20 Preventive Detention

Prof. B.T. Kaul

Introduction

The literal meaning of the term denotes physical detention of a person which is of preventive nature. In law it means depriving a person of his liberty by putting him in jail or confining him in a place with a view to prevent him from committing acts; which may pose a threat to the defense and foreign affairs, security of India or security of a State; disrupt public order or disrupt maintenance of supplies and services essential to the community.1 The deprivation of liberty in pursuance to an order of preventive detention is different from the deprivation of liberty in pursuance of arrest. Arrest is made in the course of investigation after the commission of offence; herein, the detention is punitive, whereas, in case of preventive detention, as it is clear from the name itself, it is with a view to prevent a person from committing offences of a particular nature as mentioned above. Another name by which the term preventive detention is known is ‘Detention Without Trial’. This means that the person though, detained and thereby deprived of his liberty is not to face trial as trial is conducted after the commission of an offence so as to determine the culpability of the person accused. It is worth noting here that the continuance of a person in jail after arrest, facing trial or who is to face trial pursuant to the rejection of his bail petition is also a kind of preventive custody but this is with a view to prevent his from prejudicing the fair conduct of the trial and therefore, different from preventive detention. It is true that sometimes, one of the reasons for the rejection of bail petition may also be to prevent the person arrested from committing more crimes because of the existence of such apprehension in the assessment made by the court, yet his continuance in jail cannot because of this reason only be equated at par with preventive detention as the attributes of preventive detention as explained above are missing here.

Preventive Detention under the Constitution of India

In a constitutional scheme wedded to the concept of ‘rule of law’ it is very difficult to countenance a concept like preventive detention within its fold. Preventive detention is a necessary evil but essentially an evil.2 This is so because individual liberty is one of the most cherished rights zealously guarded by our Constitution by protecting it from the might of State. Right to life and personal liberty is assured to every person by our Constitution under Article 21 of the Constitution and its infraction is only permitted by way of a procedure established by law. In the Constituent Assembly Dr. Ambedkar has regretfully made up his mind that the government would need the power, though it was subjected to severe criticism by the some of the members of the assembly like Jaspat Roy Kapoor and Mahavir

Tyagi.3 The Constitution makers accepted preventive detentions as necessary evil to be tolerated in a constitutional scheme which otherwise guaranteed personal liberty in its well accepted form. Having accepted it, they proceeded to create in terms, clear and wide in their import certain procedural safeguards. These detailed procedural safeguards are given under Article 22 of the Constitution in Part III dealing with Fundamental Rights.4

Article 22 clearly says that the preventive detention needs no authorisation from the magistrate. Under clause (2) custody beyond 24 hours of a person detained after arrest must be authorised by a magistrate but clause (3) (b) keeps preventive detention out of this requirement. Infact sub-clause (4) (a)    lays down that for detaining a person beyond the period of three months under preventive detention the extension must be authorised by an advisory board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court. The proviso to this sub-clause stipulates that the extension beyond three months authorised by the advisory board cannot exceed the maximum period prescribed by any law made by the Parliament. Under sub-clause (b) of clause (4) though, it is provided that the requirement of the authorisation of an advisory board for extension of preventive detention beyond the period of three months can be dispensed with by a law made by Parliament to this effect prescribing the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months. This appears to give wide powers to the Parliament of India by dispensing the need for an independent scrutiny which the intervention by the advisory board may have provided.

Clause (5) puts a restriction on the authority exercising the power of preventive detention by providing that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. It is important to note here that unlike the person detained by way of arrest who under clause (1) of this Article, is given the right to consult, and to be defended by, a legal practitioner of his choice; clause (5) only provides for allowing the earliest opportunity of making a representation against the order by the person detained himself and not by the legal practitioner. Further, under clause (6) the requirement of disclosure of grounds for the order of preventive detention mandated by clause (5) can also be dispensed with, if the authority considers such disclosure to be against the public interest.

3. Legislations providing for Preventive Detention

Even in pre-constitutional era the concept of preventive detention was well known. In India the history of preventive detention dates back to the early days of the British rule when under the Bengal Regulation— III of 1818 (the Bengal State Prisoners Regulation) the government was empowered to detain anybody on mere suspicion5. There was also Rule 26 of the Rules framed under the Defence of India Act 1939, a war time legislation which allowed the detention of a person if it was “satisfied with respect to that particular person that such detention was necessary to prevent him from acting in any manner prejudicial” to the defence and safety of the country6. Indian State acting on the premise of Article 22 came up with the Preventive Detention Act, 1950 which was considered to be a temporary measure and therefore, it lapsed in the year 1969. But after the expiry of this legislation other legislations were enacted allowing preventive detention for various reasons. For example, the Maintenance of Internal Security Act (MISA) was enacted in 1971, followed by Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) in 1974 and the Terrorism and Disruptive Activities (Prevention) Act (TADA) in 1985. Though MISA has been repealed and TADA has lapsed, COFEPOSA continues to be operative along with other similar laws such as the National Security Act (NSA) 1980, the Prevention of Blackmarketing and Maintenance of Essential Commodities Act 1980. Apart from this there are laws with similar provisions enacted by the State governments. Prevention of Terrorism Act (POTA) 2002 also provided for preventive detention, though the Act was repealed in the year 2004.

