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‘Preventive detention no longer viewed as an exceptional measure’

Safeguards to prevent the abuse of preventive detention law must be given effect in letter and spirit, says a legal scholar on the contemporary concerns about the widespread resort to it by the executive.

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PREVENTIVE detention does not elicit interest as much as it used to. It is not because there is no preventive detention now; the lack of interest is also not a result of the government resorting to it rarely. It is, on the contrary, an outcome of the normalisation of the preventive detention powers, according to Dr. P Puneeth, assistant professor of law at the Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi.

Dr. Puneeth was speaking at a lecture on ‘Preventive Detentions in India: Constitutional ‘Sanctions’ and ‘Safeguards’’, organised by the School of Law, Governance and Citizenship, Dr. B.R Ambedkar University Delhi on Wednesday.

Executive discretion in preventive detention is writ large

Dr. Puneeth began his lecture by saying: “Preventive detention is no longer viewed as an exceptional measure to be resorted to very sparingly. Its continuous use has normalised that”.

Referring to data from the National Crime Records Bureau (‘NCRB’), Dr. Puneeth pointed out that 1.1 lakh people were detained or placed under preventive detention in 2021 alone. It is a 23.7 per cent rise compared to the previous year.

The NCRB has only started collecting data on preventive detainees only since 2017. According to the NCRB’s 2021 data, the most preventive detention orders were passed by Tamil Nadu, followed by Telangana and Gujarat. The highest number of detainees is in the age group of 18-30 years of age.

Dr. Puneeth, while referring to the above statistics, says that these people were detained not because they had committed an offence or that they have been found guilty in accordance with the due process of law, and not because they have been accused of committing crimes punishable under any law.

“These people are detained on mere suspicion that they are likely to do something that might prejudice a certain state or collective interest. The detentions are based on the subjective satisfaction of the detaining authorities…”

One can say, preventive detention subjects civil liberties to the subjective satisfaction of the executive authorities. This is why preventive detention is considered the arch enemy of individual libertyDr. Puneeth told the audience.

The Constitution authorises both the Parliament and state legislatures to enact preventive detention laws that can be enforced both during war and peacetime. In the formative years, the need may have been felt to permit preventive detention even during peacetime due to unstable law and order situations, he said.

Dr. Puneeth said that there were conditions that warranted the need for writing in the Constitution certain extraordinary provisions. Preventive detention is one of them, the other two being martial law and emergency provisions, he said. Adding a caveat, he said that the incompatibility between the preventive detention provisions and individual freedoms was acknowledged by Justice M. Patanjali Sastri of the Supreme Court as early as in A.K. Gopalan versus State of Madras (1950).

Current detention laws don’t have sunset clauses any more

Dr. Puneeth, while referring to recent preventive detention laws such as the Unlawful Activities Prevention Act, 1967, the National Security Act, 1970 (the main law on preventive detention) and the Maintenance of Internal Security Act, 1971 (now repealed), said that these laws do not have sunset clauses, unlike the first post-independence legislation on preventive detention, the Preventive Detention Act, 1950.

According to him, the sunset clause ensures the expiry of the legislation once the objective of enactment is fulfilled. These laws are not intended to become a permanent feature of the legal framework. All extraordinary legislations, post-independence, such as the Terrorist and Disruptive Activities (Prevention) Act, 1987 also had a sunset clause, he stated.

All these preventive detention laws and anti-terror legislations have become a permanent feature of India’s legal system, even though as per the original understanding, they were not supposed to be, Dr. Puneeth noted.

Too many preventive detention legislations

Apart from National Security Act, we have the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act, 1988; the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974; the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980; and the Jammu & Kashmir Public Safety Act, 1978, to name a few, he said.

Apart from this, almost every state has a Goondas Act, such as the U.P. Control of Goondas Act, 1970, he added.

For what purpose did the Constitution sanction preventive detention?

The powers to enact preventive detention laws are located in Article 246 read with Entry 9, Union List (Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India; persons subjected to such detention) and Entry 3, Concurrent List (Preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention) in the Seventh Schedule of the Constitution.

As long as there exists some reasonable nexus between the law in question and any of those grounds of entries, the same cannot be said to be beyond legislative competence, he explained.

He then asked whether Parliament could enact preventive detention laws on grounds not connected to any of these six grounds enumerated in these Entries in the Seventh Schedule. Answering that question himself, he referred to a rule of interpretation which suggests that if something is mentioned explicitly, then those not enumerated explicitly are excluded.

He added, however, that the same view was not shared by the Supreme Court.

The Supreme Court’s nine-judge Constitution bench in Attorney General for India versus Amrratlal Prajivandas & Ors (1994), while upholding the constitutionality of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, went on to observe through a unanimous judgment: “[W]here the legislative competence of the Parliament to enact a particular statute is questioned, one must look at the several entries in list-II to find out (applying the well-known principles in this behalf) whether the said statute is relatable to any of those Entries. If the statute does relate to any of the Entries in list-II, no further inquiry is necessary. It must be held that Parliament is competent to enact that Statute…”

Dr. Puneeth then asked: “If constitutional framers were to give wide powers to the Union on preventive detention, would they have included two specific entries on it?”

The court’s observation that Entry 9, List I and Entry 3, List III are not exhaustive of the legislative area of the Parliament or State legislatures to enact preventive detention laws does not seem to be in accordance with the intention of the framers of the Constitution.

“That is one of the reasons I think the interpretation given by the Supreme Court is not in accordance with the intent of the constitution makers. The constitution bench has dramatically and unjustifiably expanded the power to enact preventive detention laws,” he noted.

What safeguards have been accorded by the Constitution?

Referring to Article 22 of the Indian Constitution, Dr. Puneeth questioned the efficacy of the constitutional safeguard against the prevention of detention. He told the audience that Article 22(4) states that no person can be detained for more than three months unless the same is authorised by the Advisory Board constituted under this provision.

He says that the executive authority can do whatever it wants for those three months. If a person is to be detained for more than the specified time period and if the executive authority communicates its reasons, the advisory board has no business to question how much longer than three months the person will be detained, he informed.

Although Section 3 of the Constitution (Forty-Fourth Amendment) Act, 1978 suggested strengthening these safeguards such as decreasing the detention period to two months and appointing serving or retired judges to the advisory board, none of that was enforced, Dr. Puneeth lamented.

Despite the importance of this provision, this fundamental right has not been elevated as a non-derogable fundamental right, he concluded.

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