Preventive detention laws in India curb the fundamental rights of persons for acts they may or may not commit. It is time to do away with such laws and the constitutional basis provided to them under Article 22, writes Mihir Desai.
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THE Constitution of India gave us a bundle of rights in the form of fundamental rights and directive principles.
Under the Constitution we are provided with: positive and negative rights; individual and collective rights; and civil, political, cultural and socio economic rights.
A jarring feature of the Constitution: Article 22(3)–(7)
But one jarring feature of the Constitution has been Article 22 (3)–(7) pertaining to preventive detention. It is even more upsetting that the provisions find their place in the chapter on fundamental rights.
Article 21, as we all know, guarantees the right to life and personal liberty.
Article 22(1) provides that any person who is arrested must be informed about his grounds of arrest and must have a right to consult and be defended by a lawyer of his choice.
Article 22(2) provides that every arrestee be produced before the nearest magistrate within 24 hours and not be detained beyond this period without the authority of a magistrate.
Preventive detention has been constitutionally permitted and the maximum period for which a person can be detained is left for the Parliament to decide, rather than being stated in the Constitution.
Article 22(3) then comes into play and says that nothing in Articles 22(1) and (2) will apply to a person who is arrested or detained under any law providing for preventive detention.
Article 22(4) curtails the power of detention to some extent by stating that no law shall allow such detention beyond three months unless an advisory board has opined that there is sufficient cause for such detention.
Even here, sub clause (7) provides that the Parliament by law may provide for detention without reference to the advisory board beyond the period of three months.
The maximum period for detention can also be prescribed by Parliament through a law.
In short, preventive detention has been constitutionally permitted and the maximum period for which a person can be detained is left for the Parliament to decide, rather than being stated in the Constitution.
What the Constitution does is to permit preventive detention but only if the Parliament or the state legislatures make laws to this effect.
Of course it was open at both levels not to make any law pertaining to preventive detention but that is not what has happened.
This enabling provision has been metamorphosed into multiple laws allowing preventive detention of tens of thousands of people.
Also read: Preventive detention: The police State and the need to ‘police’ the State
It is one thing to arrest a person for committing an offence or attempting to commit an offence, charge him and convict him.
It is altogether different to arrest a person not because he has committed an offence but there is some likelihood of his committing an offence (even though there is no preparation or attempt of committing it).
This goes against all tenets of international human rights law as also against presumption of innocence and right to personal liberty.
Pre-constitutional history of preventive detention
In 1919, the British enacted a law called The Anarchical and Revolutionary Crimes Act.
It was a preventive detention law which allowed the government to detain suspects for up to two years.
This was the infamous Rowlatt Act.
A meeting at Jallianwala Bagh was organised to protest against this law, which culminated in a massacre.
The Indian National Congress protested against this law and there were major agitations which finally led to the law being repealed after a few years.
At the start of the Second World War, another preventive detention law was brought in through Defence of India Act, 1939 and Defence of India Rules.
It is altogether different to arrest a person not because he has committed an offence but there is some likelihood of his committing an offence.
Again, there were massive protests against this law by the Independence movement but the law continued.
During the Second World War, multiple Ordinances allowing preventive detention were passed and these continued even after Independence, till the Constitution was put in place.
In the Constituent Assembly there were undoubtedly debates around preventive detention but the provision was ultimately brought in.
The belief seems to be that preventive detention cannot come in without a legislative action and the legislature will enact such a law only in extreme situations.
This faith has of course been belied by subsequent events.
The legislative power to enact preventive detention laws is both with Union and state legislatures.
The Constitution of India came into effect from January 26, 1950 and by February, 1950, the Parliament had come out with its first Preventive Detention Act.
In turn, this led to the first Constitutional case before the Supreme Court in 1950, namely A.K. Gopalan versus State of Madras.
The Supreme Court upheld the law barring one Section and thus gave a stamp of approval to preventive detention.
It should be noted that the 1950 Act had a one-year sunset clause, but it was periodically renewed until December 31, 1969, when it was finally allowed to lapse.
Soon after, by June, 1971 another preventive detention law namely the infamous Maintenance of Internal Security Act (MISA) was enacted which was the central enactment used to detain thousands of people during the Emergency.
The law was amended during the Emergency to allow for protracted preventive detention.
Once the Emergency was over and the Janata Party came to power, they did two things.
First, they repealed MISA.
Second, The Constitution (Forty-fourth Amendment) Act, 1978 was brought in, through which many of the amendments to the Constitution that had been enacted during Emergency were repealed.
