The Supreme Court of India recently underscored the necessity of strict adherence to constitutional and statutory safeguards in cases of preventive detention, pointing out that such a “draconian measure” cannot override fundamental rights without strict adherence to procedural protections.
Background
- Preventive Detention of a Couple in Nagaland: Ashraf Hussain Choudhary and Adaliu Chawang were detained under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act) by the Nagaland government.
- The detention orders, issued on May 30, 2024, followed the seizure of 239 grams of heroin from a vehicle in Khuzama village on April 5, 2024.
- The couple was arrested on April 12, 2024, based on statements from another accused.
- The issue of preventive detention has been a subject of intense debate, particularly in the context of Jammu and Kashmir following the abrogation of Article 370.
- Several political leaders, including former chief ministers Farooq Abdullah, Omar Abdullah and Mehbooba Mufti, were placed under preventive detention for months under the Public Safety Act.
Court’s Findings on Procedural Lapses in The Case Of Preventive Detention of a Couple in Nagaland
- Language Barrier: The detention orders were in English, which the detainees did not understand.
Constitutional Provision For Preventive Detention In India
- Integral Part of Constitution: Unlike any other democratic country, India has made preventive detention an integral part of its Constitution.
- Article 22 of the Indian Constitution: Grants protections to individuals who are arrested or detained.
- Constitutional Provisions on Preventive Detention
- Article 22(3)(b): Allows preventive detention to maintain public order and state security.
- Article 22(4): Limits detention to a maximum of 3 months, unless an advisory board finds sufficient cause for an extension.
- Advisory Board Composition: Must include persons who are or are qualified to be appointed as High Court judges.
- Extended Preventive Detention: Article 22(7): Empowers Parliament to:
- Specify circumstances and cases where detention can extend beyond three months without advisory board approval.
- Define the maximum detention period under preventive detention laws.
- Establish the procedure for advisory board reviews.
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- Authorities claimed the orders were orally explained in Nagamese, but the Supreme Court cited Harikisan vs State of Maharashtra (1962), ruling that oral communication alone is insufficient.
- Lack of Justification for Detention:
- At the time of detention, neither of the detainees applied for bail.
- The authorities had no basis to assume they would resume illicit activities if released.
- Mechanical Application of Law:
- The authorities failed to apply their mind and merely followed procedure without proper reasoning.
- Supreme Court’s Verdict: The SC quashed the detention orders, citing procedural violations.
About Preventive Detention
- Definition: Preventive detention refers to the detention of a person without trial or conviction by a court.
- It is based on reasonable suspicion that the person may engage in activities dangerous to disrupt public order.
- NCRB Data on Preventive Arrests (2021)
- Total Arrests in 2021: 1,48,20,298
- Arrests Under Preventive Detention (Section 151 CrPC / Now Section 170 BNSS): 89,00,174 (60.5% of total arrests)
- Law-Making Authority
- Both Parliament and State Legislatures have the power to enact laws on preventive detention.
- Parliament’s exclusive authority: Laws related to national security, defense, and foreign affairs.
- Concurrent authority (Parliament & State Legislatures): Laws for maintenance of state security and public order.
- Key Preventive Detention Laws
- National Security Act (NSA), 1980: Permits detention without trial for state security, public order, and other specified threats.
- Unlawful Activities (Prevention) Amendment Act (UAPA), 2019: Focuses on unlawful activities and terrorism, with provisions for preventive detention of individuals involved in such acts.
- The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA): Allows preventive detention to curb smuggling and foreign exchange violations.
- Public Safety Acts (PSA): This law allows authorities to take a person into custody to prevent actions that may threaten state security or disrupt public order.
Preventive Detention vs. Punitive Detention
| Aspect |
Preventive Detention |
Punitive Detention |
| Right to be Informed |
The detainee must be informed of the grounds for detention, but information deemed against public interest may be withheld. |
The detainee has the absolute right to be informed of the grounds for arrest. |
| Legal Representation |
The detainee should be given an opportunity to present their case against the detention order. |
The detainee has the right to consult and be defended by a legal practitioner. |
| Applicability of Safeguards |
Safeguards are available to both citizens and aliens. |
Safeguards are not available to enemy aliens. |
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Rules For Preventive Detention Established By The Supreme Court (Jaseela Shaji vs. Union of India, 2024)
- Fair and Effective Opportunity: The detaining authority must provide copies of all documents relied upon for detention.
