Preventive detention

Preventive detention

Preventive detention means to detain a person so that to prevent that person from commenting on any possible crime or in other words preventive detention is an action taken by the administration on the grounds of the suspicion that some wrong actions may be done by the person concerned which will be prejudicial to the state.

Preventive detention’ is also referred to as ‘administrative detention’, since this detention is directed by the executive and the decision-making authority lies exclusively upon the administrative or managerial authority. The detention may be in anywhere. It sometimes happen in one’s home itself. such detention is known as home detention.

According to Durga Das Basu, “preventive detention is resorted to in such circumstances that the evidence in possession of the authority, is not sufficient to make a charge or to secure the conviction of the detenu by legal proofs but 8 may still be sufficient to justify his detention on the suspicion that he [or she] would commit a wrongful act unless he [or she] is detained.”

Such a detention is not a punitive but a preventive measure. The interception is based merely on suspicion so as to avoid any harm at a later stage. This concept was laid down by Lord Finley in R v. Haliday [1917 AC 260, 269].

Official definition

There is no authoritative definition of the term “preventive detention” in Indian statutes.

Britanica

Preventive detention is understood as the practice of incarcerating accused individuals before trial on the assumption that their release would not be in the best interest of society—specifically, that they would be likely to commit additional crimes if they were released. Preventive detention is also used when the release of the accused is felt to be detrimental to the state’s ability to carry out its investigation. In some countries the practice has been attacked as a denial of certain fundamental rights of the accused.

Preventive Detention as defined in Official Documents:

Official Reports

Recommendations of National Human Rights Commission on Detention

The document provides a basic understanding of what is meant by preventive detention. It states that “ Preventive detention is aimed at preventing the possibility of an activity by a person which may be detrimental to public order or national security.” It also advised that preventive detention should be used only in rare cases where needed. It also stressed on the need to “keep a balance between human rights of liberty on one hand and security of the nation or maintenance of public order”.

International Experiences

International Covenant on Civil and Political Rights

It provides for the protection of one’s liberty against arbitrary detention. Article 9 (1) reads as follows:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

Universal Declaration of Human Rights

It guarantees the protection of all individuals against arbitrary detention. Article 9 reads:

No one shall be subjected to arbitrary arrest, detention or exile.

United Nations General assembly resolution 43/173

Body of principles for the protection of all persons under any forms of detention or imprisonment is a General assembly resolution 43/173 adopted on 9th December 1988. There are 39 principles under this resolution. Principle 1 states that “ All persons under imprisonment or detention shall be treated in human manner and with respect for the inherent dignity of the human person.

European Convention on Human Rights (ECHR):

It ensures one’s right of liberty which cannot be encroached upon otherwise in accordance with procedure established by law. Article 5(1) of the ECHR reads:

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

Preventive Detention as defined in case laws

The Supreme Court of India has in many of its cases constantly tried to ensure a balance between one’s liberty and the need for preventive detention.

In Naresh Kumar Goyal v. Union of India, it was held that that the object of preventive detention is to prevent the antisocial and subversive elements from imperiling the welfare of the country or the security of the nation or from disturbing the public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances, etc. Preventive detention is devised to afford protection to society.”

Moreover, in State of Maharashtra v. Bhaurao Punjabrao Gawande, the court emphasized that “in considering and interpreting preventive detention laws, courts ought to show greatest concern and solitude in upholding and safeguarding the fundamental right of liberty of citizens” without forgetting the necessity of inclusion of preventive detention under the Constitution.

Legal Provisions related to Preventive Detention:

The Conservation Of Foreign Exchange And Prevention Of Smuggling Activities Act, 1974 :

It provides for empowering the Government to make an order for detaining a person to prevent him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from—

"(i) smuggling goods, or

(ii) abetting the smuggling of goods, or

(iii) engaging in transporting or concealing or keeping smuggled goods, or

(iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or

(v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods."

National Security Act, 1980

Section 3 of the Act provides:

(1) The Central Government or the State Government may,—

(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India, or

(b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India

(2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of Public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.