4. Judicial Intervention in relation to the issue of Preventive Detention

In the very first year of the commencement of the Constitution of India an interesting question arose in relation to the preventive detention of a person under the Preventive Detention Act, 1950 in A. K. Gopalan v. The State of Madras7. The petitioner in this case argued that since preventive detention would rob a person of his liberty and consequentially his rights flowing from Article 19(1) will also be taken away from him; such deprivation should therefore, be permitted, only if the law authorising preventive detention is in conformity with the reasonable restrictions as given under Article 19(2) to 19(6). But the Supreme Court did not accept this argument and held that the different fundamental rights given in Part III of the Constitution must be read disjunctively, in a mutually exclusive manner. But in Maneka Gandhi v. Union of India8, the Supreme Court relying on its earlier judgement in R. C. Cooper v. Union of India9, held that the law must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19, and that even if there is a law prescribing a procedure for depriving a person of personal liberty and there is consequently no infringement of the fundamental right conferred by Article 21, such law, in so far as it abridges or takes away any fundamental right under Article 19, would have to meet the challenge of that article. The Supreme Court also held that if act is arbitrary10, it is implicit in it, that the act is also unequal and therefore, violative of Article 14 as well.11

The contribution of Indian judiciary in upholding liberty of individuals sometimes gets shrouded in scepticism because of one of the most widely debated and criticised verdicts of the Supreme Court in the case of Additional District Magistrate, Jabalpur v. Shivakant Shukla12. In this case the petitions filed before the Supreme Court challenged the legality of the judgements delivered by the seven different High Courts13 holding that despite fundamental rights being suspended owing to the proclamation of emergency under Article 352(1) of the Constitution and a Presidential order to this effect under Article 359(1), courts in India cannot be stopped from enforcing the statutory rights of the individuals and in doing so courts can even go into the questions of malafides in relation to the exercise of executive powers; especially while exercising the power of preventive detention. The Supreme Court by a 4:1 majority, overturned the decision of the seven High Courts and declared that owing to the continuance of emergency and the Presidential order suspending the fundamental rights conferred by Articles 14, 21 and 22, the High Court cannot examine whether an order of detention is in accordance with the provisions of Maintenance of Internal Security Act, which constitute the condition precedent to the exercise of such powers thereunder or whether the order was mala fide or was made on the basis of relevant materials by which the detaining authority could have been satisfied that the order was necessary. The majority judgement was delivered in four separate concurring opinions by A.N. Ray C.J., M. H. Beg, Y. V. Chandrachud and P. N. Bhagwati14 JJ. The sole dissenting opinion was delivered by H.R. Khanna J. The majority verdict is cited by many, even today, as an example of utter surrender of the Supreme Court before an absolutist government. Pursuant to this verdict the Constitution (Fourty-fourth Amendment) Act, 1978 has now amended Article 359(1) and made fundamental rights flowing from Article 20 and 21 non-derogable even during emergency.15

4.1 Judicial Review of Detention Order

Under Article 22(5) of the Constitution a detenu has two rights; (1) To be informed as soon as may be, of grounds on which the order of detention is based, that is, the grounds that led to the subjective satisfaction of the detaining authority; and (2) To be afforded the earliest opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable him to make a representation which on being considered may give relief to him.

4.2. Judicial Review of the Grounds of Detention Order

In Prabhu Dayal Deorah v. District Magistrate, Kamrup16, Mathew J. pointed out that “………the history of personal liberty is largely the history of insistence on observance of procedure. And observance of procedure has been the bastion against wanton assaults on personal security over the years.”17 He therefore held that “………When a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, we think it our duty to see that procedure is rigorously observed, however strange this might sound to some ears.”18

The principle as laid down by Mathew J. has actually been in line with the past precedents coming from the Supreme Court itself. Sarkar J. speaking for a constitutional bench in Ram Manohar Lohia v. State of Bihar19 had held that where a man can be deprived of his liberty by the simple process of issuing a certain order under the Defense of India Rules 1962, he can only be deprived if that order is in terms of the rules.

