By Ashutosh K Sharma
Criminal law—a body of law that relates to crime and a tool to prosecute criminals—prescribes conduct perceived as threatening, harmful or otherwise endangering the property, safety and welfare of people. After securing independence, India adopted its Constitution in 1950. However, the Constitution-makers suffered the most because of preventive detention laws, but still chose to grant exemption to such laws.
Recently, on September 30, 2022, a Supreme Court bench headed by Chief Justice of India UU Lalit in Sushanta Kumar Banik vs State of Tripura & Ors set aside a preventive detention order passed by the Tripura government in November 2021 against a man to prevent illicit drug trafficking. The apex court said there was non-application of mind and withholding of vital information by authorities.
The Bench said that apart from contravention of the safeguards, a detention order can also be vitiated on account of unexplained delay in detaining the person. “Preventive detention is a serious invasion of personal liberty and the normal methods open to a person charged with commission of any offence to disprove the charge or to prove his innocence at the trial are not available to the person preventively detained and, therefore, in preventive detention jurisprudence, whatever little safeguards the Constitution and the enactments authorising such detention provide, assume utmost importance and must be strictly adhered to,” underlined the Court.
The first Preventive Detention Act was enacted by Parliament on February 26, 1950. Even then, it was evident that the Act was meant to curb political dissent, and that approach has been followed ever since.
Preventive detention is when a person is held in police custody only on the basis of a suspicion that he would conduct a criminal act or cause harm to society. The objective is not to punish but to prevent the individual from doing something which is prejudicial to the State/society. It may come within any of the grounds specified like security of the State, public order, foreign affairs, services essential to the community, etc.
In Mariappan vs The District Collector and Others, it was held that the object of detention and detention laws was not to punish, but to prevent the commission of certain offences. A detainee under preventive detention can have no right of personal liberty guaranteed by Article 19 or Article 21. Preventive detention can, however, be made only in exceptional grounds.
Both the state and the central governments have been vested with the powers of enactment of such laws which relate to the maintenance of public order, maintenance of supplies and essential services to the society. Preventive detention finds its place in the Constitution and that too under the Chapter of Fundamental Rights. Article 22(3) of the Constitution provides that “if the person who has been arrested or detained under preventive detention laws then the protection against arrest and detention provided under Article 22 (1) and 22 (2) shall not be available to that person”. It is more of a fundamental danger than a right.
The Criminal Procedure Code of India also provides for preventive detention under Section 151 which is as follows: “A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.”
Earlier, there was the Preventive Detention Act, 1950, which was in effect till 1969. Two years later, the Parliament enacted the Maintenance of Internal Security Act (MISA). This was used as a political weapon during Emergency to curb political criticism and dissent. MISA was repealed in 1978, but another preventive detention law, the National Security Act was enacted, which is still effective. Simultaneously, in 1967, the government enacted the Unlawful Activities Prevention Act (UAPA), which is currently recognised as a terror law.
Though the main purpose of preventive detention laws was to prevent the commission of a crime prejudicial to law and order of a State, it failed to serve its purpose. On the other hand, it is proving to be a tool to curtail the liberty of an individual. This has been observed by the highest court of the country from time to time.
According to latest crime statistics released by the National Crime Records Bureau, there has been a rise in preventive detentions in 2021 of about 23% as compared to 2020, with over 1.1 lakh people being placed under it.
The first case in post-independent India where the constitutionality of the Preventive Detention Act, 1950, was questioned was that of political leader AK Gopalan. The Court upheld the validity of the Preventive Detention Act in the said case because of the explicit provisions of Article 22(5).
In Union of India vs Paul Nanickan and Anr (2003), the Supreme Court stated that “the object of preventive detention is not to punish a man for having done something but to intercept him, before he does it, and to prevent him from doing it. No offence is proved, nor any charge formulated; and the justification for such detention is suspicion or reasonable probability and not criminal conviction, which can only be warranted by legal evidence”.
