Introduction

This article deals with the law of preventive detention in India. Preventive detention authorises any police officer to arrest or detain any person who is suspected to be committing a crime in the future in order to prevent him from doing so. Under preventive detention laws, a person could be detained for extended periods ranging from three months to two years which could further be renewed, sometimes without even filing of FIR, framing of charges or trial. This authority is provided to police officers under various central legislations like The Code of Criminal Procedure, 1973 [“CrPC”], Unlawful Activities Prevention Act, 1967 [“UAPA”] and National Security Act, 1980 [“NSA”]. Apart from these there are also State legislations for most of the states providing for preventive detention. These include The Gujarat Prevention of Anti-Social Activities Act, 1985; Jammu and Kashmir Public Safety Act, 1978; The Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, [Immoral Traffic Offenders, Slum-Grabbers and Video or Audio Pirates] Act, 1985 (popularly known as the ‘Goondas Act’); The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug offenders, Forest offenders, Goondas, Immoral Traffic Offenders, Slum grabbers and Video Pirates Act, 1982; and many more.

This article holds relevance in the light of the blatant use of this law during the recent times. For instance, merely within 22 days of the protests against the Citizenship Amendment Act, 2019; 5558 people were kept in preventive detention in Uttar Pradesh. Further, in Uttar Pradesh, out of total arrests made under NSA in 2020, more than half of them were for the petty cases of cow slaughter. As per the government data, a total of 67,084 people were detained in 2017 under preventive detention laws in India. This number has further increased from 98,768 in 2018 to 1,06,612 in 2019.

Given the steep rise in the number of the cases of preventive detention in India, one cannot fail but observe the similarity of preventive detention laws with oppressive colonial legislations. This article discusses the development of preventive detention laws in British India which were heavily criticised then but have yet found their place in the Constitution of the Post-Colonial independent India. With the help of specific incidents, the author tries to establish how preventive detention laws have been used for politically motivated causes and how the law of preventive detention is becoming a tool in the hands of the ministers to suppress the dissent.

History of preventive detention laws

The law of preventive detention has been used since long by the oppressive regimes as a tool to suppress the dissenters. Tracing back the history of India, the British government enacted numerous laws which can be compared with the present preventive detention laws of the country. For example, The Defence of India Act, 1915 was a law enacted during the world-war I that allowed the suspects to be tried by special tribunals, whose decisions were not subject to appeal. Under this law, they arrested the freedom fighters, activists, dissenters and other propagandists whom they identified as the suspected criminals and they were detained for the duration of the trial. On the similar lines was introduced the Anarchical and Revolutionary Crimes Act, 1919 which was more popularly known as the Rowlatt Act. This act allowed the government to arrest and detain the suspects without trial for upto two years. The introduction of Rowlatt Act resulted in widespread opposition and nationwide protests including Rowlatt Satyagraha, the movement led by Mahatma Gandhi in opposition to the Rowlatt Act. Another example of such preventive detention law is the Armed Force (Special Powers) Ordinance, 1942. It was an ordinance which conferred vague and spurious powers to the armed forces to arrest and use force and even terminate the life of civilians on mere suspicion.

Pre-independence v/s post independence India

In British era, such preventive detention laws were widely criticized by the Indians and various movements were launched after the Rowlatt Satyagraha in opposition to them. The British government always tried to suppress the political dissenters by using such laws like preventive detention, sedition etc. After the independence, it was widely expected that such laws would no more operate in the country since they were the very laws against which our freedom fighters had been fighting. However, even after the independence, the laws of preventive detention were not done away with and formed a part of the new constitution. The constituent assembly had heated debates on the justifiability of these laws.

Sh. Mahavir Tyagi was one such member of the constituent assembly who vehemently opposed the laws of preventive detention. A brief extract of his speech from the debate is quoted below:

“Sir, Dr. Ambedkar will please pardon me when I express my fond wish that he and other members of the Drafting Committee had the experience of detention in jail before they became members of the Drafting Committee (…) There might come a time when these very clauses which we are now considering will be used freely by a Government against its political opponents.”.

