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Published : August 26, 2015 | Author : rudrasin
Category : Constitutional Law | Total Views : 7050 | Rating :

Legal and Management Consultant

Preventive Detention And Constitution of India – Effect on Human Rights

Preventive Detention:

Confinement imposed generally on a defendant in criminal case who has threatened to violate the law while awaiting trial or disposition or of a mentally ill person who may harm himself or others – Black Law Dictionary

It is an anticipatory measure and does not relate to an offence while criminal proceedings are to punish a person for an offence committed by him [Alijan Mja V. District Magistrate, Dhanbad AIR 1983, SC 1130].

The object of Preventive Detention is not to Punish but to intercept to prevent the Detenu from doing something prejudicial to the State. The satisfaction of the concerned authority is a subjective satisfaction in such a manner. [Ankul Chandra Pradhan Vs. Union of India, AIR 1997, SC 2814].

Arrest as laid down in Chapter V of the Code of Criminal Procedure Code 1973 initiates preventive detention which questions one’s right to liberty and freedom.

The Justification for preventive detention is suspicion or reasonable apprehension, reasonable probability of the impending commission of an act prejudicial to the state.

A three – Judge Bench of the Supreme Court in Ahmed Noormohmad Bhatti V. State of Gujarat, AIR 2005 while upholding the validity of the power of the Police under section 151 of Criminal Procedure Code 1973 to arrest and detention of a person, without a warrant, to prevent commission of a Cognizable offence, ruled that a provision could not be held to be unreasonable as arbitrary and therefore unconstitutional merely because the Police official might abuse his authority.

Article 22 provides that the Detenu under the preventive detention law shall have the right to have his representative against his detention reviewed by an advisory board. If the advisory board reports that the detention is not justified, the Detenu must be released forthwith. If the advisory board reports that the detention is justified, the Government may fix the period for detention. The advisory board may conclude its proceedings expeditiously and must express its opinion within the time prescribed by law. Failure to do that makes the detention invalid.

The Constitution (44th Amendment Act 1978) has amended Article 22 and reduce the maximum period for which a person may be detained without obtaining the advisory board from three to two months.

The interpretation of Article 22 Clause 7 Sub clause (a) was best done by the Hon’ble Supreme Court in Sambhu Nath Sarkar V. State of West Bengal, Section 17A of the Maintenance of the Internal Securities Act 1971 contained five heads in relation to which preventive detention could be for a period longer than three months without any reference to an Advisory Board.

The Supreme Court held Section 17 unconstitutional. The court said that Article 22(7) (a) was an exception to Article 22 (4). Thus Article 22(7) (a) could be made use of only in exception to and ordinary cases.

Journey of decision from Gopalan to Kharak Singh to Meneka Gandhi

In A K Gopalan V. State of Madras, AIR 1950 SC 27 petitioner filed a writ of Habeas Corpus against his detention in Madras Jail. It questioned the expression ‘Personal Liberty’. The issue was whether Preventive Detention Act 1950 ultra vires Fundamental Rights under Constitution. It was held that the Preventive Detention act was intra vires the Constitution of India with the exception of Section 14 which is illegal and ultra vires. It was further held that Article 21 is applicable to preventive detention and Preventive Detention Act 1950 permits detention beyond a period of three months and excludes the necessity of consulting an advisory board. It is not obligatory on the Parliament to prescribe any maximum period.

In Kharak Singh V. State of UP AIR 1963, SC 1295, the court stated that personal liberty was not only limited to bodily restraint or enforcement. Kharak Singh was charged in dacoity case but was released since there was no evidence available against him. However the Police monitored his movements and activities even at night. The court laid down that an unauthorised intrusion into a person’s home and disturbance caused to him thereby violated his right to personal liberty enshrined in Article 21.

In Maneka Gandhi V. Union of India the court expressed ‘personal liberty’ under Article 21 of the widest amptitude. Protection with regard to Article 19 also included unlike in the case of Kharak Singh.

