and so on, the Preventive Detention Act of 1950 strengthens human detention.


In the case of AK Gopalan vs. State of Madras, the validity of the Preventive Detention Act, 1950 was challenged in Court, where it was clear that an individual's rights did not qualify as granted under Article 21. The Supreme Court declined to consider whether there were any defects in the legal process because it took a narrow view of Articles 21 and 22. It was assumed that each constitutional article was independent of the others.When the petitioner challenged the legality of his detention on the grounds that it violated his rights under Articles 19 and 21 of the Indian Constitution, the Supreme Court rejected all claims that the detention could be justified solely because it followed "legally defined procedure."


Conclusion


For a developing world, securing scarce resources while maintaining peace and order is important. Since independence, India has seen numerous rebellions based on gender, class, ethnicity, religion, and other factors. Through the use of these preventive detention methods and national security legislation, India has largely been effective in maintaining its freedom, sovereignty, and autonomy. The preventive detention laws aren't entirely just and fair, and they need to be tweaked to fall within the framework of the Right to life and liberty. Some critics claim that protection is incompatible with the principle of universal human rights. India is a vast country with long borders and many identities, which causes it to be viewed negatively by its neighbours. Under these circumstances, these security-related laws, acts, and provisions are responsible for safeguarding India's freedom, integrity, and sovereignty.

 
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