The Hindu Editorial Analysis- 12th April 2023 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

Why in News?

The Supreme Court’s observation that preventive detention laws are a colonial legacy and confer arbitrary powers on the state is one more iteration of the perennial threat to personal liberty that such laws pose. For several decades now, the apex court and High Courts have been denouncing the executive’s well-documented failure to adhere to procedural safeguards while dealing with the rights of detainees.

Preventive Detention

• Detention in its simplest sense means to curb the liberty of an individual i.e. without the knowledge of that individual. 
• There are 2 types of Detention:
  • Preventive Detention
  • Punitive Detention
• Constitutional legitimacy
  • Article 22 of the Indian Constitution provides protection against arrest and detention in certain cases.
  • Article 22 (1) of the Indian Constitution says an arrested person cannot be denied the right to consult, and to be defended by, a legal practitioner of his choice.
  • It allows for preventive detention and restriction on personal liberty for reasons of state security and public order.
  • Article 22 (4) states that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless:
    • An Advisory Board reports sufficient cause for extended detention.
    • Such a person is detained in accordance with the provisions of any law made by the Parliament.
    • The 44th Amendment Act of 1978 has reduced the period of detention without obtaining the opinion of an advisory board from three to two months. However, this provision has not yet been brought into force, hence, the original period of three months still continues.
  • Under Entry 9 of List I (better known as the ‘Union List’), Parliament has the exclusive power to enact a law for preventive detention for the reasons connected with defence, foreign affairs, or security of India. 
  • On the other hand, under Entry 3 of List III (better known as the ‘Concurrent List’), both Parliament and State Legislature have powers to enact such laws for the reasons related to maintenance of public order or maintenance of supplies or services essential to the community.
  • Under Section 151 of The Criminal Procedure Code, 1973 (CrPC) preventive detention is action taken on grounds of suspicion that some wrong actions may be done by the person concerned.
  • The basic difference between the two is that in case of preventive detention, it is an anticipatory measure where the person did not commit any crime and detained only on mere suspicion for committing crime in future, while punitive detention is detaining a person for committing an offence. 

Preventive Detention Laws in India

• Parliament passed a legislation named Preventive Detention Act, 1950 which talks about the detention of a person on the grounds of defense, foreign affairs or the security of the state. 
• History: 
  • The constitutionality of Preventive Detention Act, 1950 was challenged in the case of A.K. Gopalan V. State of Madras where a leader named A.K. Gopalan was detained in Madras jail from 1947. 
  • He challenged the validity of the aforesaid act as this act of state of further detaining him is in violation of Articles 13, 19 and 21 and provisions of the act are not in accordance with Article 22 enshrined under the Constitution of India. 
  • The case was decided by 4:1 ratio, where the majority does not recognize detention as an infringement of personal liberty under Article 21. 
  • Minority view in the case: Preventive detention, which is dealt with in Article 22, also amounts to deprivation of personal liberty which is referred to in Article 21, and is a violation of the right of freedom of movement dealt with in Article 19(1)(d). 
• The interrelationship between fundamental rights paved the way for acknowledging privacy as a fundamental right in Justice K.S. Puttaswamy case by overruling MP Sharma and Kharak Singh case. 

Safeguards Provided in Constitution

• To prevent reckless use of Preventive Detention, certain safeguards are provided in the constitution.
  • A person may be taken to preventive custody only for 3 months at the first instance. If the period of detention is extended beyond 3 months, the case must be referred to an Advisory Board consisting of persons with qualifications for appointment as judges of High Courts. It is implicit that the period of detention may be extended beyond 3 months, only on approval by the Advisory Board.
  • The detainee is entitled to know the grounds of his detention. The state, however, may refuse to divulge the grounds of detention if it is in the public interest to do so. Needless to say, this power conferred on the state leaves scope for arbitrary action on the part of the authorities.
  • Thirdly, the detaining authorities must give the detainee earliest opportunities for making representation against the detention.

Concerns

• The government holds the right to conceal information which it considers to be against public interest to disclose.
• The power of preventive detention is mostly misused by the authorities. 
• The use of preventive detention even during peacetime denotes 'anachronism'.
• It is a matter of irony that the makers of our Constitution, who themselves were once victims of the tyranny of preventive detention laws, still chose to grant powers to governments under the Constitution to enact such laws. 
• According to Section 50 of the Criminal Procedure Code (CRPC), any person arrested has to be informed of the grounds of arrest and has the right to bail. But getting bail is not a simple task in reality.

Way Ahead

• The preventive detention should be strictly used with the delicate balance between social security and citizen freedom.
• As the Supreme Court has observed that to prevent misuse of this potentially dangerous power, the law of preventive detention has to be strictly construed and need to follow meticulous compliance with the procedural safeguards. There is an urgent need to ensure this.