The Prevention Of Blackmarketing And Maintenance Of Supplies Of Essential Commodities Act, 1980

It provides the Central Government and the State Government or any such appropriate officer the power to order for detention of a person to prevent him “from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community”.

“Explanation.—For the purposes of this sub-section, the expression “acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community” means— (a) committing or instigating any person to commit any offence punishable under the Essential Commodities Act, 1955 (10 of 1955), or under any other law for the time being in force relating to the control of the production, supply or distribution of, or trade and commerce in, any commodity essential to the community; or

(b) dealing in any commodity—

(i) which is an essential commodity as defined in the Essential Commodities Act, 1955 (10 of 1955), or

(ii) with respect to which provisions have been made in any such other law as is referred to in clause (a),

with a view to making gain in any manner which may directly or indirectly defeat or tend to defeat the provisions of that Act or other law aforesaid.”

Regional Variations related to Preventive Detention

Many states have come up with their own legislations providing for preventive detention. While the overall framework stays the same in all such statutes, there are some minor variations.

Some states like Andhra Pradesh, Maharashtra, Jammu and Kashmir, Rajasthan, Tamil Nadu, West Bengal and Odisha have included an explanation as to what would come under “acting in any manner prejudicial to maintenance of public order”. This is important so as to ensure that detention orders are not arbitrary. Similarly, Himachal Pradesh also provides an explanation as to what would come under "acting in any manner prejudicial to the preservation of the forests in the State and maintenance of forest-based supplies of commodities essential to the community and matters connected therewith".

Moreover, some states like Andhra Pradesh, Bihar, Jharkhand, Karnataka, Maharashtra, Tamil Nadu and Odisha have specified a limited time period for which a person can be detained at the first instance before the detention is reported to the respective government. Maharashtra has the highest time limit, i.e. 6 months. However, in other states there is no specified time and it is only stated that the authorities should “forthwith'' report the detention to the government. In most of the states, the maximum period of detention is for twelve months. However, in Kerala, Maharashtra and Rajasthan the maximum period of detention is six months instead of one year.

While in some states like Karnataka, Maharashtra, Tamil Nadu, Telangana, West Bengal and Andhra Pradesh provide a strict time limit of five days to disclose the grounds of detention to the detainee, in most of the other states it can be extended to ten days in exceptional circumstances. Rajasthan has the shortest time limit i.e. three days to inform the grounds of detention to the detainee. In all of the states the detention is to be referred to the Advisory Board within three weeks and the Advisory Board has to submit its report within 7 weeks. However, in West Bengal the detention can be referred to the Advisory Board within thirty days and the report of the same needs to be submitted within 10 weeks.

International Variations:

Australia:

Preventive Detention Orders in Australia’ (2015) 38 (2) UNSW Law J 10 They allow the Australian Federal Police to hold a person for up to 48 hours without arrest or prosecution. Contact with the outside world, especially family members, is highly prohibited while in incarceration. Each state and territory have passed laws increasing the maximum period of imprisonment under the PDO system to 14 days. PDOs are unique among Australia's several anti-terrorism measures.

Bangladesh:

Originally the Constitution of Bangladesh, in Article 32 that states “No person shall be deprived of life or personal liberty save in accordance with law”, didn’t provide for any reference to preventive detention. Later, Article 33 was amended to include clauses that enabled the Parliament to pass laws concerning preventive detention. The maximum period of detention is prescribed as six months unless the Advisory Board has reported that there is sufficient cause for detention. There is no time limit for disclosing the grounds of detention to the detainee and the authority also has a discretion not to disclose some facts. The Constitution doesn’t prescribe any power to the Parliament to legislate on a maximum period of detention in certain laws. Hence, under the Special Powers Act, there is no maximum period of detention prescribed. Instead, the Advisory Board needs to review the detention every six months.

