ARTICLE: PREVENTIVE DETENTION IN INDIA: NATIONAL SECURITY AT THE COST OF PERSONAL LIBERTY? , AUTHOR: Ayush Gupta
Preventive Detention is one such divisive aspect of the Indian legal System. It creates a situation where public interest of the country clashes with personal liberty of the individual. Preventive Detention gives the power to the State to detain any person based on the possibility of committing an act which would cause harm to anyone in future. This article talks about the preventive detention as a constitutional principle. Here, we analyze the articles 21 and 22 of the Indian Constitution and the protections under the National Security Act, 1980.The article also analyses some landmark judgments and the issues of human rights. Based on these analyses, the article analyses if the current system provides justice between security and personal liberty.
ARTICLE
ABSTRACT
Preventive Detention is one such divisive aspect of the Indian legal System. It creates a situation where public interest of the country clashes with personal liberty of the individual. Preventive Detention gives the power to the State to detain any person based on the possibility of committing an act which would cause harm to anyone in future. This article talks about the preventive detention as a constitutional principle. Here, we analyze the articles 21 and 22 of the Indian Constitution and the protections under the National Security Act, 1980.The article also analyses some landmark judgments and the issues of human rights. Based on these analyses, the article analyses if the current system provides justice between security and personal liberty.
Keywords: Preventive Detention, Personal Liberty, Article 21, Article 22, National Security Act, Judicial Review.
1. INTRODUCTION
The principle of the rule of law is fundamental in preventing arbitrary interference with individual freedom by the State. Under the standard criminal justice system, if the State suspects that a person has committed a crime, it will investigate. Following this investigation, the State will present evidence to the courts and attempt to secure a conviction. Preventive detention disrupt this process, as individual can be detained by the executive without any prior criminal conviction because of the possibility that they may do something harmful in the future.
This leads to an important constitutional matter. Article 21 states that no one shall be deprived of their life or personal liberty except in accordance with procedures established by law. Article 22 outlines that preventive detention can occur but with constitutional safeguards. However, the Supreme Court interpreted these articles separately in A.K. Gopalan vs State of Madras (1950). Later, they found that there was a connection between Articles 14, 19 and 21 in Maneka Gandhi vs Union of India (1978). Any procedure that deprives someone of personal liberty must be just, fair and reasonable.
Whilst the State argues that preventive detention is necessary for national security and maintaining public order it creates a conflict between individual liberties. This article will discuss whether the current preventive detention system within India provides a fair balance between security and freedoms or if it can be abused by the executive.
2. MEANING AND PURPOSE OF PREVENTIVE DETENTION
Preventive detention is different to punitive-detention. It aims to prevent the individual committing harmful acts.
Punitive detention will usually occur after a guilty sentence has been passed at a trial where it can be proved beyond reasonable doubt that they are guilty. Preventive detention is not required to have a criminal conviction and therefore has less protection. Preventive detainees will be protected by constitutional and statutory provisions specifically set up for them.
There is nothing to stop preventive detention being used (Article 22), but key is that the executive are using this power reasonably and tightly.
3. CONSTITUTIONAL FRAMEWORK
Articles 21 and 22 form the basis of constitutional framework governing preventive detention. Article 22(3)(b) exclude preventive detainees from the protections under Articles 22(1) and 22(2). However, preventive detainees enjoy certain rights and safeguards under Article 22.
Article 22(5) require the authority to communicate the grounds of detention to the detainee as soon as may be. It must also provide the earliest opportunity to make a representation against the detention order. Article 22(4) establish an Advisory Board made up of people who are, have been, or are qualified to be appointed as High Court judges. The Board examine the case and reports whether there is sufficient cause for the detainee to remain in custody.
A key constitutional point to note here is the time limit between detention and the review by the Advisory Board. Section 3 of the Constitution (Forty-fourth Amendment) Act, 1978, sought to reduce the time limit from three months to two months for obtaining opinion of the Board. However, this provision had never been brought into force. In A.K. Roy vs Union of India (1982), the Supreme Court declined to issue a writ of mandamus to compel the Government to implement it because Parliament had left the commencement date to the Central Government.
Article 22(6) also allow the authority to withhold information where its disclosure is considered against the public interest. This could cause an imbalance and leave the detainee unable to prepare an effective representation.
4. PREVENTIVE DETENTION LEGISLATION
Another important law governing preventive detention is the National Security Act, 1980. It provides grounds for detention under Section 3.
Section 3(1) empowers the Central Government or State Government to make a detention order to prevent a person from acting in a manner prejudicial to:
The defence of India
The relations of India with foreign powers
The security of India.
Section 3(2) empowers the Central Government or State Government to make a detention order to prevent a person from acting in a manner prejudicial to:
The security of the State
The maintenance of public order
The maintenance of supplies and services essential to the community.
Section 3(3) allows a State Government, by written order, to authorise the District Magistrate or Commissioner of Police to exercise the powers under Section 3(2) within a specified local area and period. The initial authorisation period cannot exceed three months at a time and may be extended for further periods of up to three months at a time, subject to the Act.
The NSA also sets out procedures for detention. Section 8 states that the grounds of detention must generally be communicated within five days. However, in exceptional circumstances, they can be communicated within fifteen days, provided written reasons are recorded. Section 10 states that the government must refer the case to the Advisory Board within three weeks of detention. Section 11 states that the report must be provided within seven weeks.
If the Advisory Board provides a report stating that there are sufficient grounds for detention, the government may confirm the order. However, if there are insufficient grounds for detention, the government must revoke the order and release the person under Section 12. Section 13 provides that the maximum period of detention under the Act is twelve months from the date of detention.