The 44th amendment also sought to amend the provisions concerning preventive detention.
Also read: Preventive detention: Holding back the rule of law
It prescribed that an ‘advisory board’ had to sanctify a decision of preventive detention within two—– months and this board would have three members— one a serving high court judge and the other two retired high court judges.
Soon after, by June, 1971 another preventive detention law namely the infamous Maintenance of Internal Security Act (MISA) was enacted which was the central enactment used to detain thousands of people during the Emergency.
The amendment also did away with Article 22(7), which permitted detention without reference to the advisory board if the law so provided. Thus, reference to the advisory board became mandatory.
The amendment was passed by both houses of Parliament and received the President’s assent on April 30, 1979. However it was to come into force from the date on which the Union government notified it.
While other provisions of the 44th amendment were notified by the Union government on June 19, 1979, the preventive detention provision was not so notified and even after 44 years of this amendment receiving parliamentary and presidential approval, it has yet not been notified.
Thus, Article 22 remains unchanged.
In 1980, the Indian National Congress came back to power and enacted the National Security Act, 1980.
This is a permanent law having no sunset clause and continues till date.
As per the 1980 Act, the maximum period of preventive detention can be up to one year.
The law was challenged in the Supreme Court and in the Constitution Bench decision of A.K. Roy, etc. versus Union Of India, 1980, it was upheld. This despite A.K. Gopalan having been overruled.
Under this law, there are various grounds of preventive detention, including security of the State, maintenance of public order, maintenance of supplies and services essential to the community.
Other Central laws that provide for preventive detention are: Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, The Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980.
Laws made for preventive detention at the state level are even more damaging.
In 1970, there was no Central preventive detention law, and the MISA was yet to be enacted.
In that year itself, Rajasthan, Madhya Pradesh, Maharashtra, Andhra Pradesh and West Bengal passed preventive detention laws. The Rajasthan Act was later repealed by the 1996 Act.
In the 1980s, a spate of preventive detention laws were passed by various states.
As of now, there are at least 20 state laws permitting preventive detention.
Every year, the number of persons detained under these laws is increasing.
In the last five years, detention rates have skyrocketed.
Some states such as Jammu and Kashmir (as it existed), permit preventive detention of up to two years.
The categories of people who can be arrested are no less than 24, including goondas, digital data and copyright pirates, ‘dangerous persons’, ‘land grabbers’, ‘anti-social elements and communal offenders.
In countries such as the US and the UK, there is no provision for preventive detention during ordinary non-emergency times.
While the Indian Constitution permits preventive detention, it is always subject to laws passed either by the Parliament or state legislatures, which can always refuse to enact such laws or provide for such laws to be operational only during times of emergency.
While the courts do give priority to detention matters, the quashing happens after a person has been detained for a long period.
However, preventive detention has been normalised and is increasingly being used against political opponents, human rights defenders and minorities.
The courts have been quashing many detention orders by viewing the conditions very strictly (such as not providing a translated copy of grounds of detention, not providing legible copies of grounds and not disposing of representation in good time).
Also read: The ‘lawless law’: A Constitutional consideration of preventive detention in Jammu and Kashmir
While the courts do give priority to detention matters, the quashing happens after a person has been detained for a long period.
The Supreme Court’s interpretation of Article 22 also leaves much to be desired.
Even those laws which do not directly speak about preventive detention such as Terrorist and Disruptive Activities (Prevention) Act, 1987, The Prevention of Terrrorism Act, 2002, The Unlawful Activities (Prevention) Act, 1967 and The Prevention of Money-Laundering Act, 2002 effectively act as preventive detention laws.
This is because most of these laws have very harsh bail conditions.
Those arrested are not in jail because of the crimes they have allegedly committed as that can only be proved at the trial.
The harsh bail conditions can only be understood as continued detention to ensure that they do not commit any further crime. This is nothing else but a euphemism for preventive detention.
In April, 2023 the Supreme Court in Pramod Singla versus Union of India observed: “Laws that have the ability to confer arbitrary powers to the State, must in all circumstances, be very critically examined and must be used only in the rarest of rare cases.”
The court furthered observed: “In cases of preventive detention, where the detenue is held in arrest not for a crime he has committed, but for a potential crime he may commit, the courts must always give every benefit of doubt in favour of the detenue, and even the slightest errors in procedural compliances must result in favour of the detenue.”
No civilised society should be allowed to imprison people not for crimes they have committed but crimes they may or may not commit.
If a constitutional amendment is at all needed, it is to do away with Article 22(3)–(7).