To decide the correctness or otherwise of the detention order, two issues of importance have arisen before the court. The first is regarding the document and material on which reliance was placed by the detaining authority in passing the detention order. Secondly, with those materials, whether the detaining authority was justified in arriving at a finding that the detenu should be detained without trial. But since, judicial review is not an appeal from an decision but review of the manner in which the decision was made, the courts while deciding the challenge made to the detention order will not normally go into the correctness of the detention order as such but will look into the decision making process. The purpose of review is to ensure that the individual receives a fair treatment.

In Fazal Ghosi v. State of U.P.20, the Supreme Court held that the order of preventive detention is to be made on the basis of the subjective satisfaction of the detaining authority but the same must be based upon some pertinent material. The court added that it is concerned with existence of some relevant material and not with the sufficiency of that material to warrant such order. In Shafiq Ahmed v. District Magistrate, Meerut21, the Court further added that the existing relevant material must have rational nexus with the formation of the satisfaction of the detaining authority. This was further clarified in State of Punjab v. Sukhpal Singh22; the grounds for detention order operate as an objective test to determine whether there exist a reasonable nexus between the grounds for detention and the detention order. What emerges from these rulings is that there must be a reasonable basis for the detention order which is supported by the existence of relevant facts. The Supreme Court in Pebam Ningol Mikoi Devi v. State of Manipur23, therefore, rightly concluded that the Court will scrutinise the “objective basis for the subjective satisfaction”24 of the detaining authority in such cases. Therefore, if the grounds or reasons that led to the subjective satisfaction of the detaining authority are non-existent or misconceived or irrelevant, the order of detention would be invalid. Though, once it appears to the Court that the grounds exist and they are relevant and not misconceived, the sufficiency of the grounds that enabled the detaining authority in passing the detention order is beyond the reach of judicial review.

The Supreme Court acting on this principle quashed a detention order passed under the National Security Act, 1980 in Pebam Ningol Mikoi Devi case. In this case the main ground for the passing of the detention order was the statement made by the detenu to the police officer under section 161 of the Code of Criminal Procedure, 1973. The Court clarified that under section 162 of the Code of Criminal Procedure, 1973, 161 statements are not substantive piece of evidence; it can only be used to contradict a witness in the course of trial. Therefore, this ground was found to be misconceived and completely irrelevant. The Court in this case also found that none of the documents relied upon by the detaining authority reveal the involvement of the detenu in unlawful activities as claimed in the detention order. This find makes even this additional ground for the passing of detention order non-existent. The Court in this case also rejected the argument of the State of Manipur that since in criminal trial evidence cannot be procured to attain conviction of the person detained; therefore, the detention order is justified.

An order of preventive detention can also be passed against an undertrial prisoner, if there is a real possibility of release of that person and the grounds for the passing of an order of preventive detention exists against such person. The Supreme Court in the case of Huidram Konungjao Singh v. State of Manipur25 quashed the detention order passed against an undertrial. The court stated that such an order can be passed if the ground for passing the order of preventive detention exists and the possibility of release of the undertrial is a real possibility. The Supreme Court did not accept the argument in this case that the real possibility of release arises because in similar cases the accused persons have been granted bail when the undertrial himself has not even filed his bail petition. The court however, also clarified that the real possibility may arise even if the undertrial has not filed his bail petition, if a co-accused in the same offence has been granted bail. But at the same time mere filing of a bail petition does not give rise to a real possibility of release, even if, the accused persons in similar cases have been granted bail.

The Supreme Court in State of Punjab v. Sukhpal Singh26 made an important observation regarding the issue of grounds for preventive detention that non-application of mind by the detaining authority about the launching of a criminal case against the detenu is a relevant fact to show that the authority has not applied his mind on this importance question but it would not because of this reason only vitiate the order of preventive detention. The rationale of preventive detention can still be there despite the fact that a criminal case also could have launched against the detenu in the alternative.

Often, an order of preventive detention would not be based on a single ground or reasons, but even if one such ground is found to be non-existent or misconceived or irrelevant by the court it becomes very difficult then to convince the court that the other grounds can on its own sustain the preventive detention order. Strict compliance with the rules of procedure would mean that such orders would be declared illegal by the courts. The Indian Parliament being not happy with this, specially, in relation to COFEPOSA has amended this Act and added section 5-A in it, which provides for a deeming clause that if an order of detention has been made on two or more grounds then it shall be deemed that the order has been made on each of the grounds separately. Therefore, such order shall not be deemed to be invalid or inoperative because one or some of the grounds is or are vague, non-existent, not relevant or invalid for any other reason whatsoever. It is interesting to note here that COFEPOSA has been placed in the Ninth Schedule of the Constitution by the 39th Constitutional Amendment in the year 1975 making it immune from judicial review. A nine judge bench of the Supreme Court has unanimously upheld the constitutional validity of this section in Attorney General for India v. Amratlal Prajivandas.27 The judgement validates this section because it has a deeming clause making the detention order based on each of the grounds separately regardless of the fact whether the detaining authority was also of this view or not. The reasoning given by the court leaves much to be desired as it is still largely based on this premise that a law put in Ninth Schedule is immune from the challenge of constitutionality merely by having a deeming clause.28 The impact of this amendment on Article 22(5) was not gone into, so that one can reason as to whether this dilution of the constitutional safeguard by way of this amendment is constitutionally sustainable or not.