Other Acts that also provide for preventive detention include the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. This deals with conserving foreign exchange and preventing smuggling. The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, separately deals with preventing the illicit trafficking of narcotics.
5. JUDICIAL INTERPRETATION
It is important to consider the judicial interpretation of preventive detention powers. It was held in Khudiram Das vs State of West Bengal (1975) that the subjective satisfaction of the executive could be challenged by the courts. The Court can consider whether the decision was based on relevant considerations, whether any irrelevant factors were considered and whether the authority acted in good faith.
In A.K. Roy vs Union of India (1982), the Supreme Court discussed Section 11(4) of the NSA. It stated that the detainee must be given an equal opportunity to be represented by a legal practitioner if the government is represented by a legal practitioner or legal adviser. The detainee can also be assisted by a friend who is not a legal practitioner.
The difference between ordinary law and public order was considered in Dr. Ram Manohar Lohia v State of Bihar (1966). The concentric circle theory was explained. The outermost circle represents law and order. Within that lies public order, and within that lies the security of the State. The effect and nature of the act will determine whether it relates to public order or an ordinary law and order issue. This has also been discussed in Arun Ghosh vs State of West Bengal (1970).
The Supreme Court has also stated that preventive detention powers should not be used as a substitute for ordinary criminal processes. In Pebam Ningol Mikoi Devi vs State of Manipur (2010), the Court stated that difficulty in prosecuting someone under ordinary criminal law does not, by itself, justify preventive detention. In Rekha vs State of Tamil Nadu (2011), the Court stressed that if a person is already in custody, there must be relevant material to show a real possibility of their release on bail and a likelihood of their engaging in prejudicial activities after release. Preventive detention cannot be used simply because the executive has assumed that such detention is necessary without supporting material.
6. HUMAN RIGHTS CONCERNS AND CRITICAL ANALYSIS
There are several human rights issues concerning preventive detention. There is a danger of the executive abusing its powers by creating confusion between normal law and order issues and public order issues. Although there are judgments such as Dr. Ram Manohar Lohia and Arun Ghosh which outline the differences between both, it can be argued that normal criminal activity may be presented as a threat to public order or security. This can cause authorities to avoid the usual evidentiary requirements needed in criminal trials.
There are concerns that the judicial review process and habeas corpus may not be effective. When a case comes to court, the judges examine whether the correct constitutional and statutory procedures have been followed and whether representations have been considered in a timely manner. However, this may not fully address the concerns surrounding the necessity of detention and the evidence used.
This also links to Article 9 of the International Covenant on Civil and Political Rights (ICCPR). This article outlines the right to liberty and security of person and protects against arbitrary arrest and detention. India ratified the ICCPR in 1979. In doing so, it made a declaration regarding Article 9 and its application in relation to Articles 22(3) to 22(7) of the Indian Constitution.
7. RECOMMENDATIONS AND REFORMS
To strike a balance between security and freedom, the following should be implemented:
Statutory guidelines should be made more explicit to ensure that there is a clear distinction between law and order and public order. This will reduce the likelihood that ordinary crimes will be considered grounds for preventive detention.
The time limit within which representations made by detainees under Article 22(5) must be considered should be made explicit.
Section 3 of the Constitution (Forty-fourth Amendment) Act, 1978, should be brought into force. This would reduce the time before the opinion of the Advisory Board is required from three months to two months.
Careful consideration should be given to the provisions of Article 22(6), to ensure that detainees are sufficiently informed so that they can effectively make a representation. This can be done through reconsidering Section 11(4) of the NSA.
The detaining authority should provide proper justification and supporting material explaining why the individual cannot be dealt with through ordinary criminal procedures and must be placed under preventive detention. This is consistent with the principles discussed in Pebam Ningol Mikoi Devi (2010).
8. CONCLUSION
Preventive detention is one of the most controversial aspects of the Indian Constitution. While Article 22 provides the State with powers of preventive detention, it must be ensured that this does not become a tool to bypass the criminal justice system. There is a great possibility of abuse in this situation, as it allows people to be detained for something they are expected to do in the future. Cases such as Khudiram Das, A.K. Roy and Rekha show how important it is to ensure judicial review. Procedures must be put in place to protect people more effectively, judicial review must be effective and there must be more accountability. National security cannot be used as an excuse to disregard personal freedoms. Preventive detention should only be used in extreme cases and within strict constitutional boundaries.
BIBLIOGRAPHY
1. Cases
A.K. Gopalan vs State of Madras, AIR 1950 SC 27.
A.K. Roy vs Union of India, (1982) 1 SCC 271.
Arun Ghosh vs State of West Bengal, (1970) 1 SCC 98.
Dr. Ram Manohar Lohia vs State of Bihar, (1966) 1 SCR 709.
Khudiram Das vs State of West Bengal, (1975) 2 SCC 81.
Maneka Gandhi vs Union of India, (1978) 1 SCC 248.
Pebam Ningol Mikoi Devi vs State of Manipur, (2010) 9 SCC 618.
Rekha vs State of Tamil Nadu, (2011) 5 SCC 244.
2. Statutes and Constitutional Provisions
The Constitution of India, 1950.
The Constitution (Forty-fourth Amendment) Act, 1978.
The National Security Act, 1980.
The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
3. International Instruments
International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.
4. Books and Secondary Sources
Granville Austin, Working a Democratic Constitution: The Indian Experience (Oxford University Press, 1999).
D.D. Basu, Introduction to the Constitution of India
AUTHOR NOTE
Ayush Gupta is a BA LL.B. student at IILM University, Greater Noida. His academic interests include constitutional law, legal research and contemporary legal issues, with a particular interest in the relationship between individual rights and the justice system.