THE PREVENTIVE DETENTION LAWS IN INDIA - PERISHING HUMAN VALUES IN THE NAME OF SUSPICION

SILVY SHEETAL

No.8, 3rd Cross Street,CIT Colony, Mylapore, Chennai, Tamil Nadu-600004 Copyright © Silvy Sheetal All Rights Reserved. ISBN 978-1-63606-071-2 This book has been published with all efforts taken to make the material errorfree after the consent of the author. However, the author and the publisher do not assume and hereby disclaim any liability to any party for any loss, damage, or disruption caused by errors or omissions, whether such errors or omissions result from negligence, accident, or any other cause. While every effort has been made to avoid any mistake or omission, this publication is being sold on the condition and understanding that neither the author nor the publishers or printers would be liable in any manner to any person by reason of any mistake or omission in this publication or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this work. For any defect in printing or binding the publishers will be liable only to replace the defective copy by another copy of this work then available.

DEDICATED TO The A Almight lmightyy Be Beffor oree whom the univ universe erse bo bows ws My P Par arent entss Mr. Brundab Brundaban an Ghadei & Mrs. K Kamini amini Ghadei & My Gr Grandp andpar arent entss Bles Blessing sing me fr from om the abode ooff LLor ord. d.

Contents Preface

ix

About Author

xi

1. Meaning & Scope Of Preventive Detention

1

2. The Object Of Preventive Detention - Not Punitive But

8

Precautionary 3. History Of Preventive Detention

16

4. Elaboration Of Clauses

33

5. Examples Of Preventive Detention Laws Since Independence

41

6. Grounds Of Preventive Detention

53

7. Need For Guidelines On Arrest

64

8. Constitutional Obligation To Provide Free Legal Aid To Every

86

Indigent Person 9. Amendments And Improvments

105

10. Present Scenario Of Detention In India

115

11. Difference Between Preventive & Punitive Detention

124

12. Misuse Of Preventive Detention

128

13. Safeguards Of Preventive Detention

140

14. Dealing With Unlawful Arrests And Detention

151

15. Preventive Detention And Human Rights

157

16. National Human Rights Commission

172

17. International Standard Of Preventive Detention

179

18. Conclusion

201

References

205

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SPECIAL THANKS "Mr. Akash Kamal Mishra" CEO & FOUNDER - CYBERTALKINDIA Thank you so much for this opportunity Sir, for growing the optimism in the idea of writing a book, the trust, and confidence for making it an achievable dream.

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Preface Preventive Detention, the most contentious part of the scheme of Fundamental Rights in the part III of the Constitution of India. Article 22 is one such Fundamental Right which safeguards the rights of individuals who have been arrested and detained for committing an offense. “Preventive Detention” means an expedient process of, detention of an individual without trial. No right can override the essential and fundamental rights of a person’s being. Article 22, being one among the elemental Rights, is extremely important during a country like India, which features a massive population at a huge rate. This preventive detention becomes an essential tool in the hands of the executive when authorizing to arrest any person from whom reasonable suspicion arises that he can commit any cognizable offense or his activities are prejudicial to law and order to state and therefore the police can arrest that person without warrant. Matters of liberty are mere paper-pushing in government files. A judicial tribunal only comes in if there’s a requirement for detaining someone beyond three months. But, even then, there’s no trial, no periodic review, and no legal assistance for the detenu. The preventive detention laws are repugnant to the Democratic system in India. They are not found in any of the democratic countries. Preventive Detention thus is an action taken on grounds of suspicion that some wrong actions may be done by the person concerned. Article 22 remains valid even today like the conditions prevalent within the country at the time of independence. Author................,

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About Author Silvy Sheetal a 20-year-old from the “Soul of Incredible India”, Odisha. She is a Law student at University Law College, Utkal University, Bhubaneswar, Odisha. Pursuing her B.A.LL.B (Hons.) 5-year Integrated Program. She has completed her Senior Secondary from St. Joseph’s High School, Bhubaneswar, and her Higher Secondary from ODM International School, Bhubaneswar. An uncommonly tranquil human, passionate about having a creative mind. An ardent believer of the fact “thoughts become things.” Seamlessly believes in the abilities of human beings and hopes to be an able asset to a country like India. On-board with her 1st Non- Fiction “The Preventive Detention Laws in India”- “Perishing human values in the name of suspicion”.

