Constitutional Validity of Preventive Detention Laws

Submitted by

Prabhnoor Guliani

Division: E Roll no.: 18010223095 Batch: 2018-23

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), Pune

In

August, 2019

Under the guidance of

Dr. Shashi Bhushan Ojha & Mr. Ahmed Ali

Assistant Professors
 Contents

CERTIFICATE ................................................................................................................................. 3

Acknowledgement ............................................................................................................................ 4

Background ...................................................................................................................................... 5

Preventive Detention and Constituent Assembly ............................................................................. 6

Misuse of Preventive Detention Laws .............................................................................................. 7

Case laws ......................................................................................................................................... 9

AK Gopalan vs State of Madras................................................................................................... 9

Kharak Singh vs State of UP ........................................................................................................ 9

Fogla & SK Jalil vs State of Bihar............................................................................................... 9

Comparison of Right to Life and Personal Liberty with Preventive Detention. ............................ 10

Literature Review ........................................................................................................................... 12

Conclusion ..................................................................................................................................... 13

Bibliography .................................................................................................................................. 13
 CERTIFICATE

The project titled “Constitutional Validity of Preventive Detention Laws” submitted to

Symbiosis Law School, NOIDA for Law of Constitutional Law I as part of Internal
Assessment is based on my original work carried out under the guidance of Dr. Shashi
Bhushan Ojha and Mr. Ahmed Ali from July 2019 to October 2019.

The research work has not been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the research paper has been
duly acknowledged.

I understand that I myself would be held responsible and accountable for plagiarism, if any
detected later on.

Signature of the student

Date:
 Acknowledgement

I, Prabhnoor Guliani (18010223095) of 2018-23 batch, division E of Symbiosis Law

School, Noida, would like to thank my professors Dr. Shashi Bhushan Ojha and Mr.
Ahmed Ali for their expert guidance and positive criticism provided on the project. I would
also like to give special credits to Prof. Dr. CJ Rawandale for being a constant support for
the students.

I have invested the best of my efforts and energy on this project and I sincerely hope that
it is an appealing project to the examiner

Signature

Date
 Background

Preventive Detention refers to the imprisonment of persons under the apprehension that
they may commit further offences and maintain public order in society. Preventive
detention takes place without any trial and conviction by the court, but merely due to the
suspicion in the mind of an executive authority. It is mostly characterized as a
precautionary step, meaning that the action like preventive detention arises purely out of
suspicion to prevent the commitment of a crime. Laws based on Preventive Detention,
although definitely intrudes on a person’s personal liberty which in general terms refers to
the basic principles of autonomy and freedom that an individual is given as a fundamental
right1. This kind of provision given in the Constitution may seem like a draconian one but
actually if we look at the main objective of Preventive Detention is not to punish but to
intercept to prevent the detainee from doing something prejudicial to the State. The
satisfaction of the concerned authority is subjective satisfaction in such a manner2

In India we are all born with the right certain rights that allow us to form associations, act
freely in a lawful manner along with other freedoms that are associated with freedom of
movement and freedom from detention of that individual3. This immediately contradicts
the rule of law where a person’s freedom can be denied via due process of law. India is one
of the few countries in the world to have a long history of preventive detention in the world.
Preventive detention is a widely debated topic and it has led to several police violations
and risen many questions regarding abusing of human rights.4 It is believed that such a
draconian measure of detaining people was borrowed from the colonial era. During British
Raj Bengal Regulation Act 1818 was passed where people could be detained on mere
suspicion and this law was applicable in all the 3 presidencies of Madras, Calcutta and
Bombay. Later the Rowlett Act was introduced in the year 1919 where a person could be
arrested and given detention for an indefinite amount of time without a formal trial or a
judicial review.

1
Art. 21: Protection of life nd Personal Liberty
2
Ankul Chandra vs District Magistrate, Dhanbad, AIR 1983, SC 1130
3
Art. 19: Protection of Certain Rights Regarding freedom of speech etc.
4
Ahmed Noormohmed Bhatti vs State of Gujarat, AIR, 2005 SC 2115
A person who has been arrested under preventive detention laws also possesses certain
rights provided in article 22(1) and article 22(2)5 according to which a person needs to be
informed the grounds of arrest and he has all the rights to consult a legal practitioner about
the issue. He also needs to be presented in front of the magistrate within 24 hours of arrest.
But in Article 22(3), both of the first clauses can be denied but this also does not depend
upon the absolute authority of state. The state is bound to only keep a person in detention
under Article 22(3) by Advisory board to keep a person as a detainee under a period of 3
months, satisfied there is a reasonable cause for arrest as well as the detainee must be given
earliest opportunities for making representation against the detention.

