CONTINUOUS INTERNAL ASSESSMENT – I

SOCIO - ECONOMIC OFFENCES OPTIONAL-2

RE-EVALUATING PREVENTIVE DETENTION LAWS IN INDIA : BALANCING NATIONAL SECURITY

CONCERNS WITH PROTECTION OF CIVIL LIBERTIES

Submitted by- ROSHAN JAJU

Roll No.- 123

Semester- IX C

Submitted to- DR. Archana Shyam Gharote

Faculty- SOCIO - ECONOMIC OFFENCES (OPT-2)

Date- 20/02/2024

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 INTRODUCTION

Preventive detention is the act of detaining an individual to prevent them from causing damage
or being a threat to society. Detention under Article 22(3) is solely based on suspicion. India,
a democratic nation that values equality, liberty, and justice, has raised concerns over the
inclusion of Article 22 in its Constitution. The presence of the Article dates back to the
colonial history of the country, sparking much discussion. India is among the few countries
with a significant history of preventative detention globally. Preventive detention is a
controversial issue due to instances of human rights breaches by law enforcement. 1

It is considered one of the chaotic and draconian laws inherited from the British colonial rule.
Preventive detention laws originated from the Bengal Regulation Act of 1818, allowing
authorities to arrest individuals based solely on suspicion.

This legislation applied to the three Presidencies of Calcutta, Bombay, and Madras during the
British colonial period. In 1919, the Rowlatt Act, sometimes known as the 'Black Law', was
implemented, allowing indefinite incarceration based solely on suspicion without a formal
trial or judicial review. Despite the efforts of our ancestors to eliminate this Act, it still exists
in our country.

1
Preventive detention and Personal Liberty in India. Available at:
https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1374&context=mjil (Accessed: 20 February
2024).

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 RESEARCH OBJECTIVES:

• To understand the meaning of preventive detention law

• To understand the provisions of preventive detention law

• To analyse the law relating to preventive detention law

RESEARCH QUESTIONS:

1. “What do we mean by a preventive detention law?

2. What do we mean by article 21?

3. Whether the Constitution of India has the provions relating to preventive detention
law?”

RESEARCH METHODOLOGY:

“The research work has been done using the descriptive methodology and the same is doctrinal
and analytical in nature.

As to the source of the study, second hand data has been taken into account. The necessary
information has been gathered from published sources such as books, Journals, Articles,
Newspapers, Magazines, etc.”

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 DISCUSSION/ANALYSIS

NATURE OF PREVENTIVE DETENTION LAW

The Supreme Court elucidated the concept of preventative detention in the case of Khudiram
Das v. The State of West Bengal and Ors.2 as follows:

1. The power of detention serves as a preventative measure. It is not involved in any form
of punishment. It is taken as a precaution to prevent harm to the community.
2. Every preventive measure is founded on the notion of anticipating and preventing
actions that individuals would likely engage in if not restricted. Therefore, such
measures inherently rely on suspicion or anticipation rather than concrete proof.
3. The detaining authority must consider whether the individual, based on their past
behavior and current circumstances, is likely to act in a harmful way. If so, they must
decide if it is necessary to detain the individual to prevent such behavior.
4. These issues cannot be objectively determined and are not meant to be evaluated based
on objective criteria.

IS THE STATE'S ACTION JUSTIFIED?

Article 22 (3) of the Indian Constitution states that if someone is arrested or held by a
legislation allowing preventative detention, they do not have the protection against arrest and
custody provided in Article 22 (1) and 22 (2). However, the authority granted to the state is
not unlimited. It has been restricted by constraints.

1. An Advisory Board must determine within three months if there is sufficient justification
for detention.

2
1975 AIR 550

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2. Detention can be prolonged beyond three months if Parliament enacts a specific statute
specifying the circumstances under which detention can surpass three months and
indicating the duration of such imprisonment.
3. The authorities holding an individual must provide them with the earliest chances to make
a representation against their custody.

These constraints ensure that there is adequate protection for the inmate to prevent the state
from exceeding its authority. Human rights advocates may argue that disregarding Clauses 1
and 2 of Article 22 might violate fundamental rights. However, detainees have the right to be
informed unless it poses a risk to public interest, and detentions are conducted with the welfare
of people in consideration.

i. A.K Gopalan v. State of Madras3The Supreme Court examined the constitutionality of

the Preventive Detention Act, 1950, in relation to the Constitution of India for the first
time in the case A. K. Gopalan v. the State of Madras4. This case marked the first
instance where the Supreme Court was tasked with interpreting the Constitution that
established it. The Court's majority opinion said that Article 21 guarantees the freedom
from incarceration, specifying that no one may be deprived of their life or personal
liberty except following the legal procedure.

Personal liberty refers to freedom from any form of physical compulsion, such as arrest and
incarceration. The majority ruled that Article 21 ensured freedom from imprisonment and
dismissed the petitioner's argument that Article 19 (I) (d) applied to preventive detention,
which allowed freedom of movement in India with certain restrictions.

The Court's attempt to decide if preventive detention and the provisions of the Preventive
Detention Act, 1950, might be considered legitimate limits on liberty was unsuccessful.

The Court determined that Article 21 does not grant the authority to the Courts to assess the
propriety and fairness of the procedure established by the legislature; it only ensures that the
method outlined by the legislation is correctly followed.