The Supreme Court’s role of explaining the constitutionality of preventive detention has been enormous and positive. The use of preventive measures from being victimised with unlawful use of preventive detention has been safeguarded massively by Writ Habeas Corpus. Double Jeopardy too stands consistent from Petitioner’s defence point.

Habeas Corpus – Article 32 and 226 empowers the Supreme Court and High Court respectively to issue writs. Habeas Corpus which means “you may have the body” is a writ issued calling upon person by whom another person is detained to bring the Detenu before the Court and to let the court know by what authority he has been detained. The writ of Habeas Corpus is a device, requiring examination of the question of illegal detention. The writ has been described as “a great Constitutional privilege of the Citizen” or the first security of civil liberty” [Deepak Baja V. State of Maharashtra AIR 2009 SC: 628].

In Sunil Batra V Delhi Administration [AIR 1980 SC: 1579] a post card written by the Detenu from jail was converted into a writ petition for Habeas Corpus. The writ would lie if the power of detention has been exercised malafide or for collateral or ulterior purpose – as it was laid down in Gopalan V. State of Madras. Similarly if the detention is justified under the law, the writ would be refused.

In Secretary to Government & others V. Nabila & others, High Court quashed the order of detention mainly on the ground that the detention was in remand in connection with the solitary ground case when there was no material before the detaining authority to show that either the Detenu himself or his relatives are taking steps to file application for bail in solitary ground case. Held the impugned order of the High Court quashing the order of detention on solitary ground case is erroneous and liable to be set aside. The Detenu was taken into custody in Sept 2012 and the order of detention was passed in Dec 2012. The same was quashed by high Court on April 2013. After a long time already expired and period of detention expired in April 2014 even if the impugned order passed by the High Court is set aside, the Detenu cannot and shall not be taken into custody for serving the remaining period of detention. Unless there still exist materials to the satisfaction of the detaining authority.

Preventive Detention and Human Rights

Apart from the measures and safeguards relating to preventive detention, the Citizens must follow the necessity of forbidding the crime in expanding further and reasonably support preventive detention, but cases shows unlawful detention stating mechanism for prevention of cognizable offence. Ahmed Noormohmed Bhatti V. State of Gujarat AIR 2005, SC 2115 related to it.

The principle of Audi Alteram Partem which states that no one should be condemned unheard. A person whose right or interests are disputed or controverted him must be given a reasonable opportunity to defend – it reasonably defends the victims of unlawful preventive detention.

On detention, instances of inhuman treatment of prisoners have led to revolution of strict Human Rights Laws. It is an international concern lead under UDHR and in India the National Human Rights Commission has laid down several measures and directives. Some of the important among them which could prevent the prisoners from inhuman treatment and restrict preventive detention in accordance to security of the Nation includes:

Ø Detailed recording of facts leading to satisfaction of authority conveying the grounds of detention to the Detenu. People should be sensitized about various personal liberties.

Ø In case there is unlawful detention, need to have provision for interim relief/compensation.

Ø All the states must formulate rules under the Juvenile Justice Act 2006 and constitute necessary institutions as required under the law. Juvenile justice system should be distinct from criminal justice system.

Ø Psychological help to prisoners.

Ø The NHRC has conducted a workshop on four thematic sessions covering detention in prisons and police custody, preventive detention. It was presided by former Attorney General of India Mr. Soli Sorabjee. It included participants like DGPs, DG of Prisons, Nodal officers of Human Rights Commission and representatives of selected NGOs.

Thus it may be derived that those who are reasonable for the national security or for the maintenance of public order must be the sole judges of what the National Security or Public order requires. It should be the responsibility of the detaining authority to detain a person with a view to prevent him from acting in a manner prejudicial to the maintenance of public order. It has always been the view of the court that detention of the individuals without trial for whatever short period of time is wholly inconsistent with the basic ideas of our Government and Judicial system. Anti social activity can never furnish an adequate reason for invading the personal liberty of the citizens except in strict accordance with and necessity to suffice legal procedure requirements considering weightage of the crime and no injustice is done.


The author can be reached at: rudra@legalservicesindia.com

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