Pakistan:

The Constitution of Pakistan mentions preventive detention under Article 10(4). The maximum period of detention at first instance is three months unless reviewed by the Advisory Board. There is no maximum limit to detention period. The only requirement is that the Advisory Board needs to review the detention every three months. There are two major laws on preventive detention which are Protection of Pakistan Act 2014 and Anti Terrorism Act 1997. Both of them, along with containing provisions for preventive detention in normal times, also contain special provisions where the government can call the Armed forces in aid of civil power at the time of emergency to detain any enemy alien aur militant after such notification.

United States

In Terry v. Ohio, 392 U.S. 1 (1968) the United States supreme court held that police may temporarily detain an individual if there is reasonable suspicion that the individual is armed, or engaged in, or about to be engaged in criminal conduct and this action of the police will not be violative of the 4th amendment of the US constitution. In some other cases, majorly in US v. Salerno, the courts laid down guidelines for preventive detention to be legal. The US court also allows the states to detain people to ensure safety during periods of insurrection. Although the statutes do not expressly provide for preventive detention they provide the government with powers to detain people to prevent future mishaps. For instance, in the Authorization for Use of Military Force (AUMF) Act, the government is provided the power to detain persons associated with terrorist organizations so as to prevent future acts of terrorism against the US.

Official Database

National Crime Records Bureau

Crime in India Year Wise Report 2022:

Crime in India – 2022 deals with the crime data with respect to the time period of 1 January 2022 to 31 December 2022. It also contains data regarding the number of persons detained under the laws related to preventive detention like National Security Act, The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, Goonda Acts (State and Central), etc.

Preventive Detentions (Crime Head-wise) - 2022

Prison Statistics India 2022

It is a compilation of data regarding prisons and the prisoners so as to provide guidance for maintaining a suitable criminal justice system.

It also collated data on the number of Indian and Foreign inmates (by age group) who are detained under different categories. One of these categories is under “Detenues” which includes inmates detained under preventive detention laws.

Prison Statistics India 2022

Research that engages with Detention

Scoping Study on Preventive Detention Laws in India by Neha Singhal, Thakur Foundation

There are a total 25 PD laws in India consisting of central and state legislations.  The first such legislation was the Preventive Detention Act, of 1950. After this, it was a parade of such legislation. All central Preventive detention laws are enacted after the ordinance. States also took this method to enact these laws. 12 out of 17 states chose to promulgate ordinances before the enactment of laws in the House of Representatives. This repeated reliance on ordinances to enact PD measures can best be described as creating legislation by cheating democracy.

Even though those legislations allow the detention of individuals to prevent acts threatening national security or public order, no law defines the range of acts considered threatening to national security. Preventive Detention legislations allow detention of individuals for a wide range of offences, from broad-based offences like acts threatening national security, public order, maintenance of supplies and services essential to the community to specific offences like bootlegging, land grabbing, gambling etc. Though these laws were meant to be enacted as exigency measures, they have historically been used by the police to control everyday crime. As early as 1965, PD was criticized for being used as substitution of ordinary law. It was being used against criminals against whom conviction was difficult to obtain in regular criminal courts.

Preventive Detention, Habeas Corpus And Delay At The Apex Court: An Empirical Study, by Shrutanjaya  Bhardwaraj, NUJS Law Review

This is an empirical research by the help of legal search engine SCC online and Supreme court official website https://sci.gov.in/ . A boolean search with the query “habeas corpus” was run on SCC Online. A time filter of 2000-2019 was placed. All 286 Supreme Court judgments that appeared in the search results were read. Of the judgments that appeared in search results, sixty-five pertained to preventive detention

The findings can be summed up under three heads.

First, the total time spent from the date of detention order or actual detention till the date of final disposal by the Supreme Court is 953 days on an average and 478 days by median value (based on a study of 63 cases). In 63.49 percent of the cases studied, the total time taken exceeded the maximum period of detention under the relevant law (six months or one year, as the case may be).

