In a free society like ours, the individual’s right to personal liberty is important. No one may be detained without a court order. Personal freedom is a fundamental human right.
The Indian Constitution’s Article 22 covers the rights of someone who has been arrested or detained in general. The rights of a person who has been arrested for a crime they have already committed are covered in the first two paragraphs. Other provisions cover the rights and methods for arresting and holding people in preventative detention. In order to protect against unlawful arrest and detention, Article 22 establishes the minimal procedural standards that must be contained in any statute passed by the legislature that results in the deprivation of a person’s personal liberty.
Object of The Preventive Detention:
Preventive detention’s goal is to stop the detainee from doing something that would be harmful to the state rather than to punish them. In this way, the satisfaction of the relevant authorities is a personal satisfaction. It falls under one of the justifications listed, such as
- Public Order,
2. State Security,
3. Foreign policy,
4. Community-essential services.
The District Collector and others v. Mariappan : It was decided that the purpose of detention and the detention legislation is to prevent the commission of specific offences rather than to punish.
Grounds For Preventive Detention:
Only four grounds can, however, be used to justify preventive detention.
The following are the justifications for preventive detention:
# State security,
#preservation of public order,
# Upkeep of supplies, defence, and key services,
# Indian security or foreign policy.
Only one or more of the aforementioned reasons may be used to hold someone without trial. A person held in preventative custody is not permitted to exercise any of their rights to personal liberty under Article 19 or Article 21.
Safeguards Provided In Constitution:
Certain protections are built into the constitution to stop the careless use of preventive detention.
# In the first instance, a person may only be placed in preventive custody for a period of three months. If the detention period is prolonged past three months, the matter must be presented to an advisory board made up of individuals who are eligible to be appointed as judges of High Courts. It is implied that only with the Advisory Board’s consent may the detention time be prolonged past three months.
#Second, the detainee has a right to be informed of the reasons for his incarceration. However, if it is in the public interest to withhold the reasons for detention, the state may do so. It goes without saying that the state’s grant of power gives the authorities room to behave arbitrarily.
# Thirdly, the authorities holding the detainee must provide them with the earliest opportunities to express their opposition to the incarceration.
The overuse of preventive detention is intended to be reduced by these measures. Preventive detention, which is essentially a denial of liberty, is allowed in the chapter on fundamental rights because of these protections. Foreign enemies are not eligible for these protections.
Preventive Detention in India : Constitutional Tyranny
India is one of the few nations in the world whose constitution permits preventative detention during times of peace without the restrictions that are generally considered to be necessary to preserve basic human rights. For instance, the European Court of Human Rights has long concluded that preventative detention, as it is envisioned in the Indian Constitution, is prohibited under the European Convention on Human Rights, despite whatever legislative protections that may be present. In its submission to the NCRWC in August 2000, the South Asia Human Rights Documentation Centre (SAHRDC) advocated for the deletion of those clauses in the Indian Constitution that expressly authorise preventative detention.
In particular, Article 22 permits preventative detention in all circumstances, including times of peace and non-emergencies. Detainees are specifically denied the right to legal counsel, cross-examination, timely or periodic review, access to the courts, or compensation for unjustified arrest or detention under the terms of the Constitution, which permits incarceration without accusation or trial for a maximum of three months.
In short, Article 22’s prohibition on preventive detention is a terrible blow to individual liberty. Additionally, it violates international norms. Article 4 of the International Covenant on Civil and Political Rights (ICCPR), which India has accepted, admits that certain personal liberties may not always be guaranteed in times of emergency. However, the Government has not used this privilege and is unable to do so because India’s existing state does not meet the criteria outlined in Article 4.
If preventive detention is to remain a part of India’s Constitution, it is essential that its application be restricted to certain, limited situations and come with sufficient protections to preserve the detainees’ fundamental rights. There is an urgent need for specific procedural safeguards
- to lessen detainees’ susceptibility to torture and oppressive treatment;
- stop authorities from abusing preventative detention to punish disagreement with the government or with majority practises; and
- to stop overly aggressive government prosecutors from tampering with the legal system.
In order to achieve these objectives, SAHRDC recommended the following in their report to the NCRWC. First, Entry 3 of List III of the Indian Constitution should be repealed. This entry permits state and federal governments to enact preventive detention legislation during times of peace for “maintaining public order or maintaining supply and services necessary to the community.” Even if preventive detention were to be deemed appropriate for reasons of national security as stated in Entry 9 of List I of the Constitution, there would still be no compelling justification to permit this extraordinary action under the conditions stated in Entry 3 of List III.
Second, in the absence of explicit direction from the Constitution, courts have applied imprecise and impotent rules to control the application of preventive detention statutes, such as the subjective “satisfaction” of the detaining authority test. If preventive detention is to remain in the Constitution, constitutional provisions must include clear guidelines that outline the specific instances in which such powers may be used. These guidelines must also be created in a way that allows for effective judicial review of the official’s decisions.
