Introduction
Preventive detention is a law that was created to protect the state from terrorism and aggression. The law involves detaining a person to prevent him from commencing any crime, and such action is taken by the administration on the basis of suspicion.[1]Preventive detention as a law affects the two most important fundamental rights Article 21 right to Life and liberty. [2]and the rights available to arrested persons under article 22 of the constitution.[3] The law on preventive detention is a powerful tool in the hands of the executive and, if unchecked, can result in gross abuse and violations of rights. The law should be used based on constitutional safeguards and should not be used as a weapon of suppression by the government.
A.K. Gopalan case and Justice Ali’s Dissent
AK Gopalan was detained under preventive detention laws; he filled a writ of habeas corpus challenging this detention. The appellant also challenged the legality of the preventive detention act on the ground of its violation of articles 19, 21, 22.[4] The main issue before the court was regarding the validity of the law. The majority held that the law was constitutional and that right to Life could be taken away as long as the action was supported by law. The court held a narrow interpretation of the rights available under article 21[5]. However, only justice Fazal Ali gave the only dissenting judgment, which became important for several future case references. He said that fundamental rights could not be viewed in isolation and in water-tight components.[6] The fundamental rights should be read together, and the freedom and liberty of people should be given priority, and the phrase "procedure established by law" should include the substantive due process of law. [7].
Impact of the dissent in future cases
The dissent of justice Ali had a significant impact in future cases. The doctrine of mutual exclusivity was rejected by the supreme court in the bank nationalization case. [8], replacing objective test with effects test. The dissent was further used in the Maneka Gandhi case where the Supreme Court gave the verdict that the rights under Article 21 can only b taken away by "procedure established by law," and the procedure should be fair, reasonable, and non-arbitrary.[9] This led to the inclusion of non - arbitrariness in the due process of law under article 21.[10] The decision was further held in future cases. The dissent leads to the ingrain of a constitutional nexus between procedural laws and natural justice.[11]
Impact of Preventive Detention laws in Present times
Preventive detention laws have come a long way from the past. The primary purpose of the law was to ensure the security and sovereignty of the nation; however, now, it has been used as a tool to curb political opposition and dissent. A person arrested under preventive detention can be kept in custody for a period of 3 months without even stating the reasons for such detention only on the basis of mere suspicion. Such procedures give far-reaching power to the executive, which in the majority misuse such powers. Preventive detention is an infringement on the personal liberty of an individual and cannot be infringed in an easy-going manner. [12]. The increased frequency in which the law has been invoked requires the Indian law framework to create safeguards to ensure that their liberty is not restrained arbitrarily.[13] Expanding utilization of power to curb dissent requires a need to ensure proper procedure to be followed by the government before curbing the rights of an individual, and therefore the preventive detention laws need to be made more transparent and should undergo changes so that the rights of individuals are not curtailed unnecessarily.[14] The state should not arbitrarily resort to the use of preventive detention laws to deal with common law and order problems. It should only be used as a last resort, and it must fulfill the four corners of article 21 before being applied to every situation of apprehended danger that cannot call forward the charge of preventive detention.[15] The law should be interpreted narrowly; however, it is not the case as the government in recent past have blandly ignored such safeguards and have invoked the law at their will and fancies. The main reason for invoking has been to curb dissent and political opposition; this shows the misuse of the law as a government that is not able to tolerate dissent is not truly democratic, and this law is helping the government in its quest to curb dissent without any fear and consequences. There is a serious need to make changes in the law to prevent its misuse. The present preventive detention law is vaguely written as a proper definition is not given of what activities are considered to affect public order writers of news reports and media journals who are showing opposition are targeted and detained on frivolous grounds.[16] The lack of a proper definition of the term public order allows the government to misuse the law.[17] Such provisions and vague interpretations are problematic are required to be rectified as laws that allow the executive to curb dissent and weaken democratic beliefs and principles are not good laws and should be modified or repealed. Its high time that preventive detention laws are modified to prevent misuse and prevent executive overreach. The laws are administratively steered and provides less judicial interference giving unchecked power to the executive; the delay in applying for relief, let alone the time to get relief enables the executive to fulfill its objective to detain a person for a long period is ultimately served.[18] The right to legal consultation should be considered as a part of the right to liberty and a basic human right to ensure proper justice and for laypersons with no legal knowledge discovering the reasons for which they have been detained becomes difficult.[19] The law of preventive detention, although it was created for noble reasons, has now become a tool of oppression in the hands of the executive; therefore, the need of the hour is to modify the law and prevent its misuse by increasing constitutional safeguards.
Conclusion
[1] Preventive Detention Act. 3(1).
[2] Constitution of India. 21.
[3] Constitution of India. 22.
[4] Ak Gopalan Vs State of Madras [1950] SCR 88.
[5] Id
[6] Id
[7] Id
[8] R.C. Cooper Vs. Union of India [1970] SCR(3) 530.
[9] Maneka Gandhi Vs. Union of India [1978] SCR(2) 621.
[10] Khosla, M., 2012. The Indian
constitution.
[11] Francis Coralie Mullin v. Administrator,
Union Territory of Delhi and ors [1984] SC 802.
[12] Prem Narayan vs. Union of India [2019].
[13] Garg, R., 2020. Preventive
detention laws in India - iPleaders. [online] iPleaders. Available at:
<https://blog.ipleaders.in/preventive-detention-laws-india> [Accessed 6
October 2021].
[14] Id
[15] Rajagopal, K., 2021. Preventive
detention a necessary evil only to prevent public disorder: Supreme Court. [online]
The Hindu. Available at:
<https://www.thehindu.com/news/national/preventive-detention-a-necessary-evil-only-to-prevent-public-disorder-supreme-court/article35688565.ece>
[Accessed 6 October 2021].
[16] Sekhri, A., 2020. Why it is
critical to review preventive detention laws. [online] Hindustan Times.
Available at:
<https://www.hindustantimes.com/analysis/why-it-is-critical-to-review-preventive-detention-laws/story-OuN05iXpk3OZS9nrkSStUN.html>
[Accessed 6 October 2021].
[17] Id
[18] Aftab, J., 2021. Preventive
Detention Laws in India: A tool for executive tyranny?. [online] The
Leaflet. Available at:
<https://www.theleaflet.in/preventive-detention-laws-in-india-a-tool-for-executive-tyranny>
[Accessed 6 October 2021].
[19] Id
[20] Id
[21] Ahmed, I., 2020. Preventive Detention.
[online] Legalserviceindia.com. Available at:
<https://www.legalserviceindia.com/legal/article-751-preventive-detention.html>
[Accessed 6 October 2021].
About the Author: This post is prepared by Abhishek Saha, Law Student from West Bengal National University of Juridical Sciences. He can be reached at abhishek221066@nujs.edu
0 Comments