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INDIA N JOURN AL OF LEGAL PHIL OSOPHY

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AN EXPLORATION OF THE LEGAL PROVISIONS TO SAFEGUARD THE VICTIMS AGAINST THE PREVENTIVE DETENTION IN INDIA

Bandna Shekhar* Dr. Sidheswar Patra**

Introduction

India is a country having different religions, different casts, different cultures, different languages, different norms and different customs etc. etc. Caste and communal violence is very common in India. National security, integrity and individual dignity is of core values in the constitution of India, Article 21 of the Constitution of India guarantees a life with dignity to each individual, is a fundamental right and is non-derogable. 1

The attitude of the state towards criminals has ever remained harsh to suppress and to shun the criminal activities in the public interest. 2 The framers of our constitution decided to retain preventive detention as a means to curb anti national activities. Law of preventive Detention, of detention without trial is an abhorrence to all those who adore personal liberty. Such a law hinders the basic human freedoms which we all appreciate and which occupy prime position among the higher principles of life 3 .

The nature of Preventive Detention Law is totally different from the arrest and detention of ordinary discipline of a criminal jail and it is applicable in both, emergency and peaceful situation. In case of arrest and detention various safeguards are provided to the arrested person under Article 22(1) and (2) but these safeguards are not provided to the arrested detenu under the preventive detention law under Articles 22(3). The safeguards in connection with this preventive detention are provided under clauses (4) to (7)

*Research Scholar & ** Assistant Professor, Uttranchal University, Dehradun

1 M.Tahsheen-uz-zaman, “can law provide solution”, competition wizard, January 2002, P 56

2 Prakash Singh, “making security forces more effective”. Special issue “Spectrum” The Tribune, Jun5, 2003, P 7

3 H. R. Khanna, “Legal classics making of India’s constitution”2nd ed.2008, P 61

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At present, we have numerous legislations on this subject, but how far the procedures are adequate to protect the interest of a detenu is an unresolved question. The legislative provisions are more favourable towards the arbitrary exercise of powers and it recommends for an immediate action from the side of judiciary.

The judiciary has the vital and primary role to play in such detention cases. The reason is that, in case of a criminal proceeding, a person’s liberty is curtailed under the law as an act of punitive detention, where the application of a judicial mind is ensured prior to the detention, but in preventive detention cases, the executives are empowered with draconian powers with respect to detention orders. Their subjective satisfaction is predominant over the detenu’s interest and the review of its action is given to the Advisory Boards, which is also an executive authority. In such circumstances, there is every possibility of abuse and misuse of power by the detaining authorities, which deprives the detenu of his fundamental right of personal liberty. In many cases, the political purpose and personal retaliation plays a major role in making arbitrary detentions. In simple words, the power to detain a person as a preventive measure has become a dodgy weapon in the hands of state machineries to fulfil their unlawful object. 4

About the Study

Researchers here want to find out the safeguard provisions under different laws laid to help the detenu so detained under preventive detention and also to throw some light on the difficulties a detenu faces to avail the rights provided by different laws. It is acceptable that there is hard need of preventive detention laws according to the situation of the country but it is also very much clear from various evidences that these laws have been misused. In May 3 rd , 2003 a division bench of the Madras High Court penalised the Kancheepuram collector and a police inspector to pay a sum of one lakh rupees for illegally detaining one Thameem Ansari under the Goondas

4 Available at: http://www.indianlawcases.com/-Preventive%20detention (visited on3rd Jun 2015)

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Act 5 . False and Flimsy cases are framed against the individuals, they are tortured in various ways; Farooq Ahmed an engineer on the suspicious grounds that he was involved in May 1996 (Lajpat Nagar) Delhi blast and was acquitted after 14 years of his life languishing in jail, during that time he was living the life of an unknown prisoner in jail or past 12 years. Which is totally against the Indian criminal jurisprudence which says that “one is presumed innocent until proven guilty’’ Life imprisonment means a maximum imprisonment of 14 years, which he had almost completed. It is worth noting that he had even not crossed his under trial period, thus this is also showing slow justice delivery system of India which is also an advantage to those who really misuse these laws for their own selfish ends.

