INTRODUCTION
“Preventive detention” refers to the legal practice of detaining somebody without a hearing to thwart possible risks to public safety or order. It enables law enforcement to detain people based on potential criminal activity and suspicion of future unlawful activities and is governed by statutes like the National Security Act and the Maintenance of Internal Security Act. Concerns about the abuse and infringement of civil liberties, however, intended to ensure stability, have spurred discussions regarding its necessity and application within India’s democratic framework.
Background
When addressing the goal of preventive imprisonment during World Wars I and II, England established several emergency acts for the first time for the emergency. During the pre-independence regime, the then government arrested any person on mere suspicion. In Independent India, in 1951 the Preventive Detention Act came into force[1].
Arrested or detained people are protected by Article 22 of the Indian Constitution. It consists of two parts. The first part addresses the matters of ordinary law, such as those in which someone is imprisoned during a criminal inquiry. The detention of people without a trial or conviction is covered in the second section’s discussion of preventive detention cases.
RELEVANT CASES
In AK Gopalan v. the State of Madras[2], the lawfulness of preventive detention was questioned in the Supreme Court and the court held it valid with exceptions of some provisions. In Prem Narayan v. Union of India, the Allahabad High Court held that Preventive Detention hampers the personal freedom of an individual. In the case of Nand Lal Bajaj v The State of Punjab and Anr(1981).[3], the court talks about restricting the judges from encroaching on legislature and executives. In Maneka Gandhi v. Union of India (1978)[4], the ambit of individual rights was broadened. Keshwanand Bharti v. State of Kerala (1973)[5], delves into the balance between state interests and individual rights. This case raises the idea that people’s fundamental rights, especially their civil liberties, are shielded against arbitrary modifications that could violate them, even when it serves the interests of state administration.
In Mariappan vs The District Collector and Others (2014), the Madras High Court laid down the objective of preventive detention which is to prevent the detente from doing anything harmful against the state and not to persecute them. In Abhayraj Gupta v. Superintendent, Central Jail, Bareilly (2021)[6], the Allahabad High Court held that if the accused is already in jail and there is no possible way for the accused to be released, the state and the courts shall refrain from exercising the power of preventive detention.
RECENT INCIDENCE
Recently, an appeal has been filed against an order of Jharkhand High Court dated 02.03.2023 of the appellant, which had confirmed the detention of the appellant, who was detained under the provisions of Jharkhand Control of Crimes Act, 2002.
The Act is about the “Externment” and “detention” of “anti-social elements” in the State of Jharkhand. The main criterion for a person to be detained under the Act is that he should habitually commit the offences punishable. The detention mentions the grounds for detaining the appellant, which fulfils the habitual offender criteria. The appellant is found to be accused in a total of 18 cases, from petty to heinous crimes.
The State Government based on the report of the Advisory Committee passed an order confirming the initial detention order and the order was extended twice, once for three months and then for six months.
This order was challenged before the court on the ground that the representation that the appellant had earlier made was not placed before the Advisory Board. The Government’s reply to this is that this was so as there was no representation of the detenue till that date. However, the appellant was able to prove his representation but he was denied his right to represent himself.
The Supreme Court ordered that the decision to extend detention becomes bad due to lack of representation of the accused (lack of due process of law), but it does not affect initial detention. The court added “All laws on preventive detention are necessarily harsh. They curtail personal liberty of an individual, who is kept behind bars without any trial.”[7]
ANALYSIS
The judgment as mentioned earlier is a perfect example of the balance between Civil liberty and the State’s interest. The initial detention by the state government on the basis that the accused is a habitual offender which was declared not bad upholds the state’s interest and the extended detention by the State government which was declared bad as it did not allow the accused to represent himself and as it is a breach of personal liberty indicates that civil liberty cannot be put at stake for state’s interest at all.
The case, Sunil Batra v. Delhi Administration (1980)[8], deals with prisoners’ rights. In this case, the Supreme Court implicitly considers the principle of “better than ten guilty persons escape than one innocent suffer”
In opposition to the maxim “better that ten guilty persons escape than that one innocent suffer,” preventive detention has the risk of impairing civil liberties. Prevention above due process can result in unlawful detentions, which compromises justice and human rights. By exposing the possible risks of unregulated preventative detention tactics, the principle urges care.
CONCLUSION
To conclude, the complex link between preventive detention laws and civil liberties highlights the thin line that nations must walk when balancing the interests of the state with those of the person. This study has delved into various aspects of this challenging issue, exploring how preventative detention might affect civil liberties such as the right to an attorney when an individual is accused. Recent occurrences, legal and ethical issues and case studies have all made it clear how important it is to have transparent, accountable, and fair processes.
Author(s) Name: Pratibha Jatav (National Law University Odisha)
Reference(s):
[1] Garg R, ‘Preventive Detention Laws in India’ (iPleaders, 29 December 2021)
[2]AK Gopalan v State of Madras (1950) 228 (SCC)
[3]Nand Lal Bajaj v The State of Punjab and Anr. (1981) 2041 (AIR)
[4]Maneka Gandhi v. Union of India (1978) 597 (AIR)
[5]Keshwanand Bharti v. State of Kerala (1973) 225 (SCC) 4
[6]Abhayraj Gupta v. Central Jail, (2021) 900 (SCC OnLine)
[7]Prakash Chandra Yadav @ Mungeri Yadav versus The State of Jharkhand & Ors. (2023) 529 (Livelaw (SC))
[8]Sunil Batra v. Delhi Administration (1980) 1579 (AIR)