Third, pursuant to Article 22(2), any individual detained must be brought before a magistrate within 24 hours of detention. However, Clause (2) does not apply to people held in preventive detention under Article 22 (3) (b), hence it should be repealed in the interest of human rights. Currently, those held in custody under laws governing preventative detention may be held without any type of review for up to three months. This is an intolerably long time to be held in jail, especially considering the genuine risk of torture.
At the very least, the Government needs to implement Section 3 of the Forty-fourth Amendment Act, 1978, which would limit the amount of time that can be held without charge to two months. This action would at least greatly lower the incidence of torture, even if it would still be against international human rights legislation.
Fourth, the Constitution’s Advisory Board review process included an executive review of executive decision-making. Detainees’ right to appear before a “independent and impartial tribunal” is violated by the absence of judicial intervention, directly in violation of international human rights legislation, notably the ICCPR (Article 14 (1) and the Universal Declaration of Human Rights) (Article 10). It is necessary to alter the Constitution to set forth precise guidelines for officials to adhere to and to subject compliance with those guidelines to judicial review.
Fifth, the Constitution stipulates that when detention is expected to last longer than three months, the detaining authority shall consult the Advisory Board. There is no provision for the Advisory Board to review a detainee’s case more than once. However, periodic review is a crucial safeguard to guarantee that detention is strictly necessary and fairly applied. Therefore, the constitution need to require regular reviews of the terms and conditions of incarceration.
Sixth, detainees must be promptly and thoroughly informed about the reasons for their arrest. Currently, the only thing the detaining authority is required to do is tell the detainee the reason(s) for their incarceration “as soon as may be” following the arrest. According to paragraph 2 of Article 9 of the ICCPR, “anyone who is arrested shall be told, at the time of his arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.” Detainees must be granted a minimum amount of time during which the reasons for their imprisonment are quickly disclosed to them and they are given information adequate for them to challenge the legitimacy of their incarceration.
The right to legal representation and other fundamental procedural rights guaranteed by Articles 21 and 22 (1) and 22 (2) of the Constitution must be supplied to people who are being kept in preventative custody, according to rule seven. For instance, Article 22 (1) of the Constitution ensures the right to legal advice, while Article 22 (3) (b) denies this right to those who are imprisoned or arrested in accordance with a statute governing preventative detention.
Eighth, unless in cases of public emergencies, Article 9(5) of the ICCPR guarantees the right to compensation for unlawful detention. Although the Prevention of Terrorism Bill of 2000 is essentially a reconstitution of the Terrorist and Disruptive Activities Prevention Act, it does have a comparable provision granting a claim to compensation in section 38. (TADA). The Law Commission, which was tasked with reforming the anti-terrorism laws, noted Supreme Court rulings that effectively override India’s reservation to Article 9 (5) of the ICCPR by holding that individuals are legally entitled to compensation. In light of this, the Government of India should immediately revoke its objection to Article 9(5) of the ICCPR and include a clause guaranteeing the right to compensation in the Constitution.
It is crucial that the aforementioned constitutional revisions are implemented since they are in line with the fundamental principles of the Constitution and the minimal requirements of international human rights legislation. The NCRWC’s establishment launched a process that offers a one-of-a-kind opportunity for such a significant realignment of the Indian Constitution with prevailing global human rights standards. Political determination and a dedication to seeing justice done will be crucial.
Constitutional Validity Of Preventive Detention Law:
In Ahmed Noor Mohamad Bhatti V. State of Gujarat, AIR 2005, a three-judge Supreme Court panel ruled that a provision could not be deemed to be unreasonable or arbitrary and therefore unconstitutional merely because the Police official might abuse his or her authority. The court upheld the legality of the Police’s ability to arrest and detain someone without a warrant under section 151 of the Criminal Procedure Code 1973.
The preventative detention act is a crucial instrument in the hands of the executive, allowing them to detain anyone about whom there is a reasonable suspicion that he may commit a crime or whose actions may be detrimental to the state’s law and order, and the police may detain them without a warrant.
The State of Madras v. A.K. Gopalan
The preventive Detention Act of 1950, with the exception of section 14, did not violate any of the Constitution’s Articles. However, because section 14 could be separated from the other sections of the Act and was therefore not a part of the Act as a whole, the petitioner’s detention was not unlawful even though it violated the provisions of Article 22 of the Constitution and was therefore ultra vires.
This clause has consistently run counter to international human rights norms and has never been in alignment with any of them. The fact that preventative detention is such a broad clause and makes no mention of restrictions or requirements opens it to a greater range of interpretation, giving authorities significant flexibility. In order to prevent its unjust and unconstitutional use in any circumstance, this provision of our constitution necessitates an effective and thorough investigation of the underlying causes and the formulation of the relevant legislation.
Constitutional Law Of India- Dr. J.N. Pandey
Introduction to the Constitution Of India- Durga Das Basu
Constitution Of India- V.N. Shukla
Protection against Arrest and Detention-Article 22(1)(2), Unit-IV(A) – by Akhlaqul Azam
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