However, in Union of India vs Dimple Happy Dhakkad (2019), the apex court held that even if a person is in judicial custody, he can be detained under detention laws like Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (COFEPOSA). This was a case where the accused were already arrested under the regular criminal process, but also subjected to the preventive detention order under COFEPOSA as the case involved gold smuggling. The Supreme Court in this case relied completely on the doctrine of “subjective satisfaction” of the detaining authority.
It is significant to substantiate the recent judgment of Allahabad High Court in Nuzhat Perween vs State of Uttar Pradesh (2020). In this case, Dr Kafeel Khan (son of Nuzhat Perween) gave a public speech in Aligarh Muslim University during the Citizenship Amendment Act protest. It was alleged that his speech incited feelings of communal disharmony and also led to violent protests by some students. A preventive detention order was passed against him to maintain public order in the district and he was put behind bars. He applied for bail and it was granted. Thereafter, the main political drama started.
The bail order was not enforced. When the Court passed a second order to release Khan, the state claimed that the order was notified later and they had already taken a preventive detention order authorised by the district magistrate, Aligarh. When this matter reached the High Court of Allahabad, it took around six months for a decision to be made. This was despite the Supreme Court in National Investigation Agency vs Zahoor Ahmed Shah Watali (2020) ruling that it was not permissible for courts to be engaged in a detailed analysis of a prosecution case while considering bail under UAPA. This judgment tied the hands of the defense and grant of bail was rendered impossible till the end of the trial.
In 2021 itself, the Supreme Court while issuing notice to the Telangana government said that the Telangana Prevention of Dangerous Activities Act 1986 was a “draconian law”. “It is clearly against the liberty of persons. It is surprising that no one has challenged the validity of the law,” it said.
In a recent bail order, the Delhi High Court in Devangana Kalita vs State of NCT of Delhi (2021), observed that the State in its anxiety to suppress dissent had blurred the line of the constitutionally guaranteed right to protest and terrorist activity. The Court uprightly confronted Section 43D(5) of UAPA. It held: “The making of inflammatory speeches, organizing chakkajams, and such like actions are not uncommon when there is widespread opposition to Governmental or Parliamentary actions. Even if we assume for the sake of argument, without expressing any view thereon, that in the present case inflammatory speeches, chakkajams, instigation of women protesters and other actions, to which the appellant is alleged to have been party, crossed the line of peaceful protests permissible under our Constitutional guarantee, that however would yet not amount to commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act as understood under the UAPA.”
The Supreme Court in Banka Sneha Sheela vs The State of Telangana & Ors on August 2, 2021, said: “Preventive detention is a necessary evil only to prevent public disorder. The court must ensure that the facts brought before it directly and inevitably leads to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large.”
The State should not arbitrarily resort to preventive detention to deal with all and sundry law and order problems which could be dealt with by the ordinary laws of the country.
On June 22, 2022, a vacation bench of the Supreme Court in Shaik Nazneen vs The State of Telangana & Ors., heard an appeal filed by a chain-snatcher who was held under preventive detention on the grounds that he was a menace to “public order” as his crimes had caused fear and panic among women. The Court distinguished between law-and-order situations and public disorder. Preventive detention may apply in the latter, but never for the former situation, it said.
The Court elaborated: “Every breach of the peace does not lead to public disorder. When two drunks quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the grounds that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder.”
In A.K. Roy vs Union of India, the validity of the Act was upheld by completely relying on Article 22(3)(b). After this judgment, preventive detention laws have never been tested constitutionally and this settled proposition is proving to be very unsettling now.
The law in India allows detention of individuals in order to prevent acts that may threaten “national security” or “public order”. But these terms are not expressly defined in our legislations—what amounts to national security or public order or what possibly are the acts that fall under these categories of offences.
This lack of clarity poses a challenge on the legality of these laws. These laws must be tested constitutionally. Further, it is need of the hour from higher constitutional courts to keep a check on authorities with respect to inappropriate application of preventive detention laws.
—The writer is a legal consultant in Chandigarh