Preventive Detention in The Constitution of Indian
Preventive Detention is the most contentious part of the scheme fundamental rights in the Indian constitutions. The Article 22 (3) of the Indian constitution provides that, if a person is arrested or detained under a law providing for preventive detention, then the protection against arrest and detention under Article 22 (1) and 22 (2) shall not be available.
Preventive detention should be carefully distinguished from punitive detention. Punitive detention is punishment for illegal acts done. Preventive detention on the other hand is action taken beforehand to prevent possible commitment of crime. Preventive detention thus is action taken on grounds of suspicion that some wrong actions may be done by the person concerned.
Preventive detention can however be made only on four grounds.
The grounds for Preventive detention are
security of state,
maintenance of public order,
maintenance of supplies and essential services and defence,
foreign affairs or security of India.
A person may be detained without trial only on any or some of the above grounds. A detainee under preventive detention can have no right of personal liberty guaranteed by Article 19 or Article 21.
To prevent reckless use of Preventive Detention, certain safeguards are provided in the constitution.
Firstly, a person may be taken to preventive custody only for 3 months at the first instance. If the period of detention is extended beyond 3 months, the case must be referred to an Advisory Board consisting of persons with qualifications for appointment as judges of High Courts. It is implicit, that the period of detention may be extended beyond 3 months, only on approval by the Advisory Board.
Secondly, the detainee is entitled to know the grounds of his detention. The state however may refuse to divulge the grounds of detention if it is in the public interest to do so. Needless to say, this power conferred on the state leaves scope for arbitrary action on the part of the authorities.
Thirdly, the detaining authorities must give the detainee earliest opportunities for making representation against the detention. These safeguards are designed to minimize the misuse of preventive detention. It is because of these safeguards that preventive detention, basically a denial of liberty, finds a place on the chapter on fundamental rights. These safeguards are not available to enemy aliens.
Preventive detention is patently undemocratic. Before independence, the British government took recourse to it to suppress nationalist movements. The first Preventive Detention Act during the British rule was Bengal Regulation III of 1918.
The founding fathers of the Indian constitution, great champions of democracy reluctantly provided for preventive detention, as safeguards against anti-social or, anti-state activities.
The preventive detention provisions of the constitution are not self executor. Legislatures must pass laws providing for preventive detention.
India’s first Preventive Detention Act came in 1950. It was allowed to lapse after some years. In 1969 came the ‘Maintenance of Internal Security Act popularly known as the MISA. In 1974 came the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act popularly known as the COFEPOSA. While the MISA was directed against subversive political activities, the COFEPOSA is also directed against subversive political economic activities. Preventive detention powers of the government were further enhanced by National Security Act, popularly known as NASA of 1980.
The Janata Government came to power with an electoral pledge that preventive detention laws shall be repealed. The Janata repealed the MISA but COFEPOSA continued. In 1980, the National Security Act or the N. S. A. was introduced.
Finally preventive detention laws may be passed by both the central and the state governments. The union government enacts preventive detention acts when required for defence, foreign affairs or security of India. State governments may pass such laws to maintain public order and to maintain essential supplies and services. This concurrent powers: of the union and the state governments over preventive detention creates a confusing situation. Thus during the Janata regime, while the central government was abolishing the MISA, some state governments notably that of J. K. and Madhya Pradesh passed fresh Preventive Detention Acts.