Preventive Detention and Constituent Assembly

The deciding of laws on preventive detention to be added in the constitution and

constitutional safeguards to keep a check on the wielded power by the Legislature and the
Executive appeared in front of the Constituent Assembly as Article 15 on 15th September,
1949. Father of the Constitution, Dr. BR Ambedkar proposed Article 15A6 as a safeguard
to be provided by the Constitution against the arbitrary exercise of state power by the
governments to come. He was a little discontent with his efforts since the exclusion of the
phrase ‘due process of law’ removed all kinds of limitation from the laws. This article was
taken from CrPC and put as a fundamental right to personal liberty in matters of arrests
and detention on the pedestal where it would be free from unreasonable exercise of
authority.

The bringing about of this article was considered extremely controversial as members of
the assembly who faced detention during British Raj found the contents of the provision
lacking and accused the denied a fair trial to the accused. The leaders were quite skeptical
of the idea and doubted the credentials of the executive in the manner of arrests and
detention. There were concerns that were raised mostly regarding the security of the state.

5
Art. 22: Protection against arrests and detention in certain cases
6
Article 22 is the present day Article 15A
It was argued that their main concern lies over the security of protection of people regarding
right to personal liberty. It was deemed that in a multicultural state like India, preventive
detention seemed like a necessary evil required under the existing conditions of India. A
major supporter of this thought was Mr. Alladi Krishnaswami Ayyar.

The whole discussion in the parliament regarding the fate of Article 15A was showing a
meticulous approach which was taken by the Members of the Parliament with regard to the
mammoth task that lay in front of them. The hardest task in front of them was finding a
middle ground between protection of fundamental right of liberty and wants of the state
which benefits the security of the country. The debates as well as the Article, demonstrated
the connecting principles of criminal law and constitutional law and the legislature and the
executive keeping an arbitrary and accurate check on the power.

Misuse of Preventive Detention Laws

It is believed that India had adopted and inherited various laws and acts from the British
Raj which they considered to be useful and beneficial for the government, but preventive
detention is like one of the colonial baggage that the British left behind. The constitution
however, gives the explanation of how it is a necessary evil that can be triggered on the
basis of minimal apprehension and cause an arrest without having sufficient evidence and
without a proper trial. This raises a very important question that why in a country with such
a tolerant constitution can contain a provision that is so draconian. It was in the vision of
the constitution makers that foresaw that there is a need to curtail freedom at certain times
and of certain individuals in order to ensure peace, unity and progress in the country.

Though preventive detention should be used judiciously and out of valid reasons, due to
absence of proper safeguards, it is grossly misused. Under Criminal Procedure Code, a
person should not be held as a detainee for more than 24 hours but there have been instances
where people have been detained in jails for over a year. There have been cases where
police has detained people just because they were Dalits or belonged to lower castes. This
is also a clear violation of Article 14 of the Constitution. Preventive Detention laws are
arbitrary in nature to such a point that Section 15 in TADA Act stand in absolute
infringement to the rule of Section 26 of the Evidence Act, 1872 which confirms that the
confession made by the detainee in the police custody cannot be taken as an evidence and
be proved against him, but under the TADA act instructs that certain confessions can be
used against him. In places like Kashmir, preventive detention is manifestly used and most
of the people who are detained are those who are raising their voices against the
government.

India happens to be one of the countries where preventive detention takes place even when
social welfare and peace are in order otherwise in Western Countries like UK and USA,
preventive detention does not really exist except during war time. There are many kinds of
issues that arise out of unlawful arrests the most primary being harassment of ordinary
people as they are detained for a longer amount of time than prescribed in the constitution
without providing them any consular access. This also leads to a bad image to be framed
in the society.

