16-September-2024-Editorial

PREVENTIVE DETENTION IN INDIA

Preventive detention in India is a contentious issue due to its potential clash with personal liberty and democratic principles. While preventive detention laws are designed to protect national security and public order, they also pose the risk of being misused, limiting fundamental rights.

Recent judicial decisions, like the Jaseela Shaji vs Union of India case, 2024, have established new standards to safeguard the rights of detainees and ensure that preventive detention is applied fairly and transparently.

New Standards for Preventive Detention Set by Supreme Court (SC)

The Supreme Court’s ruling in the Jaseela Shaji vs Union of India case set important benchmarks for preventive detention, particularly under the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, 1974. Key takeaways include:

• Fair Opportunity to Defend: Authorities must provide the detainee with all the documents that form the basis of their detention. Failure to do so invalidates the detention.
• Respect for Constitutional Rights: SC emphasized that personal liberty is a fundamental right under Article 22(5) of the Constitution, and withholding important documents from detainees infringes this right.
• Prevention of Arbitrary Detention: Authorities must avoid arbitrary actions and provide documents in a language the detainee understands, respecting their right to a fair process.
• Timeliness of Communication: Authorities should communicate detention decisions without undue delay, utilizing technology to ensure swift and efficient processes.

Constitutional Safeguards

Article 22 of the Indian Constitution provides essential protections to individuals who face arrest or detention. These protections ensure that fundamental rights are respected, whether in ordinary arrest situations or under preventive detention laws.

Types of Detention:

Punitive Detention:

• Applied after a trial and conviction for a committed offense.
• Follows due legal processes.

Preventive Detention:

• Imposed without trial to prevent potential offenses.
• Based on suspicion of possible future harm, not actual criminal actions.

Article 22:

Rights Under Ordinary Law:

• Right to Know Reasons for Arrest: The detainee must be informed of the grounds for their arrest.
• Right to Legal Counsel: The arrested individual has the right to consult and be defended by a lawyer.
• Right to Judicial Review: Detainees must be presented before a magistrate within 24 hours.
• Protection from Prolonged Detention: Further detention can only be authorized by a magistrate.

Rights Under Preventive Detention Laws:

• Maximum Detention Without Review: A person cannot be held for more than three months unless an advisory board finds sufficient grounds for extended detention.
• Right to Know Detention Grounds: The grounds for detention must be communicated to the detainee, except for facts withheld in the public interest.
• Right to Representation: Detainees have the right to challenge the detention order.

Legislative Powers on Preventive Detention

Both the Parliament and state legislatures have the authority to enact preventive detention laws for issues related to national defense, security, public order, and essential services. However, the Parliament holds exclusive power over preventive detention laws concerning national security, foreign affairs, and defense.

Parliament’s Authority to Extend Detention:

• The Parliament can specify situations where a person can be detained beyond three months without the advisory board’s opinion.
• It can also set the maximum detention period and the procedure for advisory boards.

Amendments

The 44th Amendment Act (1978) reduced the detention period without the advisory board’s opinion from three months to two months. However, this provision is yet to be enforced, keeping the original three-month limit.

Several laws have been enacted to maintain national security and public order, including:

• COFEPOSA Act, 1974
• National Security Act (NSA), 1980
• Unlawful Activities (Prevention) Act (UAPA), 1967

Criticism

• Potential for Abuse: The use of preventive detention to curb dissent, political opposition, or free speech has led to concerns about its misuse.

• Judicial Limitations: Courts have limited power to examine the merits of detention, focusing mainly on whether procedural safeguards were followed.
• Colonial-Era Laws: Some preventive detention laws, rooted in British colonial rule, do not align with contemporary human rights standards.
• Transparency Issues: The broad powers granted to authorities often lack sufficient checks, leading to concerns about accountability and transparency.

Judicial Decisions Related to Preventive Detention

• Shibban Lal vs State of Uttar Pradesh (1954): The SC held that courts cannot question the truthfulness of the facts used to justify detention, limiting judicial intervention.
• Khudiram vs State of West Bengal (1975): The SC affirmed that decisions under the Maintenance of Internal Security Act (MISA) are final and not subject to court review.
• Nand Lal Bajaj vs State of Punjab (1981): The SC acknowledged preventive detention’s inconsistency with democratic principles but left reform to the legislature.
• Rekha vs State of Tamil Nadu (2011): The SC warned against overuse of preventive detention and called for its strict application to avoid infringing on Article 21.
• Prem Narayan vs Union of India (2019): The Allahabad High Court underscored that preventive detention infringes on personal freedom and must be applied judiciously.
• Abhayraj Gupta vs Superintendent, Central Jail, Bareilly (2021): The court ruled that preventive detention should not be used when the individual is already detained for unrelated reasons.

Conclusion

Preventive detention remains a complex legal tool in India. While it plays a crucial role in maintaining national security and public order, its misuse poses a threat to personal liberty and fundamental rights.

Recent judicial rulings, like the Jaseela Shaji vs Union of India case, have emphasized the need for fairness, transparency, and accountability. Reforms are essential to balance the need for security with the protection of human rights in a modern democracy.