ANALYZING PREVENTIVE DETENTION IN LIGHT OF

CONSTITUTIONAL PROVISIONS

CONSTITUTIONAL LAW- I

Submitted by

Rahul Tambi

SM0119036

Faculty in charge

Mr. Himangshu Ranjan Nath

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM

GUWAHATI

20th MAY 2021

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 TABLE OF CONTENTS
Chapter One: Introduction...............................................................................................................3

Chapter Two: Preventive Detention in India...................................................................................5

Major Preventive Detention laws in India...................................................................................5

Express provision for Preventive Detention in constitution........................................................6

Definition of Preventive Detention by Supreme Court...........................................................7

Insufficient Procedural safeguards to Preventive Detention cases under article 22................8

Peculiar features of Preventive Detention in India......................................................................9

Chapter Three: Preventive Detention in Light of Personal Liberty...............................................11

Extent of judicial involvement in Preventive Detention............................................................11

Powers of Supreme Court under Article 32...........................................................................11

Applicability of test of non-arbitrariness...............................................................................13

Chapter Four: Preventive Detention and Human Rights...............................................................16

Conclusion.....................................................................................................................................18

Bibliography..................................................................................................................................19

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 CHAPTER ONE: INTRODUCTION

Overview:

Preventive Detention means detention of a person against whom there is a suspicion that he is
likely to commit an offence, so as to prevent him from committing that offence. Usually it is
resorted to when there is not enough evidence to press charges against a likely offender/detenu
but enough to detain him. It means a preventive measure resorted by the executive to intercept
the person and prevent the person before committing an offence under National Security,
Economic Interested Offences and Public Order laws.

Perhaps Preventive Detention can be best described in words of Lord Finlay “it is not a punitive
but a precautionary measure.1” The objective of such detention is to prevent an offence from
taking place, rather than punishing someone for a crime already committed. It is generally
resorted to while dealing with national security and public safety issues.

Preventive Detention can be found as a precautionary measure in a myriad of legislations in

various forms, time-periods and intensities. It seems like a necessary evil that is seemingly
unconstitutional but at the same time instrumental in preventing the interests of the constitution
itself. For instance, our very freedom fighters who were often detained with the help of
Preventive Detention legislations, passed the Madras Suppression of Disturbances Act (1948)
right after independence to suppress violent protests in post-independence Telangana.

Almost all democratic regimes have provisions for Preventive Detention in one form or the
other. That Preventive Detention is required to maintain peace and security is a well-established
fact as well as law. Therefore, the central question becomes to what extent can freedom of a
person be curtailed through Preventive Detention legislations under the scheme of Part III of the
constitution.

Preventive Detention has been a part of Indian law ever since 1800s when the British introduced
it. After Independence, the Preventive Detention laws of British were in operation till the Indian
constitution incorporated it in its body Article 22 read with the legislative entries 9 & 3 of Lists I
& III of the VII Schedule.

1
Rex V. Halliday [1917] UKHL 1.

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Research questions:

a) What is the extent to which judiciary can interfere with Preventive Detention orders?

b) What is the role of the Supreme Court on expanding ‘personal liberty’ under the Preventive
Detention law?

c) What are the safeguards against arbitrary use of Preventive Detention and their sufficiency?

Scope and objectives:

Objectives:

a) To examine the extent to which judiciary can interfere with Preventive Detention

b) To identify the role of the Supreme Court on expanding ‘personal liberty’ under the
Preventive Detention law

c) To evaluate the sufficiency of safeguards provided against Preventive Detention laws.

Scope:

The scope of the project is limited to the analysis of preventive detention in light of
constitutional provisions.

Literature Review:

1. M P JAIN, INDIAN CONSTITUTIONAL LAW (Lexis Nexis 2018)

M Plain Indian Constitutional Law is an authoritative, evergreen classic on Indian constitutional

law. This book, presently in its eighth edition, is a thematic presentation of the complex and
multi-dimensional subject of Constitutional law in a lucid, comprehensive and systematic
manner. The book contains in-depth insights that will benefit students, research scholars,
lawyers, judges, legal academics, policy makers and interested citizens who look for the latest in
constitutional jurisprudence. Thus, this book has proved very fruitful for the researcher in
conducting research for thus paper.