Even though the justice system in India is slow but is sure effective. Justice L Nageswar
Rao and Justice Navin Sinha of Supreme Court quashed the order of preventive detention
under the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug
Offenders, Goondas, Immoral Traffic Land Grabbers Act, 1986.7 Here it was noted that
ordering preventive detention based on subjective satisfaction is a serious issue affecting
the fundamental rights of the citizens including Article 14, 19, 21and 22 of the constitution
because abusing of power for collateral purposes and is based on grounds beyond the
statute it will stand as being in colorable exercise of power. The constitution only provides
exceptions to the fundamental rights, which can only be followed according to due
procedure of the law.8

7
V Shantha vs State of Telangana and Others AIR 2017, SC 2625
8
Maneka Gandhi vs Union of India AIR 1978, SCR 1978
 Case laws

AK Gopalan vs State of Madras

In AK Gopalan vs State of Madras, AIR 1950 SC 27 petitioner filed a writ petition based
on Habeas Corpus against his detention in Madras Jail. In this case the concept of Personal
Liberty was put into question. The question that was raised in this case was whether
preventive detention Act, 1950 was acting beyond one’s legal authority on the Fundamental
Rights of the constitution. It was held in the judgement 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 this case where it was held that Article 21 is applicable to Preventive
Detention Act 1950 that permits detention beyond a period of 3 months and dismisses the
requirement of consulting an advisory board. It is not mandatory for the parliament to
decide any maximum period.

Kharak Singh vs State of UP

In Kharak Singh vs State of UP AIR 1963, SC 1295, the court stated that personal liberty
was not only restrained to restraint of the body. In this case Kharak Singh was charged for
dacoity but was released due to not having enough evidence against him. However the
police kept track of his each and every movement and activities, even during the night. The
court then passed the judgement that an unlawful imposition into a person’s home and
causing disturbance in his personal life was violating his right to personal liberty which he
should have been provided as the citizen of the country under Article 21 of the constitution.

Fogla & SK Jalil vs State of Bihar

In Fogla & SK Jalil vs State of Bihar AIR 1975, SC223, it was seen that one of the reasons
for arrest and detention was not communicated to the detainee. It was held that the detainee
had no opportunity to make an effective representation to the government and hence the
arrest violated their Article 22(5) of the constitution and must be set aside.

Comparison of Right to Life and Personal Liberty with

Preventive Detention.
The court has laid down certain guidelines through cases in order to ensure that the rights
and liberties of the citizens are not infringed. The judiciary is aware how the state can
stretch its powers so a need for a vigilant check on preventive detention laws9. Personal
liberty is a basic fundamental right that is enjoyed by everyone in all states of nature
without any kind of discrimination and needs constant protection from the judiciary. This
is because the main reason why the provision of preventive detention was added in the
constitution was out of the goodwill of constitutional recognition that certain restraints are
required on right to life and personal liberty which is often considered as a controversial
subject but it is required for the good of the people.

A decision in Apex Court was held in the case Union of India vs Dimple Happy Dhakad
where it was shown that there was no actual prevention of threat required. It can be agreed
that the majority of Article 22 has behaved like a precision based instrument that chips
away the rights guaranteed under article 21. The rights provided under Article 21 of the
constitution has been attacked time and again throughout the history of independent India
with the worst examples coming from the period of Emergency in 1975. Article 22 was in
fact to be used as a measure to protect instead of curtailing the rights of an individual to

9
Attorney General of India vs Amrutal Prajivandas AIR 1994 SC 2179
move freely in the country. Even though there is currently a misuse of preventive detention
laws, we cannot completely do away with them it may also have a rational connection with
object that was ultimately prevented from happening. Appellate have been arrested on the
grounds where they were apprehended of some kind of prejudicial activity that violates the
security of India or having some kind of relations with foreign bodies and spreading a lot
of false rumors that an erupt a genuine disturbance in peace and harmony of people10.

No person should be held as a detainee on vague grounds because the Apex Court has
passed a judgement where it was noted that the term vague is the opposite of definite and
hence holds as an incapable ground arrest11. It is therefore the duty of the detaining
authorities to make its meaning beyond doubt otherwise such grounds can lead to violation
of the fundamental rights12.

