By Jasir Aftab
In the contemporary liberal-democratic era, where the right to personal liberty is near-universally recognised as of utmost importance and courts around the world readily interfere in cases concerning its infringement, preventive detention laws need to be examined with skepticism. They are a tool for detaining individuals and curtailing their right to liberty, not because by reason of being convicted or under-trial for an offence, but for the sole reason of an apprehension of them committing an act prejudicial to law and order.
The governing theory behind such laws is retroactive prevention, as opposed to the post-facto punitive nature of laws that provide for punishment after the incident of conviction for an offence. The relevance and need for such laws have always been debatable, with one side viewing them as a necessary evil in modern society, and the other labelling them as a tool of executive tyranny meant solely for securing the interests of certain vote-banks.
In the pre-independence era, the British government enacted several laws providing for preventive detention, such as the Defence of the Realm Act, 1914 and the Emergency Powers (Defence) Act, 1939 in the backdrop of the two World Wars. But these were legislations introduced during times of emergency and external threat, and hence were allowed to expire when no such situation existed.
Later on, these emergency legislations were replaced by regular legislation, such as the Anarchical and Revolutionary Crimes Act, 1919 (better known as the ‘Rowlatt Act’) and the Bengal Criminal Law Amendment Act, 1930, both of which were notoriously unpopular.
Shortly after gaining independence, India got its first preventive detention law, the Preventive Detention Act, 1950 (PDA). PDA was initially effective for one year, but was allowed to continue till 1969. Its validity was upheld by the Supreme Court in the famous case of A.K Gopalan v. State of Madaras, AIR 1950 SC 27, which is well known among jurists as India’s first fundamental rights case.
Since then, India has periodically enacted various such laws. One of the most prominent among them is the Maintenance of Internal Security Act, 1971 (MISA). MISA is infamous for its use during the Emergency period in the 1970s to arrest opposition party leaders. MISA remained effective till 1978.
Two years later, the National Security Act, 1980 (NSA) was enacted which continues to be effective to date. Therefore, barring the two short periods of 1970-71 and 1978-80, India has always at least one preventive detention law in place. The principle of preventive detention, in other words, has been permanently embedded into the Indian legal system.
It is a matter of irony that the makers of our Constitution, who themselves were once victims of the tyranny of preventive detention laws, still chose to grant powers to governments under the Constitution to enact such laws.
Due to the grant of explicit powers to the Parliament and state legislatures to enact preventive detention laws, the duty to protect personal liberty against any arbitrary use of such powers had always been on the shoulders of the judiciary. As the custodian of the fundamental rights of citizens, the judiciary has interpreted the provisions of the Constitution as well as the laws of the time in a strict manner so that no fundamental right of an individual is jeopardised by the political will of the State.
The Supreme Court has held that detainees must be informed of the grounds for their detention expediently without any unnecessary delay. It has been active to take upon any lax attitude of State machinery in this regard, and have quashed orders of detention if there was an unexplainable delay in supplying grounds forming the basis of subjective satisfaction of the detaining authority in passing the order of preventive detention, as it did in the cases of PritamNathHoon v. Union of India, AIR 1981 SC 9 and MangalbhaiMotiram v. State of Maharashtra, (1980) 4 SCC 470.
Preventive detention laws are designed to be highly administratively steered and restrict the scope of judicial interference. This, at times, places unfettered and largely unchecked power in the hands of the executive without any liability, allowing the potential of grave misuse of such powers. The delay it usually takes to apply for, let alone get judicial relief, works to the advantage of the executive. Even in cases where such laws are found to have been misused, the ultimate purpose of keeping the person behind bars for a long period is ultimately served.
The right to legal consultation and representation should not only be seen through a constitutional or statutory prism but rather as a right that flows from the right to enjoy personal liberty, which is a basic human right. In the complicated world of law, it is impossible for a layperson unacquainted with legal knowledge and no prior experience of such a situation to understand the reasons for which he is being kept in detention. It is entirely unreasonable to expect such a person to put up a competent defence before an advisory panel consisting of lawyers or retired judges.
Additionally, the eligibility criteria set by the Constitution for the members of the advisory board under Article 22 gives the State the power to choose to make it a purely executive committee; such a committee cannot be regarded as impartial or free from political influence. In fact, in most cases, these advisory panels extend the detention period as a matter of routine while in the same cases, High courts have gone on to quash the detention orders.
The excruciatingly long time taken by our legal system to dispose of such proceedings, combined with the non-availability of any redressal mechanism other than the filing of writ petitions for quashing of preventive detention orders ensures the continuous victimisation of the detainee. Thus, the ultimate purpose of political or personal victimisation of the detainee is served.
The continued application of such a world is an affront to the cherished ideals of personal liberty and freedom of expression. These laws give wide power to the government to curb the freedom of citizens without reasonable restrictions. Any law which provides for such powers should not have a place in a modern democratic society that India must aspire to be.
Even if the idea of these laws being necessary for the prevention of any crime is to be accepted, there need to be more safeguards available to the detainee. Those safeguards must not be just theoretical but should act as effective barriers against any misuse.
The detainee should not be denied the right to consult and be represented by a lawyer of his choice at any stage to ensure that the defence of the detainee is effectively put before the advisory board to aid it in making an informed decision.
The advisory board should be of a judicial nature with only sitting judges of High Courts eligible to be its members. This would ensure the application of a judicial mind while deciding the validity of detention orders, as well as the speedy disposal of such cases.
Also, the detention order should be made effective only after approval by such advisory boards within a prescribed time frame so that the detainee is not forced to be in detention for too long just by executive order.
These changes are necessary in the present time to make these laws compatible with our Constitutional ethos, and it is the responsibility of Parliament to ensure that necessary amendments are made to the laws in order to protect the liberty of the citizens in a free society. We cannot continue to rely on the judiciary to provide piece-meal relief to the increasing number of detainees being harassed under these laws. (IPA Service)
Courtesy: The Leaflet