The most thwarting point is the detention is made merely on the suspicion grounds against any individual that s/he may commit any crime in future, then that individual is denied all those rights which are available to a person arrested under general arrest. Which is totally against one’s right to life and personal liberty. Filing of hebeas corpus writ under Article 32 and 226 of Supreme Court of India and the High Court is the only remedy available against illegal Detention. Sunil Batra v/s Delhi Administration 6 A post card written by the detenu from the jail was converted in to a writ petition for Hebeas corpus. The writ would lie if the power of detention has been exercised mala fide.

For the detention of an individual who is detained so long and during the detention in many of the cases it is found that the human rights are being violated through torturing and converting the preventive detention in to the punitive detention. Who is going to indemnify for the loss which is done against that individual? Here, researchers are trying to throw the light on the limited security provided by stringent provisions of preventive detention and due to which it is very difficult to avail fundamental rights.

5 A.Faizur Rehman, “Preventive detention an Anarchronism” The Hindu, September 07, 2004

6 AIR 1980 SC 1579

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Nature of Preventive Detention

The object of preventive detention is not to punish but to intercept the detenu from doing something prejudicial to the state 7 . The entire scheme of preventive detention is based on the utopia that the state is to protect the interest of the country and welfare of the people from anti social activities by anti social elements affecting maintenance of public order, economic welfare of the country etc 8 . Putting the interest of the nation above the preventive detention laws have been made for effectively keeping out of motion the detenu during a prescribed period of time by means of preventive detention. 9 Realistic result of the adoption of preventive detention as a permanent feature of our constitution is that even in peace time, the court cannot question for the adequacy of reasons for depriving a detenu of his liberty. 10

One it is an anticipatory measure and does not relate to an offence while the criminal proceedings are to punish a person for an offence committed by him. 11 Under preventive detention a detenu is detained by an order of the executive authorities, who after analysing the previous criminal acts of the detenu deems it necessary to detained the detenu so that the detenu may not Commit any crime at present. But there is huge possibility of misuse of this power by the executive authorities.

Constitutional Safeguards and Restrictions

Fundamental rights guaranteed under the Constitution include the right to equality, freedom and personal liberty, the right to religion, the right to constitutional remedies and the right against exploitation. Article 19 of Constitution include the right to speech and expression, peaceable association, free movement, residence and occupation. 12 However, the state may impose “reasonable restrictions” on such

7 Ankul Chandra pradhan v/s Union of India AIR 1997, SC 2814

8 Durga Das Basu, “commentary on the constitution of India’’, 8th edition 2008, P 3304

9 Pushpa devi M. Jatia v/s m. L. wadhwan, AIR1987 SC 1748

10 Gopalan v. State of Madras, (1950) SCR 88

11 warton law lexicon 15thed, 2009, P 1338

12 Article19

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freedoms in the interest of inter-alia “sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order,” etc. 13

Constitutional provisions on emergency

Article 352 of the Constitution empowers the President – the head of the executive branch of state to declare a state of emergency, through a proclamation, either nationally or in a particular territory, if there is a threat to security, by war or external aggression or armed rebellion. As mentioned earlier fundamental rights under Article 19 may be suspended during this time. 14 However, Article 359 clarifies that fundamental rights under Articles 20 and 21 containing guarantees of fair trial and the right to life and liberty respectively, cannot be suspended even if other rights are suspended in the area in which the Proclamation of Emergency is in operation.

Safeguards under Articles 20 and 21

Article 21 recognizes the right to life and prohibits the deprivation of life or personal liberty of any person except in accordance with the ‘procedure established by law’. Meaning thereby that ‘procedures’ mentioned in Article 21 must be ‘just, fair and reasonable”. 15

The Supreme Court, in DK Basu v State of West Bengal 16 further extended these procedural guarantees by stipulating guidelines to be followed by the police during arrest and interrogation. The right to life has also been interpreted to include the right to privacy 17 and the freedom from cruel, inhuman or degrading treatment 18 within its ambit.

