Meaning of Preventive Detention:
Preventive Detention as the term suggests is detention given to prevent a person from committing a possible crime. Prevention is of an offence that is termed as cognizable under law. This is done when a police officer has some information about a cognizable offence that may be committed, if the person is not arrested.
Under the provision of Section 151 of The Criminal Procedure Code, 1973 (CrPC), a police officer can arrest a person without orders from a magistrate and without a warrant, if it appears to that officer that a cognizable offence can be committed by that person, if the said person is not arrested. The person cannot be detained for more than 24 hours in custody unless his further detention is required or is authorized under CrPC or any other law for the time being in force.
Article 22 of Constitution of India is for ‘Protection against Arrest and Detention in Certain Cases’. It provides for the following safeguards against preventive detention:
- Right to be informed about the grounds of arrest.
- Right to consult and be defended by a legal practitioner of his choice.
- Right to be produced before a magistrate within 24 hours of arrest.
- Right to know the grounds of the order if his detention is made in pursuance to an order made under any law.
- Right to make representation against the order at the earliest.
Article 22(4) states that no person shall be detained in preventive detention for a period of more than 3 months unless:
- An Advisory Board consisting of persons who are or have been or are qualified to be appointed as High Court judges has reported before the expiration of 3 months that there are sufficient grounds for extending such detention.
- The person is detained under the provisions of any law made by parliament under sub clauses (a) and (b) of Article 22.
Article 22(7) also empowers the Parliament to prescribe by law:
- The circumstances under which a person may be detained for more than 3 months without the opinion of Advisory Board as stated above.
- The maximum period for which a person be detained under any law providing for preventive detention.
- The procedure to be followed by an Advisory Board during an inquiry.
A three-judges bench of the Supreme Court in the case of Ahmed Noormohmed Bhatti v. State of Gujarat[i] held that, if the requirements for the exercise of power under Section 151 of CrPC are not fulfilled and a person is arrested, then the arresting authority may be exposed to proceedings under the law. In Manikandan v. SI of police[ii], a person arrested on a mere suspicion cannot be said to be a person against whom commission of a cognizable or non bailable offence is alleged and so cannot, without more evidence, be remanded to judicial custody and should be released on bail treating the case as a bailable offence.
There have been many cases regarding preventive detention but some of them have a special regard. Some of them are:
A.K Gopalan v. The State of Madras[iii]: The petitioner in this case was detained under Preventive Detention Act (Act IV of 1950). The petitioner applied for a writ of habeas corpus under Article 32 of the Constitution for release from the detention. The main grounds for the writ were that the act contravened the provisions of Article 13, 19, 21 and 22 of the Constitution and was ultra vires of the constitution.
Article 21, Constitution of India reads as: ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’. The main contention of the petitioner was regarding the words of Article 21 that are “procedure established by law”. The petitioner termed the procedure as the one sanctioned or established by principles of natural justice. The bench was of the view that established by law if looked into its plain meaning of these words mean enacted by law and was of the opinion that procedure established by law must mean any procedure made by the Parliament and the Legislature of the States. The petitioner had referred to the bench the idea of due process of law as is in America, which states that no person shall be deprived of his life or personal liberty except by the observance of the formalities which justice and fair play requires to observe, and contended it to be the same as procedure established by law in our constitution. The bench stated that any procedure established by law must conform to the requirements of Article 22. Therefore, it was stated that any law depriving any person of life and personal liberty that may be made by the legislature in conformity with the Article 22 does not take away or abridge any right conferred by Article 21. The court in this case upheld the validity of the act except for section 14, as it prevented the grounds of detention being disclosed to the court. The petitioner’s detention had also not gone beyond three months and the petition thus was dismissed.
The court in this held that the procedure established by law will only mean the law established by the state however brutal it may be and has nothing to do with the principles of natural justice. There was only one dissenting opinion that of Justice Fazal Ali which is also said to be one of the best dissenting opinions in the Indian judicial history. Justice Ali’s gave the opinion that the right to life under Article 21 constitutes Principles of Natural Justice and the courts should check the arbitrariness of the laws made by the legislatures.
Maneka Gandhi v. Union of India[iv]
In this case the passport of the petitioner was impounded by the authorities under the Passport Act, 1967. The petitioner asked the authorities for detailed reasoning for the impoundment of passport. The authorities answered in contrary and stated that the reasons are not specified in the interests of general public. The act provided for the impoundment of the passport of a person if such action is necessary in the interest of sovereignty, integrity and security of India, friendly relations of India with any foreign country or general public. The petitioner then approached the Supreme Court under Article 32 of the Constitution for enforcement of her fundamental rights under Article 14, 21 and 19. It was also contended by the petitioner that the order has taken away her right to be given a fair hearing to present her case.
The dissenting opinion of Justice Fazal Ali came to the fore and the court in this case held that the words used in Article 21 of the Constitution are ‘procedure established by law’ instead of ‘due process of law’ but the procedure must be devoid of arbitrariness and unreasonableness. This case overruled the judgment in A.K Gopalan and changed the landscape of analysis of the Article and made it much wider to include the procedure established by law that is not arbitrary and unreasonable.
The law of preventive detention are indeed helpful in preventing the commission of an offence but can also be used by the government in power to cover the voices of dissent as is being used from years. This can be seen in a recent case of Nuzhat Parveen v. Satate of UP and Anr.[v] or known as Dr. Kafeel Khan case wherein Dr. Kafeel Khan was illegally detained by the U.P government under the controversial National Security Act (NSA). The petition was first brought before the Supreme Court from where it was sent back to the Allahabad High Court where the two judges bench of the court declared the detention as illegal and directed for an immediate release of Dr. Khan. It is only one of the many cases of mala fide preventive detention in the recent times through which the government tries to press the voices of opposition. The courts should try to hear and decide the cases of preventive detention as early as possible because of the mala fide intentions of the people in power and uphold the rights of the citizens of India.
[i] (2005) 3 SCC 647: 2005 SCC (Cri) 794
[ii] 2008 Cri LJ 1338
[iii] 1950 AIR 27, 1950 SCR 88
[iv] 1978 AIR 597, 1978 SCR(2) 621
[v] W.P No. 264 of 2020
Shivek Rai Kapoor