Here, it is important to take note of an Andhra Pradesh High Court’s judgement in Yadav Reddy v. State of Andhra Pradesh29, declaring section 6(a) of the Andhra Pradesh Preventive

Detention Act, 1970 unconstitutional being violative of Article 22(5) and Article 19(1)(d)30  of the

Constitution. Section 6(a) of this Act enacted:

“No detention order shall be invalid or inoperative merely by reason that one or more of the grounds on which the order is made is or are vague or irrelevant, when the other ground or grounds does not or do not suffer from any such infirmity.”

This sub-section was similar to section 5-A of COFEPOSA, except for the fact that the provision in COFEPOSA has a deeming provision whereby a legal fiction is created by which the detention order is deemed to be based on each of the grounds of detention separately and the fact that COFEPOSA was put in Ninth Schedule of the Constitution by a constitutional amendment. It is important to note that the object and effect of both section 6(a) of the Andhra Pradesh Preventive Detention Act and that of section 5-A of COFEPOSA is same.

4.3 Right of the Detenu to make representation

In Hari Kishan v. State of Maharashtra31 and Harbandhu Das v. District Magistrate, Cuttack32, it was categorically held by the Court that communication of detention required by the constitutional article must be in a language and script that the detenu understood. In State of Punjab v. Sukhpal Singh33, the State Government took thirteen days to decide on the representation by the detenu including four holidays and rejected it thereafter. Further, the Government took eight days in communicating the decision of rejection to the detenu. The Supreme Court held that the result is that the detenu’s constitutional right of prompt disposal of his representation was denied and legal consequences must follow. The Court reiterated that it is a settled law that in case of preventive detention the disposal of the detenu’s representation must be expeditious. In this case the detenu had wrongly addressed his representation on 1st September, 1988 to the President of India as Punjab was under President’s rule then. The representation was received by the State Government from the Central Government on 19 October, 1988. The Supreme Court while deciding in favour of the detenu also took into account the time lost from 1st September to 19th October in communication of the representation by the Central Government to the State Government.

Thus, it can be concluded that the courts in India have applied the procedural safeguards against preventive detention as provided in the Constitution and specific laws very strictly and thereby endeavoured to protect the spirit of the Constitution by remaining vigilant to the cause of personal liberty. At the same time, when it comes to confronting the isolated cases of legislative excesses in relation to preventive detention, the courts in India have also been found wanting.

5. Summary

The existence of the concept of preventive detention in a democracy, aptly describes the dilemma of a State wedded to the axiom of rule of law and therefore, duty bound to protect its citizens from the leviathan might of police powers but at the same time being constrained by the pragmatism that in order to maintain peace and security including economic security, sometimes, State must allow incursions into the personal liberty by sanctioning detention of some persons without trial. This is a necessary evil as such orders of preventive detention would be based on the subjective satisfaction of the executive authorities and therefore, likely to suffer from the vice of arbitrariness. In order to ensure that the preventive detention power is not misused or abused, the Indian Constitution has hedged the exercise of this power by making it conditional upon the fulfilment of certain procedural safeguards as mentioned in Article 22 of the Constitution. These safeguards though, are not absolute guarantees against the misuse of this provision, nevertheless, endeavours to ensure fairness in the exercise of discretion by the executive authorities. Immediate communication of the grounds of detention to the detenu and permitting the detenu to make a representation against the detention order before the competent authority are some of the key safeguards provided by Article 22 of the Constitution. Apart from this the Constitution also requires expeditious disposal of the representation made by the detenu and the detention of the detenu for more than three month requires authorisation from an independent advisory board. The Supreme Court of India barring some occasions has generally been very firm on any of the breaches of the constitutional and statutory safeguards and has clearly stated that breach of any of the procedural safeguards shall have the effect of vitiating the detention order.

Web Links

1.Wikipedia on Preventive Detention on URL  http://en.wikipedia.org/wiki/Preventive_detention

2. PUCL’s comment on National Security Act on URL http://www.pucl.org/from-archives/may81/nsa.htm

3. Adam Klein Benjamin Wittes on Preventive Detention theory and practice in USA in Harvard National Security Journal on URL http://harvardnsj.org/wp-content/uploads/2011/01/Vol.-2_Klein-Wittes_Final-Published-Version.pdf