Preventive Detention Laws Extent in Relief to Fundamental Rights
This Blog is written by Ojaswi Gupta from NEF Law College, Guwahati. Edited by Ravikiran Shukre.
India became free in 1947 and our Constitution was adopted in 1950. They gave the Prevention of Detention laws a name of sanctity in the Chapter of Fundamental Rights.
There are certain parts, areas in our Constitution that are not our rights but are a danger to the people. Article 22 is one such part. It is also one of our fundamental rights which states three important points.
On one hand, Article 22 (1) and (2) gave certain safeguards when a person is under arrest, but in compliance with Article 22 (3), such protections are not given to the arrested detention. This is basically an expression to usher in society, with freedom of speech and expression. Preventive Detention is not settled and still under process and the existing laws tend to promote the exercise of the powers.
Detention in simple words means taking someone under arrest, whether legally or illegally. But in regard to the security of the State – it is Preventive Detention.
There are 2 types of detentions:
• Punitive Detention – It is detention as punishment for a criminal offense after it has been committed.
• Preventive Detention – It is a person’s incarnation in advance to prevent the further possibility of commission of a crime.
“The Supreme Court stated that the purpose is not to punish a person, but to obstruct him from doing something wrong”
1.2 SIGNIFICANCE OF THIS DEVELOPMENT
The major and one of the most important significance is that the objective of preventive detention was to deter someone or obstruct him from future wrongdoings. In early times, there was a ‘Theory of Deterrence’  it is similar to that. It would deter people from committing crimes. It is basically done keeping in mind the security of the State and for the services essential for the community.
The first Defensive Act was passed in 1950 and since then many laws have been made such as TADA 1985, POTA 2002, etc.
1.3 IMPACT OF THE ACT
The major impact of the preventive detention laws is that it is a major flaw in the Constitution of India and especially Article 22. How an article brings about the greatest impact is discussed below:
• Under the Article, preventive detention may be implemented anytime and any person can be detained anytime without any proper trial, thereby destroying the basic sense of personal liberty as given in Article 21  of our Constitution.
• It prevents Article 4 of the International Covenant on Civil and Political Rights (ICCPR) as it allows detention in peace times as well.
• It does not provide any protection to reduce the torture but takes the person’s vulnerability and treats them accordingly.
• The detainment period is 3 months.
• In absence of proper laws, the preventive laws of detention have been misused against the lower sections of the society including the Dalits and OBC’s.
• In a huge country like India, where many subversive activities like terrorist attacks are carried out by the citizens of the country itself, the laws of preventive detention need some changes to be prevalent.
1.4 PROVISIONS IN THE LEGISLATURE
To prevent non-violent use of the laws of preventive detention, certain provisions or safeguards were adopted changing the earlier circumstances and the constitution was amended with new provisions in Article 22.
• As per earlier provisions, the detention period was 3 months. But later, if the detention was extended beyond 3 months, the matter is automatically taken by the Advisory Board consisting of higher authorities with qualifications as of judges. The period of detention must be extended only if the Board allows it to.
• The detainee must know on what ground he has been detained before the procedure. Only if the detainment is in the public interest, only then the ground must be hidden.
• The detainee must be given equal opportunity to get himself a representative, who would help him with the procedure and also if innocent, helps to get justice.
These provisions were adopted to ensure that the laws of preventive detention are not misused, but it becomes a place or a chapter when talked of fundamental rights. These provisions can only be exercised by an Indian citizen and not an enemy alien.
1.5 CASE LAW(S):
There are certain case laws in India that prove that preventive detention was there where cases of national defense and preservation of peace were taken into consideration.
The very first case where Preventive Detention 1950 was challenged before the court was:
The petitioner was a big political leader who was detained by the police of Madras. He filed a writ petition under Article 32 for violation of his fundamental rights under ‘Right to Freedom’. The Preventive Detention Act was challenged before the Honorable Court. The Supreme Court refused to entertain the inadequacies of the Act and stated that none of the provisions of the Act violates the fundamental rights of the Constitution. The order was passed that the detention was justified on the grounds of legally established procedure. It was held invalid by the Court.
In this case, the police were surrounding his house. He filed a petition stating that the actions of the police were violating his fundamental right under Article 19 and Article 21 especially as it is Right to Privacy. The order went in favor of Kharak Singh as the Court stated that “Domiciliary visits” i.e., a visit to a private dwelling without any reason at night is Unconstitutional and is infringing the person’s personal liberty under his rights.
In this case, the petitioner’s passport was impounded by the Centre under Section 10 of Passport’s Act, 1967. Here, the Honorable Supreme Court not only overruled the A K Gopalan case but also changed the entire definition of ‘Personal Liberty’.
The Court held that with respect to Article 19 and 21 of the Constitution, it stated that Article 21 is controlled by Article 19. Also, it was made clear under the law that Article 21 will not include Article 19 in its procedure. There was no infringement of any fundamental right and any statute shall stand up to the scrutiny of the Articles.
This case is not only important for the interpretation of Article 21, but also it changed the entire viewpoint of Chapter III of the Indian Constitution. Article 21 now only referred to the arbitrary action of the organs of the government.
This is a case of the Judiciary taking into consideration Preventive Detention. Here, the Honorable Supreme Court stated that the Court does not have the power to substitute its own supposition. It was mainly taken up for the Maintenance of Internal Security Act,1971. Here the detaining authority was influenced by material detenu.
This was a petition under Article 32 of the Constitution for issuance of a writ of Habeas Corpus for release of his son who was detained by an order of the Magistrate. The Court held that the absence of legal representation as a framework was conflicting with the fundamental thought of parliament.
As per my analysis of the whole Preventive Detention Act, it must be stated that the Act was taken up suddenly. It was studied in its entirety from the British period by historians. India is a very vast country with diverse religions, languages, cultures, places, etc., there is a very big need for the Preventive Detention Act, but it needs to be adopted by taking into consideration the pros and cons. The Act can prevent the security of the nation from unforeseen threats but also can be a necessary evil. The Act can also violate the fundamental rights but also highlights the increase of incapability of administration.
It must be noted that law and order should be made to answer all the questions of the general public with sufficient justification. The detention order proves to be an analysis as a clarification of the concepts of public security.
India is the most effective country in terms of preserving dignity, democracy, autonomy, etc. as a developing country using the methods of preventive detention and the security laws to protect national peace. It is acceptable that preventive detention is not completely fair, just, and a reasonable way to alter the scope of Articles 19 and 21 stating the Right to Life and Liberty. But the Court has always put emphasis on the fact that giving detention to people without giving them a proper trial or giving them a chance to prove their sanctity is not what our Government and Judiciary stand for.
The mere expectation of the government can never act as a sufficient and adequate way to intervene in personal liberty. We as citizens of India must be knowledgeable enough to know about our personal freedom. The Articles enshrined as our Fundamental Rights are made in order to protect our personal rights and not curtail them. And the life and personal freedom of the person detained must be taken care of.
 Article 21
 [(1978) AIR 597]
 [(1975) AIR 550]
 Legal Readings
 Indian Law Portal
 Legal Services India