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AN EXPLORATION OF THE LEGAL PROVISIONS TO SAFEGUARD

THE VICTIMS AGAINST THE PREVENTIVE DETENTION IN INDIA

Article · December 2015

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 INDIA N J OURN AL O F LEGAL PHIL O SO PHY
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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 life3.
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 3rd,
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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Act5. 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 Administration6 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 state7. 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 etc8. 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 Bengal16
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 privacy17 and the
freedom from cruel, inhuman or degrading treatment18 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 , double jeopardy20 and compelled self-incrimination.21
19

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
23
Bengal 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
The Prevention of Black Marketing and Maintenance of
Supplies of Essential Commodities Act, 198030 all of which reflected

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 Act31 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
It came on the statute book as “the National 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 respectively39
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

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 5th 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 Madras57 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’s59 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 India60, 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 & ORS61 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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 INDIA N J OURN AL O F LEGAL PHIL O SO PHY
ISSN : 2347- 4963; IMPACT FACTOR : 1.116
VOLUME 3, ISSUE 4, DECEMBER 2015

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.

93

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