13 Article19 (2)

14 Article 258

15 Menaka Gandhi v/s union of India (1978) 1SCC 248

16 1997(1) SCC416

17 Kharak Singh v State of Uttar Pradesh AIR1963 SC 898

18 Francis Coralie Mullin v Union Territory of Delhi AIR 1981 SC 746

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Article 20 guards against the application of retroactive criminal laws 19 , double jeopardy 20 and compelled self-incrimination. 21

Preventive Detention under Indian Constitution

Person cannot be arrested and detained without being informed why he is being arrested.

That

person

cannot

be

denied

to

be

defended

by

a

legal

practitioner of his /her choice. That person is having a right to be presented before the nearest court within 24 hours. The custody of the person cannot be beyond the prescribed period by the authority of the magistrate.

The

Article

22(1)

and

22(2)

make

the

above

provisions.

However, Article 22(3) says that the above safeguards are not available

to the following:

If the person is an enemy alien,

If the person is arrested under certain law made for the purpose of “Preventive Detention”.

The first condition seems justified, because when India is in war, the citizen of an enemy country may be arrested.

But difficulty arises with the second clause which was not easy to justify by the constituent assembly. Under Preventive Detention Laws a person can be put behind the bars for two reasons. One is that he has committed a crime. Another is that he will commit a crime in future. Thus Preventive Detention is made merely on the assumption that crime will be committed by a particular person and that can be detained in peacetime. Isn’t it against the safeguards of citizens as provided by Article 22? It seems that preventive detention laws are in

19 Article 20 (1) - “No person shall be convicted of any offence except for the violation of the law in force at the time of the commission of the act charged …”

20 Article 20 (2) – “No person shall be prosecuted and punished for the same offence more than once”

21 Article 20(3) – “No person accused of any offence shall be compelled to be a witness against himself

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conflict with democratic provisions of the constitution. These provisions are mentioned in Article 22 (1), 22(5), 22 (6). These are:

every case of preventive detention must be authorized by law and not at the will of the executive. The Preventive detention cannot extend beyond a period of 3 months. Every case of preventive detention must be placed before an Advisory Board composed of Judges of the High Court (or persons qualified for Judges of the High Court) the case must be presented before the Advisory Board within 3 months, a continued detention after 3 months, if Advisory Board deems it necessary. The person will be given an opportunity to afford earliest opportunity to make a representation against the preventive detention. No person can be detained indefinitely. Article 22 (7) provides exception to the above provisions. This Article mandates that: when the parliament prescribes by law the circumstances under which a person may be kept in detention beyond 3months without the opinion of the advisory board. 22

Under the case of Sambhu Nath Sarkar v/s State of West Bengal 23 Supreme court held Section 17 of the maintenance if Internal Security Act ,which is talking about detention for more then3 months, as unconstitutional.

As a matter of fact, both the Central and state governments authorities have been made to empower for enacting preventive detention laws. First Special National Laws that apply in non- emergency situations such as preventive detention law of the past. Second, area specific central laws enacted by central government, these laws are applied to select areas to deal with insurgencies and militancy. Third, special Laws enacted by the state governments to deal with public and organised crime. 24

22 Available at: http://www.gktoday.in/article-22-and-preventive-detention-in-india/ (visited on 5th Jun 2015)

23 A.I.R. 1973 S.C. 1425

24 U.K. Singh, the state, democracy and Anti-terrorism Laws in India, 2007, P16

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Soon after the enactment of constitution, Parliament passed the first Preventive detention Act, 1950, which was brought into force within weeks of adopting the Constitution. 25

The validity of the Act was challenged in the Supreme Court in the A.K. GOPALAN V/S STATE OF MADRAS 26 . The court held this Act constitutionally valid except some provisions. Although this law lapsed in 1969 yet before it expired, it was amended for seven times, each expansion was to make it valid for 3 more years and thus extended till 31st december1969.

