Abstract: --

Crime is inevitable phenomenon in every society. It is fundamental duty of the state to protect the individuals from the crime which is a very challenging task for every state and at the same time it has to protect the fundamental rights and freedoms provided to the individuals. Balancing of personal freedoms against society’s prior needs has therefore to be harmonized. This balancing of conflicting interests is the real task that has been provided to the three organs of the state viz. legislature, executive and judiciary in the scheme of Indian parliamentary form of government where judiciary is playing the role of protector and guarantor of individual rights. This article aims at analyzing the concept of preventive detention and different preventive detention laws in India and role of judiciary.  

Preventive detention: Meaning and Concept

The word ‘preventive’ in common parlance means to stop a thing before happening and ‘detention’ means the state of being kept in prison so as to prevent a person from committing a crime. Together the term preventive detention means to detain a person to withhold him before he commits a crime on the basis of suspicion based upon his past conduct or on some other grounds. The idea is based upon the policy from the famous saying that, “prevention is better than cure.” 

      Since the idea involves infringement of personal liberty of an individual which is the most cherished fundamental right, detention has to be based upon some valid grounds like public order, public security, security of the state and the like. Preventive detention is imprisonment that is not imposed as punishment for a crime but in order to prevent a person from committing a crime, if that person is likely to commit a crime.

   Preventive detention, as we understand the term in India implies detention of a person by executive order with a view to prevent him from endangering the security of the state, disturbing  public order or essential supplies and services or adversely affecting other specified objects of public interest. In A.K.Gopalan v. State of Madras[1] Patanjali Sastri,J. while explaining the necessity of preventive detention law observed, “This sinister- looking feature so strangely out of place in a democratic constitution, which invests personal liberty with the promises of its preamble, is doubtless designed to prevent the abuse of freedom by anti-social and subversive elements which might imperil the national welfare of the infant republic.”   

Preventive detention concept under Indian Constitution:-

Article 22 of Constitution of India provides protection against arrest and detention in certain cases. Article 22(1) and (2) apply to persons arrested or detained under a law otherwise than a preventive detention law. Clause (4) to (7) apply to persons arrested or detained under a preventive detention law. The procedural requirements of article 22 are all mandatory and the failure to comply with any of them would render the detention invalid. Though the Constitution recognizes the necessity of laws as to preventive detention, it also provides certain safeguards to mitigate their harshness by placing fetters on legislative power conferred on the legislature and to prevent misuse of the power by executive. Article 22(4)   says that law relating to preventive detention shall not authorize the detention of a person for a period longer than three months detention unless in the opinion of advisory board there is a sufficient cause for longer detention. Clauses (4) to (7) provide the procedure which is to be followed if a person is arrested under the law of preventive detention. Advisory board is to consist of persons who are or have been qualified to be appointed as judges of High Court. Proviso says that if maximum detention period is prescribed by law made by parliament then a person can’t be detained beyond that period. Clause (5) deals with communication of grounds of detention to the detenu as soon as may be and it is mandatory to afford him earliest opportunity of making a representation against the order. Clause (6) says that if authority making the order of detention considers necessary in public interest to withhold the disclosure of facts then it can do so. Clause (7) gives parliament power to prescribe by law the circumstances under which and also class or classes of cases in which a person can be detained for a period longer than three months without opinion of advisory board and parliament can also prescribe the maximum period for which any person can be detained under preventive detention laws and also procedure to be followed by advisory board.            

 Major Preventive Detention Laws in India:-

At present the following Acts relating to Preventive detention are in force in India:-

1. Unlawful Activities ( Prevention) Act,1967
2. Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974
3. The National Security Act,1980
4. The Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act,1980
5. The Prevention of Illicit Traffic in Narcotics drugs and Psychotropic Substances Act,1988

Role of Judiciary:-

 Mukherjea J. In A.K.Gopalan v.State of Madras[2] referring to preventive detention oberseved :

                     “No country in the world that I am aware of has made this an integral part of their Constitution as has been done in India.” In this case Gopalan had been detained under preventive detention Act on the grounds that the court would not know because section 14 of the Act forbade Gopalan from disclosing those grounds to any court on pain of prosecution and punishment. Therefore entire argument in the case had to be directed against the constitutionality of the various provisions of the Act. The majority held that the substantive freedom from imprisonment was guaranteed in Article 21.The expression personal liberty it was held meant freedom from any kind of physical coercion including arrest and detention. It was held that a detenu cannot claim the freedoms guaranteed by Article 19(1) (d) it was infringed by his detention and the validity of preventive detention.   

    In Machinder Shivaji v. King [3] the order of detention was made on the ground the appellant had been working for communist party of India and was spreading violence in different parts of the country, the appellant was assisting and associating with a prominent member of the party who had gone underground and from secret information received it came out that he is also likely to go underground and he was arrested. It was held that so long as detention was for maintenance of ‘public order’ it was intra vires the provincial legislature and once legislature is found to have acted within its powers, the court is not concerned with the terms and conditions on which the executive authority has been empowered to order preventive detention. The court however reserved to itself to look into the ‘grounds’ of detention supplied by the government to the detenu  for a limited  object viz, to  see if they are relevant to the object sought to be achieved.

