PREVENTIVE DETENTION LAW - POLITY

PREVENTIVE DETENTION LAW - POLITY

News: Telangana’s law under scanner: How preventive detention works

 

What's in the news?

●       As Telangana gears up for Assembly polls next month, its stringent preventive detention law is under the spotlight.

●       In at least three separate instances, the Supreme Court has red-flagged the Telangana government’s use of the law.

 

Key takeaways:

●       A pre-trial detention is not the same as preventive detention.

●       While the former is of an undertrial accused of a crime, a detainee can be taken into custody just as a preventive measure even if he has not committed a crime.

 

Preventive Detention:

●       Preventive detention means detention of a person without trial and conviction by a court. Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the near future.

○        The detention of a person cannot exceed three months unless an advisory board reports sufficient cause for extended detention.

●       Protection: Article 22 grants protection to persons who are arrested or detained.

●       Constitutional provisions: Article 22 has two parts—the first part deals with the cases of ordinary law and the second part deals with the cases of preventive detention law.

○       Two Types of Detentions:

■       Preventive detention is when a person is held in police custody only on the basis of a suspicion that they would conduct a criminal act or cause harm to society.

●       The police have the authority to hold anyone they suspect of committing a criminal offence and also to make arrests without a warrant or a magistrate’s authorization in certain cases.

■       Punitive detention, which means detention as a punishment for a criminal offence. It occurs after an offence is actually committed or an attempt has been made towards the commission of that crime.

 

Safeguards Available to the person detained:

●        At the first instance, a person may be taken to preventive custody only for 3 months.

○       The period of detention may be extended beyond 3 months, only on approval by the Advisory Board.

●        The detainee has the right to know the grounds of his/her detention.

○       However, the state may refuse to tell the grounds if it is necessary to do so in public interest.

●       The detainee is provided an opportunity to challenge his/her detention.

 

Who can make laws under Preventive Detention?

●       Parliament has the exclusive power to enact a law for preventive detention for the reasons connected with defence, foreign affairs or security of India.

●       Both Parliament and State Legislature have powers to enact a law for preventive detention for the reasons related to the maintenance of public order or the maintenance of supplies or services essential to the community.

 

Parliament enacted the following preventive detention laws:

  1. Preventive Detention Act, 1950. It expired in 1969.
  2. Maintenance of Internal Security Act (MISA), 1971. It was repealed in 1978.
  3. Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA),1974.
  4. The National Security Act of 1980 (NASA).
  5. The Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act (PBMSECA) of 1980.
  6. Terrorist and Disruptive Activities (Prevention) Act of 1985 (TADA). It was repealed in 1995.
  7. Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA) of 1988.
  8. Prevention of terrorism Act (POTA), 2002. It was repealed in 2004.
  9. Unlawful Activities (Prevention) Act of 1967 (UAPA). It was amended in 2004, 2008, 2012, and 2019.

 

Arguments in Favour of Preventive Detention:

  1. Protection of National Security: Preventive detention laws are essential to safeguard national security by allowing authorities to detain individuals who may pose a threat to public safety, national security or the peace and order of the society.
  2. Proactive Measure to Prevent Crimes: Preventive detention can be used as a proactive measure to prevent crimes before they happen. It is often used to detain individuals who are likely to engage in criminal activities or who have already committed crimes in the past.
  3. Upheld by Judiciary: The judiciary has upheld the validity of such laws as they have been very useful in maintaining public order. The Supreme Court has also laid down guidelines to ensure that preventive detention is used judiciously and that individuals are not detained arbitrarily.
    1. In Ahmed Noor Mohamad Bhatti Vs. State of Gujarat, the Supreme Court upheld the constitutional validity of Section 151 of CrPC ruling that the abuse of this power by the police officer cannot render this provision as arbitrary and unreasonable.
    2.  In Mariappan v. The District Collector and Others case, it held that the aim of detention and its laws is not to punish anyone but to stop certain crimes from being committed.
  4. Constitutional Safeguards are Available: The Constitution of India provides several safeguards to prevent the misuse of preventive detention laws. The detainee is provided an opportunity to challenge his/her detention.
  5. Deterrent for the Potential Offenders: The fear of being detained can act as a deterrent to individuals who may be planning to engage in criminal activities.

 

Issues with the Preventive Detention Law:

  1. Used for trivial reasons: There have been several instances where the authorities have been found using the laws for petty issues. One of the strangest instances is when a person was detained as goonda for selling substandard chilli powder.
  2. Lack of Proper Definition: In various state laws, there’s no clarity on what grounds a person must be detained. Thus, law’s ambit is rarely restricted to habitual offenders.
  3. Colonial Legacy: Some experts argue that such laws are not needed in modern times as it was used against the freedom fighters during the British raj.
  4. Against Fundamental Rights: Such laws are in clear conflict with the Fundamental rights. detaining a person on uncertain grounds as he could commit a crime infringes the Fundamental Rights under Art 19 and 21.
  5. Misuse: In several instances, it has been seen that such laws have been misused in vindictive manner. In several cases political parties have been seen misusing the laws to punish the members of opposition. During the COVID period, various state governments invoked the National Security Act (NSA) on several opposition leaders and journalists.
  6. Safeguards aren’t Enough: Art 22 gives the person the right to be informed of grounds of his arrest, but the very same article also provides for non-disclosure of the grounds in public interest. The refusal of disclosing the grounds of detention is not a safeguard in true sense.

 

WAY FORWARD:

1. Uniformity in Laws:

●       Different states have different laws related to this as Law and order is a subject under state list. Still the central government must urge states to have some kind of uniformity through some model act.

2. Remove the Scope of Ambiguity:

●       The nature of the crimes under the laws must be clearly defined in a view to reduce the scope of ambiguity. For instance, Tamil Nadu’s Goondas Act’ covers offenders who range from bootleggers, slum grabbers, forest offenders to video pirates, sex offenders and cyber-criminals.

3. Ensure Effective Use of Laws:

●       The authorities must be trained in way that they act proportionately and do not misuse the laws. Also, the laws must be used to serve the greater purpose of maintaining public order and should not be used on trivial issues and for vendetta. As directed by hon’ble Supreme court in Mariappan v. The District Collector and Others case.

4. Use Alternate Methods:

●       The authorities must find some alternate and try to avoid detention if possible. The punishment for a crime should be directly related and proportionate to the severity of the crime committed. For example, a small fine might be appropriate for a minor offense, while a long prison sentence might be appropriate for a serious or violent crime.

5. Use in Rarest of the Rare cases:

●       The laws must not be used arbitrarily in any case. The gravity of the crime must be judged by the authorities and laws should be used in rarest of the rare instances.