Preventive Detention: A Critical Analysis Of Current Scenario In India
Author: Yashpriya Sahran
Designation: Law Student, Lloyd Law College
Email ID: firstname.lastname@example.org
Preventive detention is a term that is explicitly used for certain purposes subject to certain safeguards that are expressly authorised by the Constitution of India. It is combatant to the right to personal liberty as it envisages detention without trial which is against the basic canons of criminal jurisprudence. These laws are not only confined to national security or the maintenance of public order but also extend to social and economic offences.
Earlier these measures were used very cautiously, only in grave situations affecting the very existence of the State. But, nowadays, these measures are used as a tool in the hands of the government to detain anyone and to take away the right to personal liberty of individuals which is evitable from the cases filed under the National Security Act, 1980 in the past few years. In this article, we will understand the basics of Preventive Detention Laws and their analysis in the current Indian scenario concerning recent case laws.
Preventive Detention: Introduction
Preventive detention means the detainment of a person to prohibit that person from committing further crimes and to nurture public order. In other words, preventive detention is an action taken by the administration on the grounds of the belief that some wrong actions may be committed by the individual concerned which will be prejudicial to the state. Preventive detention laws are used very cautiously in grave situations affecting the very existence of the state.
Preventive Detention Laws
The National Security Act of 1980 provides provisions for preventive detention in certain cases and related matters. This act empowers the Central and State Governments to detain an individual to prohibit him/her from acting in any manner prejudicial to the safety of India and to maintain public order. The Act empowers the government to detain a foreigner during a view to manage his presence or expel him from the country.
Some provisions of preventive detention as enshrined in Article 22(3) provides that the person arrested or detained under the preventive detention laws do not have the protection against arrest and detention as provided under Article 22(1) and 22(2) of the Indian Constitution.
To prohibit the careless use of preventive detention, certain safeguards are enshrined in the Constitution. Firstly, a person can be taken to preventive custody for 3 months only unless an Advisory Board consisting of qualified persons as prescribed in the constitution approves the extension of the period. The maximum period for which a person can be detained in pursuance of any detention order can be 12 months only from the date of detention. Secondly, the detainee has the right to know the grounds of his detention. Thirdly, the authorities shall afford the detainee the earliest opportunity of making a representation against the order. These safeguards are planned to play down the abuse of preventive detainment. It is since of these safeguards that preventive detainment, essentially a denial of liberty, finds a put on the chapter on fundamental rights. These safeguards are not accessible to enemy aliens.
Historical Perspective of Preventive Detention Laws:
At the times of World War, I and II, considering the concern of preventive detention, England enacted certain emergency acts like the Realm Act and the Emergency Powers (Defence) Act. These acts were significantly enacted for emergency purposes during war-time but also ceased to exist after the wars ended. Although the Defence Act had been replaced by peacetime preventive detention laws after World War I by the Rowlett Act (1919) and Bengal Criminal Law Amendment Ordinance.
Howsoever, during the pre-Independence period, the then British era government was allowed to detain any individual on bare suspicion under the provisions of Bengal State Prisoners Regulation, III of 1818.
The rules laid down within the Defence of India Act, 1939 permitted an individual to detain if he was satisfied that such detainment was essential to prohibit him from behaving in any manner detrimental to the nation’s security and defence.
The first Preventive Detention Act was enacted after independence in 1950. But this act was challenged on the grounds of validity in the case of AK Gopalan v. the State of Madras in the Supreme Court and the act was held constitutionally valid by the Supreme Court with the exceptions of some provisions. The Act was amended 7 times before getting expired in the year 1969 and each amendment was made to extend its validity for 3 more years and so was extended until December 31, 1969.
Starting from pre-independence till now there are several laws made about preventive detention and lots more to guard the society by constraining the power of any individual who is likely to cause harm.
Preventive Detention Laws in Current Scenario:
Nowadays, preventive detainment powers are used to curb the voice of dissent. In Uttar Pradesh, over 5558 persons were put under preventive detention to curb the voices raised against the Citizenship Amendment Act (CAA) for 17 days.
In the recent case of Nuzhat Perween v. State of UP and Anr., the Supreme Court requested the Allahabad High Court to expeditiously decide the habeas corpus petition filed by Nuzhat Praween for her son, Dr. Kafeel Khan. The petition questioned the orders for Dr. Khan’s preventive detention under the National Security Act of 1980 (NSA) that were passed on February 13, 2020. Initially filed before the Supreme Court in February itself, the petition was sent to the Allahabad High Court in March, where it had been heard multiple times before, finally, a Two Judges’ Bench passed a judgment on 01.09.2020 declaring the detention order illegal and directing Dr. Khan’s immediate release. The story of Dr. Khan and therefore the manner during which the preventive detention machinery was misused by the government to stay a dissident behind bars may be a tale as old as time itself. Small wonder why the writ of habeas corpus has such a celebrated position in societies. Indian courts never had the foremost shining of records in terms of processing habeas petitions over the past few years and thus the delay that it took for Dr. Khan’s petition to be heard speaks to this serious issue. And hence, a court did apply its mind and reinstate a person’s liberty.
Protecting the limited resources alongside preserving peace and order is important for a developing country. Along with this, prevention detention laws must not infringe any of the conditions or restrictions thereon power, such law can’t be stuck down on the specious ground that it is circulated to interfere with people’s freedoms.
 The National Security Act, 1980 (Act 65 of 1980), s. 3.  The Constitution of India, art. 22(4).  The National Security Act, 1980 (Act 65 of 1980), s. 13.  The Constitution of India, art. 22(5).  Ibid.  The Constitution of India, art. 22(3)(a).  Defence of the Realm Consolidation Act, 1914, available at: http://www.nationalarchives.gov.uk/pathways/firstworldwar/transcripts/first_world_war/defence_ofthe-realm.htm (last visited on November 28, 2020)  The Emergency Powers (Defence) Acts, 1939, available at: http://www.cylaw.org/KDP/data/1940_1_446.pdf (last visited on November 28, 2020)  A.K. Gopalan v. The State of Madras, 1950 AIR 27, 1950 SCR 88.  Omar Rashid, “Anti-CAA protests: 1,113 arrests, 5,558 preventive detentions. 19 dead in UP”, The Hindu, Dec. 26, 2019.  Nuzhat Perween v. State of UP and Anr., WP No. 264 of 2020