- Failure to furnish these documents invalidates the detention order.
- Protection of Constitutional Rights: The Supreme Court reaffirmed that personal liberty is a fundamental constitutional right.
- If the detainee is not provided with all relevant documents to challenge the detention, it violates Article 22(5) of the Constitution.
- Prevention of Arbitrary Actions: Authorities must ensure non-arbitrary actions and respect detainees’ rights at all stages.
- Documents must be provided in a language the detainee understands.
- Avoiding Undue Delay: Authorities must ensure timely communication regarding detention.
- The use of available technology is encouraged to prevent unnecessary delays.
Key Supreme Court Judgments on Preventive Detention
- A.K. Gopalan vs. State of Madras (1950): The Supreme Court upheld the Preventive Detention Act, 1950. It ruled that Article 22 provides complete procedural safeguards for preventive detention.
- Khudiram Das vs. State of West Bengal (1975): The Supreme Court clarified that preventive detention is a preventive measure, not a form of punishment.
- Amed Noor Mohammad Bhatti vs. State of Gujarat (2005): The court held that the preventive detention law empowers the executive to arrest individuals based on reasonable suspicion of engaging in activities prejudicial to law and order. Such arrests do not require a warrant.
- Justice K.S. Puttaswamy v. Union of India (2017) – Right to Privacy Case: The Court emphasised that detention laws must conform to principles of reasonableness and proportionality.
- Shaikh Nazneen vs. State of Telangana (2022): The Supreme Court ruled that preventive detention cannot be used for ordinary law and order issues.It is an exceptional power that affects personal liberty and must be used sparingly.
- Jaseela Shaji v. The Union of India, 2024: The Supreme Court’s judgment reaffirmed the sanctity of procedural safeguards under Article 22 (5) of the Constitution of India in preventive detention cases.
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Concerns Regarding Preventive Detention
- Judicial Limitations in Preventive Detention Cases: Courts can review whether procedural safeguards were followed but cannot question the necessity of detention.
- Human Rights Violation: Lacks procedural safeguards, increasing detainees’ vulnerability to torture, discrimination, and misuse by officials for subversive purposes.
- Prolonged detention without trial contradicts the principles of natural justice and human dignity.
- Arbitrary Use: Often enforced beyond judicial oversight, raising concerns about unchecked and discretionary detentions.
- Against Democratic Norms & International Covenants: Uncommon in other democracies and contradicts the International Covenant on Civil and Political Rights, which upholds personal liberties.
- Risk of Political Misuse: Potential to be exploited by governments to suppress dissent, silence opposition voices, and curb activism.
Way Forward
- Stringent Enforcement of Procedural Safeguards: Implement rigorous judicial scrutiny, as emphasized by the Supreme Court, to prevent misuse of preventive detention laws.
- Time-Bound Reviews: Mandatory periodic reviews of detention cases should be implemented to prevent indefinite detention.
- Independent Advisory Boards: Advisory boards should have greater independence from the executive to ensure fairness.
- Example: Advisory boards are established as per the Telangana Prevention of Dangerous Activities Act, 1986, comprising qualified judges to ensure fair assessment of detentions.
- Balancing Security & Human Rights: Use preventive detention judiciously, maintaining a balance between national security and personal liberty.
- Ensuring Rights of Detainees: Mandate strict adherence to procedural safeguards, including informing detainees of the reasons for detention.
- Transparent Investigation & Compensation: Ensure fair investigations and provide adequate compensation in cases of wrongful detention.
Conclusion
Preventive detention, though crucial for national security, often challenges democratic principles and personal liberty. Reforms are needed to balance security with human rights, ensuring fairness and preventing misuse.
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