~Sh. Mahavir Tyagi, Member, Constituent Assembly

Unfortunately, the Constituent assembly of India retained the preventive detention laws in the Fundamental Rights part of the Constitution. This enabled the Government of India and the State governments to enact the preventive detention laws.

Arrest/detention in light of personal rights

Arrest and Detention is a very sensitive area when it comes to the criminal law. When a person is arrested; apart from the legal consequences that follow, it also has a long lasting impact on his reputation and status in society. Therefore, it is well established that arrest should be made sparingly and cautiously. However, the law of preventive detention gives the discretion to the executive authority whether to exercise the power or not. Therefore, in the cases of preventive detention, the entire prerogative is with the executive whether to make an arrest or not. This is what makes this law problematic. When it comes to the constitutional provisions, it gives the legislature the authority to frame laws on preventive detention which is where the root of the problem lies. The dissenting opinion of Justice Sastri in the AK Gopalan case becomes very relevant in this context ever since the majority judgment got overruled. In the majority opinion of this case, the court stated that the legislature had the power to make the laws regarding the preventive detention and any law formed by the legislature for preventive detention is unquestionable since it is protected under Article 22. The detention in this case was held to be valid as it is made by the procedure established by law. However, the court did not give regard to the personal liberties. While on one hand, the constitution provides the right to freedom, and right to liberty as a fundamental right, at the same time, Article 22 empowers the state to curb those very rights at the discretion of the executive authority. Justice Sastri in this judgment was not completely in agreement with this interpretation and observed the following:

“Does the Constitutional prohibition in part III amount to no more than “you shall not take away life or personal freedom unless you choose to take it away”.”

Justice Fazl Ali’s dissenting opinion also advocates in favour of the personal liberty and against the law of preventive detention. It also suggested that the preventive detention law was against the constitutional principles of fundamental rights.

Law of preventive detention: A reflection of Rowlatt act

However, irrespective of the debates and discord in the opinions of various jurists, the law of preventive detention still continues to form an inseparable part of the Indian legal system. Since the time our Constitution came into force in the year 1950, preventive detention laws like Maintenance of Internal Security Act, 1971 (Repealed) [“MISA”], NSA, UAPA etc have been used by the Executive indiscriminately without bothering about the liberties of the people. In the debates of the Constituent Assembly preventive detention was discussed and in the background of circumstances prevailing at that time (violence had erupted on the partition of India and because of Telangana Movement) the members of the assembly thought it necessary to include the provisions of preventive detention in our Constitution. However, in the recent times, the use of these provisions has increased manifolds and a large number of people including students, doctors, journalists etc have been detained under preventive detention for long periods without any charges being framed against them. Many of them have even been denied trials. This brings us to the question that whether these provisions of preventive detention are really a reflection of the Rowlatt Act?

Rowlatt Act was legislated by the British government to discourage Indians from rising against them by suppressing revolutionary groups and depriving the Indians of their right to personal expression and liberty. ‘Rowlatt Act’ mainly envisaged that any person could be arrested and deported merely on the suspicion of sedition and revolt; the trial of those arrested would be conducted by special tribunals established for that purpose; and mere possession of treasonable literature would be declared as a punishable offence. In the present day Indian laws and regulations like sedition or preventive detention are also in essence similar to the Rowlatt Act and there are numerous examples where it is very evident that such laws are being used as a tool to suppress the protests and dissents.

Law Commission in its 177^th Report in 2001, stated that in the year 2000, against 57,163 arrests made for substantive offences in Delhi, there were 39,824 arrests made under preventive provisions. Similarly, in Uttar Pradesh, against 1,73,634 arrests being made for substantive offences, there were a total of 4,79,404 preventive arrests made.