Second, out of the said total time, the time spent by the detenu in agitating the matter at the Supreme Court level alone is 528 days on an average and 197 days by median value (based on a study of sixtythree cases). In 36.51 percent of the cases studied, the number of days spent at the Supreme Court level alone exceeded the maximum period of detention under the relevant law (six months or one year, as the case may be). If we reduce the sample and consider only those twenty cases where the Supreme Court was the first Court to grant relief, i.e. only the ‘successful’ cases at the Supreme Court, the time spent in agitating the matter at the Supreme Court level alone is 159 days by a detenu on an average, and 119 days as a median value.

Third, on an average, a detenu spent 344 days (over eleven months) in custody before the case was finally decided by the Supreme Court, of which 111 days (almost four months) lapsed while the matter was pending with the Supreme Court (based on a study of fifty-nine cases). If we reduce the sample size and consider only the ‘successful’ cases at the Supreme Court, then on an average, a detenu spent 278 days (over nine months) in illegal detention, of which ninety-five days (a little over three months) lapsed while the matter was pending at the Supreme Court

This delay is unjustifiable because habeas corpus petitions can be decided summarily, i.e. within a period of two weeks from the date of filing. Further still, the filing of a counter-affidavit by the State serves no real purpose in a preventive detention proceeding. Hence, on the very first day (admission hearing), the Court should apply its mind to the facts disclosed in the petition and, if it finds the detention to be illegal, direct the detenu to be released under an ex parte writ of habeas corpus. The time wasted in filing and exchanging pleadings as well as through adjournments should be minimised. Finally, where the Court finds the detention to be illegal, it should consider invoking the concept of constitutional torts and granting monetary compensation to detenus for illegal deprivation of liberty. If the only remedy against illegal preventive detention is a token declaration of illegality after the detention has already or almost finished its course, there is little meaning in calling it a ‘remedy’. It is too little and too late.

New Study Reveals How The National Security Act Denies Justice & Fairness To Detenus In Uttar Pradesh, by Taha Bin Tasneem, Afif Khan, Kaif Siddiqui, Article 14

This study provides findings of an empirical study of 101 cases filed under National Security Act in the Allahabad High Court that was conducted using data over a nine-year period, between 2010 to 2019. It stated that those who were wrongfully detained under India’s preventive detention law, the NSA, 1980, spent 306 days in jail before their cases were quashed after which they were set free by the Allahabad High Court. Generally, before their petitions were ultimately resolved, detainees—whether innocent or not—spent roughly 76% of the maximum time allowed for their detention under the National Security Act (NSA) 1980, India's restrictive preventive detention law.

There was also a huge time gap between the detention order and the decision of Allahabad High Court. On average, the decision was given after 276 days. Moreover, on average the Allahabad High Court gave a decision after 170 days from the day the habeas corpus petitions are filed. Generally, a detenu spent 314 days in detention before either the decision of the High Court or the lapse of the maximum possible period for detention. In 18% of all cases, the time spent by the detenu in actual detention was greater than a year, which is the maximum time period of detention allowed under the NSA.

Among the 73 successful cases studied, on average the Court gave its decision after 268 days from the date of detention order. Detenus spent a major part of their maximum detention period in jail, whether guilty or not. There were even times when the arrest of a detenu and the passing of a detention order didn’t fall on the same date.

In the 177th Report of Law Commission issued in 2001, it was noted that in Uttar Pradesh, 73,634 arrests were made for substantive offenses while 479, 404 preventive arrests were made for a criminal act on suspicion.

Empirical study: Delay at the Madras High Court in Preventive Detention cases

https://www.thakur-foundation.org/upload/judgements/1665571389_Shrutanjaya%20Bhardwaj,%20Empirical%20Study%20Delay%20at%20the%20Madras%20High%20Court%20in%20Preventive%20Detention%20Cases.pdf

Challenges

1. Prolonged period of detention beyond the maximum period.
2. Frequent and wide-spread use of preventive detention laws.
3. Dangers to Right to Liberty.
4. Ineffective results of resort to Court under Habeas Corpus.