In 1971 an amended of Preventive Detention Act, The Maintenance of Internal security Act (MISA) was passed. It brought back many of its provisions of Preventive Detention and repealed in 1977. 27 Then in 1980, Parliament enacted the National security Act (NSA), 1980 which continues to be in force today, retain some of the PDA and MISA provisions and allows preventive detention for a maximum period of 1year. 28

Parliament also enacted the conservation of foreign exchange and Prevention of Smuggling Activities Act1974 (COFEPOSA) 29

of

Supplies of Essential Commodities Act, 1980 30 all of which reflected

The

Prevention

of

Black

Marketing

and

Maintenance

25 The preventive detention Act, 1950 authorised detention for up to 12 month to prevent a person from acting in a manner prejudice to the defence or security of India; India’s relations with foreign powers, state security or maintenance of public order, or maintenance of essential supplies and services

26 AIR 1950 SC50

27 supra N 8, P 3312

28 Section13of the National Security Act, 1980, although this provision also provides that the appropriate government may modify this period.

29 COFEPOSA sought to plug violations of foreign exchange regulation and smuggling activities which had adverse effect on the national economy by authorizing Preventive Detention of persons suspected of smuggling the abetting or dealing with or connect with smuggling of goods (see conservation of foreign exchange and Prevention of Smuggling Activities Act, 1973

30 similar to other Preventive Detention Legislations, PBMSECA also authorizes the executive to pass detention orders against persons, dealing with black-marketing and Hoarding of essential commodities (see Preventive of Black Marketing and Maintenance of supplies of essential commodities, Act, 1980

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realities of economic hardships or separatist challenges to the authority of parliament.

National Laws

Armed forces Special power Act (AFSPA)

Armed Forces Special Powers Act 31 was first passed by the parliament of India in 1958 to apply to North East of the Country but later extended to Punjab(1983) 32 and Jammu & Kashmir(1990).It however, remained in force for over five decades. 33

The AFSPA allows the government to define, at its discretion (the Act’s language is deliberately vague) and without judicial review, an area as ‘’disturbed’’ and empowers the armed forces to shoot, kill, conduct warrantless searches and arrests, arbitrarily detain people and demolish structures in order to “maintain the public order’’. 34

Unlawful Activities Prevention Act (UAPA), 1967

This law accords the central government the power to declare “any association that engage in activities that support any secession claims” or disclaims, questions, disrupts” the Sovereignty and territorial integrity of India. This was amended twice in 2004 and 2008 to include counterterrorism provisions some of which were contained in previous anti-terror laws, namely The Terrorist And Disruptive Activities Act, 1987 (TADA) and the Prevention of Terrorism Act,2002 (POTA) 35

Terrorist and Disruptive Activities Act, 1987 (TADA)

This law granted broad ranging powers to law enforcement agencies that went well beyond those prescribed under the code of

31 Armed Forces (special powers) ordinance, 1942

32 Act now no longer applies to Punjab

33 supra N 18

34 Ibid

35 Dr. Surat Singh, Law relating to prevention of Terrorism, 2003, P60

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Criminal Procedure and the Indian Evidence Act. There was a huge misuse of the TADA and it was allowed to lapse in 1995. 36

Prevention of terrorism Act, 2002 (POTA)

After an attack on Indian Parliament in December2001, the Prevention of Terrorism Act was brought in to force in 2002. The enforcement outcome of this law were also strikingly similar to that of TADA, hence many of the arrests under the POTA were conducted in minorities, Dalits and tribal were used as a tool to harass political opponents. It was repealed in 2004. 37

The National Security Act, 1980

security

(Amendment) Act, 1980(65 of 1980) Amended so many times. 38

The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974

To Prevent Smuggling of goods into or out of India and to check diversion of Foreign exchange from official channels, various measures taken by the government from time to time had been under the constant review. This Act was amended in 1975, 1976, 1987, 1988, 1990, 1993, and 1996 respectively 39

The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988

It was brought in to form to deal with the persons engaged in illicit traffic of drugs and psychotropic substances within the country. It was amended in 1990, 1993 and 1996. 40