In State of Bombay v. Atmaram Shridhar Vaidya[4]  unlike Goplan’s case the grounds of detention were made available to the court. The government of state of Bombay released the grounds and the material on which the detention order was based in three instalments. The main contention of behalf of Vaidya was that the state of Bombay had not fulfilled their constitutional obligation under Article 22(5) to communicate to him “as soon as may be” the grounds of his detention and to give him the “earliest opportunity’’ of making a representation against the order. It was held that there was a difference between the grounds and the material supporting the grounds by their very nature the grounds are conclusions of facts and not complete detailed recital of all the facts. Grounds may be sufficient for the authority but may not be sufficient for detenu to make a representation effectively. Grounds may be supplied in parts but it should be to further explain the grounds and not a new ground. It was further held that it is not for the court to sit in the place of the central or state government and try to determine if it would have come to the same conclusion ass the central government or the state government. This is a matter of subjective satisfaction of the government and that it cannot be substituted by objective test in the court of law. All the grounds must be communicated in one instalment. Once the grounds have been communicated fresh, new, additional grounds can’t be supplied later on.

In Ujagar Singh v state of Punjab[5] it was held that the supply of additional grounds with an inordinate delay of about four months was much too late to cure the irregularity of the first communication which had already resulted in denial of the safeguard of making an effective representation against the detention order.                    

  In Shibban lal Saxena v. state of U.P.[6]  the court impressed upon the government the imperative necessity of  complying with the procedural condition of communication of the grounds as soon as possible and  not to sleep over the matter, or that matter invent fresh grounds in a make belief communication  preceded by the scanty formalistic communication containing merely unreal grounds.  

 In Dr.Ramkrishan Bhardwaj v. state of Delhi[7] Apex court declared the detention order invalid on the grounds of vagueness of the grounds of detention.

In A.K. Roy v. Union of India[8] popularly known as NSA case Supreme Court by 4:1 majority upheld the Constitutional validity of NSA and ordinance which preceded the Act. The court held that Act was neither vague nor arbitrary in its provisions providing for detention of persons on certain grounds as acting in a manner prejudicial to the ‘defence of India’, ‘security of state’ and  to ‘relations with foreign power.’

In Hitendera Vishnu Thakur v. State of Maharashtra[9] The Apex court held that the designated TADA court has no power to remand a TADA accused to custody if the police fails to complete the investigation within six months to one year. Irrespective of the gravity of offence the accused has under S. 167(2) Cr.P.C. and S. 20(4) (b) of TADA, indefeasible right to be released on bail if the police fails to complete investigation within 180 days or with the permission of the court in one year. It was held that accordingly accused was entitled to bail.   

Analysis:- 

Judiciary is certainly acting as a protector and guarantor of the individual liberty.  Apex court in the case of Dropti Devi v.Union of India[10] held that the power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding.it does not overlap with prosecution even if it relies on certain facts for which may be launched. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is not a bar to prosecution.    

On the touchstone of constitutional jurisprudence as reflected by Article 22 r.w. Aricles 14, 19 and 21, there is no constitutional mandate that preventive detention cannot exist for an act where such act is not a criminal offence and does not provide for punishment. An act may not be declared as an offence under law but still for such an act which is an illegal activity, the law can provide for preventive detention if such an act is prejudicial to the state security.  After all the traditional concept of preventive detention is not to punish a person for what he has done but to prevent him from doing an illegal activity prejudicial to the security of the state.  

Association in pre-trial preventive detention is in conflict with two notions basic to our criminal justice system: that illegal acts are to be deterred by the threat of subsequent punishment rather than by prior confinement and that imprisonment should not be imposed without conviction of a crime. In some cases these principles may be overweighed by the public interest in safety or the administration of justice. If the release of dangerous defendants prior to the trial does present an alarming threat of harm to society, detention of those defendants would probably be justified.         

 Conclusion and Suggestions:-

Today’s citizens are demanding greater protection and the legislators are seeking new ways to provide it but use of criminal justice system as the primary mechanism for preventing future crimes seriously perverts the goals of our institutions of justice. As the crime is on the rise, greater is the need to prevent it beforehand. As discussed above judiciary has come down heavily upon the violators of personal liberties and particularly in the cases related to preventive detention laws. Apex court in various pronouncements has held that grounds of detention must be communicated to the detenus as soon as may be and all the grounds of detention must be supplied at once not in parts and in language understood by detenu. Further the procedural safeguards provided by Article 22 and various preventive detention Acts must be complied with.  It is always open for a detenu or anyone on his behalf to challenge the detention order by way of habeas corpus on any ground available to him. The judicial review of detention order is always available.  It can be safely concluded that democracy needs protection at both the ends. It needs to be protected against the uncontrolled excessive authority in the hands of governors, equally it needs protection against internal forces seeking to subvert the democratic constitution.  Hence the possibility of such exploitation of Constitution makes preventive detention a necessity in order to deal with such kind of subversion in advance.

[1] AIR 1950 SC 27

[2] Supra note1

[3] AIR 1950 FC 129

[4] AIR 1951 SC 157

[5] AIR 1952 SC  350

[6] AIR 1954 SC 179

[7] AIR 1953 SC 318

[8] AIR1982 SC 710

[9] (1994) 4 SCC 602

[10] (2012) 7 SCC 499