3
1950 AIR 27
4
1950 AIR 27

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In this instance, the Supreme Court rejected the possibility of introducing procedural
protections by judicial implication in cases of preventive or punitive detention. The procedure
for detention was to be governed solely by criteria explicitly outlined in the Constitution, such
as those in Article 22. The Court determined that Fundamental Rights are autonomous and that
Article 19 does not apply where Article 21 is applicable. Article 19 is applicable to an
individual who is free, not to someone who is in preventive custody. The technique could not
be contested, regardless of its reasonableness or adherence to natural justice. In RC Cooper v
Union of India5, the court connected Article 19(1)(f) with Article 31(2) to offer protection to
private property. Why can't Article 19 be connected with Articles 21 and 22 if Article 19(1)(f)
and Article 31(2) may be linked?

In the case of Sambhu Nath Sarkar v. State of West Bengal6, the Supreme Court
acknowledged that the majority in the RC Cooper case deemed the majority decision in the
Gopalan case to be wrong. The Court finally connected Articles 19, 21, and 22 in the case of
West Bengal v Ashok Dey.7 This decision upheld the legality of preventative detention due to
the turbulent law and order situation in the state, deeming the statute adopted to be in the
public's best interest.

The case of Maneka Gandhi v. Union of India8 supersedes the Gopalan case. Personal liberty
was interpreted quite broadly. The prevailing opinion was that Article 21 does not override
Article 19. Any law that restricts a person's freedom must comply with not just Article 21 but
also other sections of Part III of the Constitution. Articles discussing several basic rights in
Part III of the Constitution are not completely distinct and do intersect in various instances.
They are all components of a unified plan inside the Constitution. Their streams need to
combine to create a great river of unhindered and unbiased justice. Isolating different parts of
human freedom for protection is neither practical nor advantageous. In this case, the Court
established the concept of the Golden Triangle, emphasizing the interconnectedness of the
provisions in Part III of the Constitution. Legislative laws must not violate any rights outlined

5
1970 AIR 564
6
1973 AIR 1425
7
1972 AIR 1660
8
1978 AIR 597

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in Part III of the Indian Constitution. The Supreme Court's establishment of substantive due
process allowed courts to broaden the narrow interpretation of the right to life under the
Constitution to encompass many unspecified rights. Based on Article 21, these rights
encompass topics such as prisoner rights, women and children protection, and environmental
rights.

SPECIFIC PREVENTIVE DETENTION LAWS

Preventive detention's power differs from traditional safeguards on executive power. It

addresses different areas than regular criminal actions of the state. The Preventive Detention
Act, 1950, focused on matters related to the country's diplomatic relations with foreign nations
and its national security.

The federal government and state government have the authority to imprison individuals who
are engaging in activities that threaten India's defense, international relations, public order, and
the supply of crucial commodities. The district magistrate has the authority to issue an order
on this matter. There are precautions in place. The magistrate must notify the state government
of the order, and the state government must ensure that the proper procedures outlined in the
Act and Article 22 have been followed.

The state government must guarantee that the central government is informed of the decision
within seven days of the preventative detention being implemented. The Supreme Court has
also ruled on the constitutional legality of the preventative detention Act. 1950 affirmed that
government-sanctioned preventative detention is permissible and any law supporting it must
adhere to the Constitution. Examining the Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 1974 reveals that the state can detain individuals preventively if
the government believes they pose a threat to the economic security of the nation.

The Supreme Court has interpreted national security broadly, stating that a fragile and
susceptible economy might harm the country's security.

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 PREVENTIVE DETENTION LAWS NOT VIOLATIVE OF ARTICLE 21.

The Court has established standards in cases to prevent the State from violating the rights and
freedoms of the citizenry. The courts is careful in monitoring the preventive detention statutes
to prevent the State from exceeding its authority due to its combustible character. The Court
has ruled that the grounds for detention cannot be disputed, although individuals have the right
to examine the issue under Article 32 and Article 226. The Courts are cautious when using their
considerable equitable and discretionary jurisdiction in certain circumstances. The Court has
ruled on several cases that challenge the subjective judgment of the executive branch.

In the case of Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors,9
the Court determined that the preventive detention statute must comply with both Article 22
and Article 21. Considering the unique nature of preventive detention compared to punitive
detention, the limitations imposed on an individual under preventive custody should be kept to
a minimum to ensure the detention's efficacy.

9
1981 AIR 746

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 CONCLUSION

Despite being distasteful to advocates of personal freedom, it is important to note that the
authority to enact preventive detention laws during peacetime was included in the
Constitution by its framers, many of whom had firsthand experience with such laws during
the fight for independence. Regardless of one's personal beliefs on individual freedom, it is
necessary to acknowledge and abide by the regulations outlined in the Constitution, which
were established by the wise judgment and extensive knowledge of the Constitution's
creators. Over the years, the judiciary has consistently interpreted the Act and its orders
strictly to ensure that any unexplained errors of omission or commission benefit the
detainee. Consequently, the judiciary has either invalidated the order or deemed its further
implementation unlawful. Preventive detention is a reprehensible injustice that completely
undermines freedom and self-rule. However, democracy requires protection on all fronts. It
must be safeguarded from unchecked and disproportionate power held by the government.
Does it require protection against internal forces attempting to undermine the democratic
constitution by using it as a shield for their illicit organization and unlawful actions? To
avoid exploitation of the Constitution, it is essential to grant Parliament and state legislatures
the authority to address subversion beforehand, necessitating the use of preventive
detention.

The state, by its sovereign power and administrative powers, ensures that the lives
and personal liberty of the people are protected. The constitution ensures that
preventive detention laws are just, fair, and reasonable. The value of a group of
individuals with greater numbers takes precedence over the worth of a single
individual who is the catalyst for the activity to occur initially. The preventive
detention rules are fair and reasonable, aiming to preserve the right to life and
personal liberty of many individuals, and are in accordance with the Indian
Constitution.

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