It

came

on

the

statute

book

as

“the

National

36 Terrorist and Disruptive Activities Act, 1987 (TADA)

37 Prevention of Terrorism Act, 2002(POTA)

38 Preventive Detention Laws, Bare Acts, 2014, universal Law publishing co. Pvt. Ltd, New Delhi, P 1-2

39 id at 12-13

40 id at 26-27

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The prevention of Black Marketing and Maintenance of supplies of Essential Commodities Act, 1980

The essential Commodities Act of 1955, containing comprehensive provisions for the regulation of production, supply, distribution, prices and trade and commerce in commodities was found not adequate to deal with effectively with malpractices like black marketing, hoarding, profiteering etc. In order to deal with such malpractices and to arrest the unjustified rise in price of essential commodities, the prevention of black marketing and Maintenance of Supplies of Essential Commodities Ordinance, 1979 was promulgated on 5 th October 1979. 41

State Laws

Mharashtra Control of Organised Crimes Act, 1999 (MCOCA)

It is applicable in the state of Maharastra and Delhi. 42 This law retains several provisions found in the erstwhile TADA. Significant among are provisions that allows confessions made in police custody to be used as evidence. This is demonstrated in investigative reports and practice that has shown rampant misuse of the MCOCA with confessions made in police custody being eventually retracted and no proper investigations in cases filed. 43

Jammu and Kashmir Public Safety Act, (JKPSA) 1978

It empowers the state to restrict movement to certain areas by declaring it to be a “prohibited place” or a “protected area”, and to maintain communal and regional harmony by prohibiting the circulation of the document prejudicial and detaining persons to prevent them from acting in prejudicial to the “security of the state” or “the maintenance of public order”. 44

41 id at 37-38

42 Another similar law” karnatka control of organised crimes Act”, was enacted.

43 Available at:http://www.tehelka.com/channels/mcoca (visited on 9th Jun2015)

44 Hashmi S.J; and Kashmir Public safety Act, 1978, May2007; www.counter current.org

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Chhatishgarh Special Public Safety Act, 2005 (CSPSA)

This law also empowers the state government to declare an organisation as being unlawful, criminalization as being unlawful, criminalize membership thereof and notify a place as being used for the purpose of unlawful activities. There is limited scope for review and appeal against notification of places under this law. 45

Rights provided for a detenu

No detention beyond 3 months. Sub clause (a) of clause (4) of the Article 22 provides that a law providing preventive detention shall not authorize the detention of a person for a longer period than three months. 46

First part of Article 22(5) gives a right to the detained person to be furnished with the ground on which the order has been made. 47 Sub section (3) of section3 of the COFEPOSA Act1974 provides that the ground of detention should be communicated to the detenu within 5 days and in exceptional cases 15 days. 48 Section 8 of the National Security Act, 1980 requires the detaining officer to communicate to the detenu the grounds on which the order of detention has been made promptly. 49

Second part of Article 22(5) provides that earliest opportunity of making a representation against the order of detention should be given to the detenu. 50

Section 8 of Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act is also providing that the detenu shall have the right of making a representation to the appropriate government. 51

45 Chhatishgarh Special public Safety Act, 2005

46 H.M. Seervai, “Constitutional Law of India, 4th ed. Vol.2, 2014, P 1089

47 Supra N 45, P 1090

48 Supra N 39

49 Universal’s Encyclopaedia of Important Central Acts &Rules, 4th ed. Vol.16, 2008, P 16.696

50 Supra N 46

51 Supra N 47

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Exceptions to These Rights

Period of detention can be extended more than 3 months if before that Advisory board is of the opinion that there is sufficient cause for such further detention. 52

Section 8 of the COFEPOSA Act, 1974 as Amended Act of 1984, says Advisory board is to state its opinion not merely whether detention is necessary but whether ‘continued’ detention is necessary. 53

Clause (6) is an exception to clause (5) of Article 22 It says that those facts to which the detaining authority considers to be against public interest to disclose, those facts will not be disclosed to the detenu. 54

Section 10(3) of Preventive detention Act1950 excluded the right to appear in person or by any lawyer before the Advisory Board. 55

Section8 (e) of the COFEPOSA Act.1974 says that detenu shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board. 56

Judicial Role

While Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law, Article 22(1) and 22(2) provides protection against arrest and detention in certain cases, Article 22 (3) provides for preventive detention as an exception to Article 21 and 22(1) and 22(2).