Almost every preventive detention can be challenged in front of the Court and most of it is
in the violation of Article 1413, Article 1914 and Article 21. There have been hundreds and
thousands of cases of extra-judicial killings and disappearances and also the questionable
denial of basic freedoms. Time and again Supreme Courts and High Courts have invoked
rules of procedural strictness so that they can control executive discretion in the use of
preventive detention and the consequential abuse of its power15. Many of these laws have
failed to confirm to constitutional validity as they also sometimes fail to correspond with
the international standards of human rights. The detention should be amenable to the
judicial control and the detainee to compensation for wrongful confinement.

Article 21 grants the most important fundamental right of right to life and personal liberty
without which all rights would be meaningless. No person should be deprived of his
personal liberty, except by the procedure established by law. Preventive detention should
only be used in a judicious manner, as a necessary evil but not like preventing the right to
our lives because we belong to a minority category or from lower castes.

10
Puranlal Lakhanpal vs Union of India
11
State of Bombay vs Atma Ram
12
Ram Krishna vs State of Delhi
13
Article 14: Equality before law
14
Article 19: Protection of certain rights regarding freedom of speech etc.
15
AK Roy vs Union of India, 1982, SCR 272, DD Bhatia vs State of Jammu and Kashmir, 1956 SCR 948,
Sukhpal Singh vs State of Punjab 1990 SCC 35
 Literature Review

 Alexandrowicz, C. (1961). PERSONAL LIBERTY AND

PREVENTIVE DETENTION. Journal of the Indian Law
Institute,3(4), 445-458.

This is a law journal published by Charles Henry Alexandrowicz where he has basically
tried to see the laws of preventive detention from the eyes of the English law. It has
also tried to explain how the upheaval during partition in 1947 led to the provisions of
preventive detention being established in the constitution because it was very important
at that time to keep the communal disharmony to a minimum. The author has also cited
the Alladi Krishnaswami Aiyyar case for explaining further the preventive detention
laws in India. Along with India, the author has also spoken about the preventive
detention situation in the US.

 Jariwala, C. (1992). Journal of the Indian Law Institute, 34(4), 596-

600.

Here the author explains that there has never been a very smooth sailing of preventive
detention laws in India. The author brings out a comparative study between the preventive
detention laws during British Raj with the post independent laws. It talks about which of
the rights are violated when preventive detentions laws are exercised that is mainly Article
14, 15 and 16. He also additionally talks about Article 21 by citing the famous AK Gopalan
case.

 FRANKEL, L. (1970). COMMENTS ON PREVENTIVE

DETENTION. Journal of Legal Education, 23(1), 53-56.

In this journal the author has expressed his personal opinions on the matter of preventive
detention laws and how it affects the rights of an individual. He also talks about the
necessity of preventive detention since taking place of a crime can have severe
psychological impacts on the innocent. The preventive detention in general is being talked
about in this journal and also the authorities should first evaluate whether the person should
be detained on definite grounds and not purely out of apprehension.

Conclusion

It is a very challenging task to evaluate the constitutional validity of preventive detention

laws and it can be concluded that even though preventive detention laws in India serve a
certain restrictions on the fundamental rights of an individual, it sure is a necessary evil
that is required in the constitution to keep a check on the activities of the citizen so that no
one indulges in pre-judicial activities and disrupt peace and harmony among citizens. There
is a lacking of proper safeguards and the enforcement of proper safeguards which is why
the preventive detention laws seem to be unconstitutional. Judiciary should tighten the laws
so that the rights of the detainee are held and stop the gross abuse of power by the
authorities. The lack of the support of Union Government over these issues can also incline
towards authoritarian tendencies and sole barrier between social reality and dystopia.
Lastly, the whole project on constitutional validity of preventive detention presents several
angles of preventive detention where the government justifies why it is a necessary law but
one fact is true that the government cannot justify the abuse of archaic laws in the name of
collective interest of people.

While it is true that concerns for security is justified for using preventive detention as a
measure to avoid disruption in society but it would be a case of extreme fallacy to ignore
status quo which in the last so many years of independence has shown ample misuse of the
provisions.

Bibliography
 www.jstor.org
 www.legalservicesindia.com
 shodhganga.inflibnet.ac.in
 repository.law.umich.edu
 indconlawphil.wordpress.com
 www.researchgate.net
 ijldai.thelawbrigade.com
 www.aapkaconsultant.com
 indiankanoon.org
 www.insightsonindia.com
 lawtimesjournal.in
 heinonline.org