This clearly depicts the recklessness in the implementation of the law of preventive detention in India. The rate of preventive detention is so high that a lot of innocent people are being detained under the garb of preventive detention. Following are some instances of how preventive detention laws were used in recent times.

In the JNU row of 2016, when there were widespread protests against the hanging of Afzal Guru while the trial was at a pre-mature stage, the laws like sedition, and preventive detention were invoked to suppress the protestors. Kanhaiya kumar was arrested and tried for sedition, and more than seven other students were also arrested under the preventive detention laws.

Similarly, Chandrashekhar Azad, a Dalit activist and leader was initially booked under the charges of robbery, murder, riots and arson. After the court granted him bail stating that his arrest was politically motivated, he was booked under NSA right a day after, and was kept in detention for fifteen months without even framing of any charges against him.

Recently, during the Anti CAA protests, there were 1,113 arrests made whereas 5,558 people were detained under the preventive detention laws. These people included students, doctors, teachers etc. who were initially arrested under different FIRs. However, later when they got the bail, they were booked under UAPA and were detained again. Some of them, including Umar Khalid were even kept in detention for six months with no charges framed against them.

Dr. Kafeel Khan was another victim of Preventive Detention. Initially he was booked for provocative speech under Section 153A of Indian Penal Code, 1860. Later, when the court granted him bail, he was not released from jail, but rather booked under NSA and was kept in preventive detention. His detention was extended twice until the Allahabad High Court set aside his detention order and demanded his immediate release having spent 200 days in detention. The court observed that his speech “does not disclose any effort to promote hatred or violence” and the detention was made on ‘Whim & Humour’ which is not sustainable in the eyes of law.

Recently, when there was a lot of ruckus and questions against the arbitrary action of Uttar Pradesh police of burning the body of the victim in Hathras case, the media was stopped from meeting the victim’s family. Amidst that, a journalist named Siddique Kappan was arrested and detained with 3 others and they were charged with Sedition (Section 124A of Indian Penal Code, 1860), and S 14, 17 of UAPA while they were on their way to meet Hathras victim’s family.

All this instances shows how the law of preventive detention can be used by executives to suppress the voices of dissent and opposition. The preventive detention laws are considered to be evil laws. If these evil laws are put into service for an ostensibly beneficial purpose, people would still tolerate it. But if, sometime in future, there comes any authoritarian Government, who might start using the same law against innocent persons whom it despises, or who dissents with the government, then it would be creating a havoc with the liberties of the people. Preventive Detention is very prone to misuse by authoritarian governments and there is a serious need to introduce checks and balances on these laws in order to prevent its misuse. The preventive detention laws in India, as of now, are more or less a reflection of the Rowlatt Act of 1919. There is a pressing need to review these laws before they become as tyrannical as the Rowlatt Act.

Conclusion

While it can be said that definitely the intentions of enacting such a law was to prevent the anti-social elements from causing hindrances in the functioning of the society and smooth governance, but these laws directly affect the fundamental rights and freedoms of people which are guaranteed by the Constitution of India. The complexities arising out of the irresponsible implementation of these laws can consume a lot of time of the judiciary and life of the person so detained.

Preventive detention laws are not really necessary in mature democracies, especially as a peace time measure. In America preventive detention laws are absolutely unknown and even in England they are resorted to only during war time. In fact, there is no country in the world which makes use of preventive detention during peace time as it is done in India.

Preventive detention should be made use of only at the time of grave national emergency and not during peace time or normal times. The safeguards provided for detaining a person should be strictly enforced and a very narrow interpretation should be given to preventive detention. It should be ensured that the liberty of a person is not jeopardized unless his case falls squarely within the four corners of the relevant law.

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ABOUT THE AUTHOR

Naman Jain

Naman is a third-year BBA LL.B student of National Law University, Jodhpur. He is from Udaipur and he loves to travel. He is interested in Human Rights, Constitutional Law, as well as Corporate Law. Other than law, he has a keen interest in entrepreneurship as well as business management. He can be reached here.