Article 22(1) of the constitution makes it a fundamental right of a person detained to consult and be defended by a lawyer of his choice. But Article 22(3) specifically excludes the applicability of clause (1) of Article 22 to the cases of preventive detention.

52 Supra N 45

53 Supra N 39

54 Supra N 22

55 section of Preventive detention Act1950

56 Supra N 39

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In A.K. Gopalan v/s state of Madras 57 it was contended that Article 22 is a self-contained code, and therefore, a law of preventive detention does not have to satisfy the requirements of Article 14, 19 and 21

In Khudiram Das v/s state of west Bengal and others, 58 a four judge bench of the court held that although a preventive detention law may pass the test of Article 22 yet it has to satisfy the requirements of other fundamental rights such as Article 14,19and 21, while dealing with the constitutional validity of MISA

In Haradhan Saha’s 59 case, the bench said, “The observation in Saha’s case not debar the authorities from passing a detention order under a preventive detention law.“It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (IPC or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to.

In Sunil Fulchand shah v/s union of India 60 , chief justice Dr. A.S. Anand speaking for the majority noted that personal liberty is one of the most cherished freedoms, perhaps more important than the other freedom guaranteed under the constitution. It was for this reason that founding fathers enacted the safeguards in Article 22 in the constitution. So as to limit the power of the state to detain a person without trial, which may otherwise pass the test of Article 21 by humanizing the harsh authority over individual liberty.Since it is a precautionary state’s action, intended to prevent a person from indulging in a conduct, injurious to the state and maintenance of public order. The restrictions placed on a person to preventively detaine must be minimal.

57 (1950) SCC 88

58 (1975) 2SCC 81

59 (1975) 3SCC 198

60 (2000) 3SCC 409

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In Dropti Devi & ANR.V/S Union of India & ORS 61 it was held by the court on the touchstone of constitutional jurisprudence, as reflected by Article 22 read with Article 14,19and 21, that there is no constitutional mandate that preventive detention cannot exists for an act where such act is not a criminal offence and does not provide for punishment which is an illegal activity, the law can provide for the preventive detention if such act is prejudicial to the state security.

Conclusion

Laws of preventive detention cannot, by backdoor, introduce procedural measures of a punitive kind. Detention without trial is an evil to be suffered, but to no greater extent and in no greater measure than is minimally necessary in the interest of the country and the community. It is neither fair nor just that the detenu should have to suffer detention in ‘such place’ as the government may specify. So long as the preventive detention law is made within legislative entry and does not violate any of the conditions or restrictions on that power, such law cannot be struck down on the specious ground that it is circulated to interfere with the liberties of the people. One cannot therefore, contend that preventive detention is basically impermissible under the Indian Constitution. Though it is now well settled that the right in part iii of the constitution are not mutually exclusive and therefore, a law of preventive detention under Article22 must also satisfy Arts.14, 19 and21, it is also equally settled that a law of preventive detention cannot be held unconstitutional for the reason that it violates Arts 14, 19, 21 and 22.The constitutional philosophy of personal liberty is an idealistic view. The curtailment of liberty for reasons of states, security, public order, disruption of national economic discipline, etc. is envisaged as a necessary evil administered under strict constitutional restrictions.

The state must compensate the acquitted detenu in lieu of the losses in terms of the life , health, income, relations, social status and profession etc. etc.

61 (2012) 6S.C.R.307

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There should be a mechanism to ensure that all the rights provided by the constitution of India are made available all the time to the detenu during the period of detention.

Allegations of the abusive conduct should be taken seriously and there should be investigation by competent authority.

There should be an independent body of law to look after these

cases.