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CHAPTER ONE

Meaning & Scope of Preventive Detention A man may be a little lower than the angels, he has not shed off the brute and the brute within is apt to break loose on occasions. Such aberrations in human behavior result in a crime. Crime, however, has acquired today a wide dimension, both in its enormity and variety. The criminal law is changing in a profound way. This fact was recognized about 2500 years ago by a Greek philosopher, Heraclitus of Ephesus. He had observed, “A major problem of human society is to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes license”. The history of democratic countries unfolds that realization of justice is the ultimate end of every nation. Obviously the realization of justice much depends upon the quality of the legal system it has accommodated. Indeed the nation’s quality of the legal system is measured by its commitment to the rule of law, the fairness of laws, and respect for human rights. (Quoted by Arthur T. Vanderbilt in his article “United We Stand”. It was through colonial hands that preventive detention came to the Indian sub-continent, and the British ushered in with it the power to restrict liberty. Unfortunately, even after the departure of the British, the leaders of independent India allowed the practice to continue and accorded it with constitutional recognition under Article 22 of the Constitution of India, making it one of the only countries to allow preventative detention during peacetime. Human rights are rights intrinsic to every single person, insignificant to our nationality, spot of home, sex, national or ethnic starting point, shading, religion, language, or some other status. We are for the most part similarly qualified for our human rights without separation as these rights •1•

THE PREVENTIVE DETENTION LAWS IN INDIA - PERISHING HUMAN VALUES IN THE NAME OF SUSPICION

are fundamental to us since we are human. These rights are totally interrelated, reliant, and indissoluble. Personal liberty, therefore, is in special jeopardy in India for which procedural safeguards against abuse of power of detention assume particular significance. These safeguards are the handmaid of equal justice. For the power of Government is colossal as compared to the powers of an individual, and as such the 146 freedoms of individuals can be safe only guarantees exist against unfair arbitrary and unequal treatment. The term ‘detention’ is frequently used in the process of law or even by common men in ordinary parlance to indicate the curtailment of someone’s liberty by taking him into custody. The Black’s Law Dictionary defines ‘detention’ as “The act or fact of holding a person in custody; confinement or compulsory delay.” It also defines, ‘Secret detention’ as “The holding of a suspect in an undisclosed place, without formal charges, a legal hearing, or access to legal counsel, and without the knowledge of anyone other than the detaining authority. This ‘secret detention’ as defined in Black’s Law Dictionary is to a great extent close to nature, meaning, and characteristics of arbitrary detention. It basically means; detaining someone without proper authority of law or if by the authority of law then maybe detaining through illegal procedures and thereafter not giving the detainee a fair opportunity of hearing or recourse to his legal counsel or access to his family members or friends and other fair legal rights which an arrested person is legally entitled to after being detained. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The basis of detention is the satisfaction of the Executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case a person is punished to prove his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which is necessary for reasons mentioned in Section 3 of the Act to prevent.” In procedural safeguards. any scheme of preventive detention, therefore, procedural guarantees assume significant importance, and it becomes •2•

SILVY SHEETAL

necessary to analyse how far the procedural guarantees laid down in the constitution on the law of preventive detention, it is based solely on the suspicion of the executive, as distinguished from punitive detention which is based on a judicial process and trial. go to safeguard individual freedoms without jeopardizing public interest or security of the state. A person can be put in jail/custody for two reasons1. One is that he has committed a crime. 2. Another is that he is the potential to commit a crime in the future. Article 22 did not exist in the Draft Constitution of India. It was added after the discussions of the Constituent Assembly. The first Preventive Detention Bill of Independent India was moved in 1950 by Sardar Patel. Patel had said that he had several wakeful nights before deciding if it was necessary to introduce the bill. The main difference is that whether a person is charged with a crime or not. During British rule, there were several acts that were put to use to suppress the freedom of movements, such as the East India Company Act of 1784, the Bengal State Prisoner’s Regulation of 1818, the Defence of India Act of 1915, and the Anarchical and Revolutionary Crimes Act of 1919, popularly known as the Rowlatt Act. The Regulation of 1818 laws allowed for detention based on “reasons of State” that were not “sufficient ground to institute any judicial proceeding.” From the time the country secured its Independence till 1977, except for a period of nearly two years from 1969-1971, free India had the dubious distinction of having these extraordinary, mischievous, and ‘unlawful’ laws throughout. To make it easier to understand, a person can be put in jail/custody for two reasons: 1. One is that he has committed a crime, and 2. Another is that his potential to commit a crime in the future. There is perhaps no authoritative definition of expression ‘Preventive Detention’ (PD). The expression traces its origins in the language used by the Lord Justices in England while examining the nature of detention under the wartime provisions of the Defence of Realm Consolidation Act, 1914 which was enacted during the First World War The keyword in the expression is the adjective ‘Preventive’ which is used in contradistinction to ‘Punitive’, PD is thus not a punitive but a precautionary measure which has the rather pious object of not to punish a man for having done something wrong but to intercept him before he does it and to prevent him from doing •3•