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 CHAPTER TWO: PREVENTIVE DETENTION IN INDIA

MAJOR PREVENTIVE DETENTION LAWS IN INDIA

1. Armed Forces (Special Powers) Act of 1958 This act was passed in 1958, to facilitate
Indian Armed Forces in tackling the insurgent situation in North-East India. Section 5 of
the Act does not specify a time period within which an arrested person should be handed
over to the police station but only requires them to do it with “the least possible delay.”
Supreme Court has interpreted least possible delay to be a time period of 24 hours,
however this is hardly followed. As a result, there have been circumstances wherein
detention of probable suspects has went on for months. As of now, similar law exists in
states of Assam, Nagaland, Mizoram, parts of Manipur and Arunachal Pradesh. There is a
similar legislation for Jammu and Kashmir.
2. Sections 107 and 151 of Criminal Procedure Code of 1973 Section 107 provides for
detention of a person who is likely to disturb peace or public order by order of magistrate.
Further, under section 151 of the code, police can arrest a person without warrant where
there is sufficient proof that such person is hatching plans to commit cognizable offence.
3. National Security Act of 1980 it gives central ad state government powers to detain a
person if detention of such person is necessary in order to maintain national security,
supply of essential commodities and relation with foreign countries. Under this a person
can be detained for maximum period of 12 months.
4. Unlawful Activities (Prevention) Act, 1967 It mostly deals with prevention of terrorist
activities. This act provides for maximum period of pre-charge detention to 180 days and
if after 90 days the public prosecutor can show that the investigation has progressed but
more time is needed. This act is being rampantly misused by often impleading Dalit
activists and academicians under this law.
5. Public Safety Act, 1978 the law was once passed in Jammu and Kashmir to prevent
smuggling of timber, however, now it is mostly used to detain suspected militants. After
the abrogation of Article 370 in August 2019, it was deployed in order to put political
leaders of Jammu and Kashmir under house arrest.
6. Conservation of Foreign Exchange and Prevention of Smuggling Activities Act
(COFEPOSA) is an Act of the Parliament passed in 1974 during administration of Indira

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 Gandhi, trying to retain foreign currency and prevent smuggling. The preamble of the act
itself declares that it is passed to “provide for Preventive Detention in certain cases for
the purposes of conservation and augmentation of foreign exchange and prevention of
smuggling activities and for matters connected therewith.”

EXPRESS PROVISION FOR PREVENTIVE DETENTION IN CONSTITUTION

Our Constitution, since its enactment, has had a peculiar feature; the
fundamental rights guaranteed under it allow Preventive Detention without trial.
Article 22 after providing that any person arrested must be produced before a court
within 24 hours of arrest renders this almost nugatory by permiting the state to
preventively detain persons without any judicial scrutiny.

While deliberating on provisions of Article 22 (then article 15A), Dr. B.R. Ambedkar defended
the sub-clauses enabling Preventive Detention legislations by contending that in the
circumstances prevailing (then) in the country, it may be necessary for the executive to detain a
person who tampers either with public order or with the Defense Services of the country and that
the exigency of the liberty of the individual should not be placed above the interests of the
State///

On examining these provisions of Article 22, we find that Clauses (1) and (2) give three very
valuable rights to detenus (other than those detained under the law of Preventive Detention),
namely:
i. Right of being informed, as soon as may be, of the grounds of arrest;
ii. Right to consult and be defended by a legal practitioner of his choice;
iii. Production before the nearest magistrate within 24 hours of such arrest.

Clause (3) of Article 22 however expressly take away the safeguards of clauses (1) and (2) of
Article 22 in respect of a person arrested or detained under a law providing for preventive
detention. In its place the detenu under preventive detention has the somewhat niggardly
substitute protection as provided by clauses (4) and (5) of Article 22. Collectively these clauses
provide that in case of preventive detention:

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i. The detenu shall not be detained beyond 3 months unless the Advisory Board (duly
constituted) reports prior to the expiration of 3 months that there is in its opinion sufficient cause
for such detention (as against production within 24 hours before a magistrate).

ii. The detenu is to be furnished, as soon as may be, the grounds for his detention.

iii. The detenu is to be provided the earliest opportunity of making a presentation against the
order of detention (as against the right of consulting and being defended by a legal practitioner).

Article 22 is applicable in peacetime, non-emergency situations or otherwise. The Constitution

expressly allows an individual to be detained - without charge or trial - for up to three months
and denies detainees the rights to legal representation, cross-examination, timely or periodic
review, access to the courts or compensation for unlawful arrest or detention. In short, Preventive
Detention as enshrined under Article 22 strikes a devastating blow to personal liberties.

Article 22 is to be read with entries 9 and 3 of Lists I & III of the VII Schedule. Entry 9 of lists I
allows union government to make laws relating to “Preventive Detention for reasons connected
with Defense, Foreign Affairs, or the security of India; persons subjected to such detention.”
Entry 3 of Concurrent list allows both the state and central government to make laws regarding
“Preventive Detention for reasons connected with the security of a State, the maintenance of
public order, or the maintenance of supplies and services essential to the community; persons
subjected to such detention.”

Definition of Preventive Detention by Supreme Court

The very first case to discuss Preventive Detention was A.K Gopalan v State of Madras 2 in
which Kania CJ quoted the words of quote the words of Lord Finlay in Rex v. Halliday 3, "it is
not a punitive but a precautionary measure." He further remarked that “the object is not to punish
a man for having done something but to intercept him before he does it and to prevent him from
doing it. No offence is proved, nor any charge formulated; and the justification of such detention
is suspicion or reasonable probability and not criminal conviction which will be warranted by
legal evidence”.

2
A.K Gopalan v State of Madras, AIR 1950 SC 27.
3
Rex v. Halliday, [1917] A.C. 260.

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The word ‘reasonable probability’ was further expanded into ‘reasonable prognosis’ by AN Ray,
CJ in the case of Haradhan Shaha v. State of West Bengal 4. Reasonable Prognosis is a medical
term, denoting "the future behaviour of a person based on his past conduct in the light of the
surrounding circumstances".

The Preventive Detention as contemplated in Art 22 is detention by the executive and not under a
court order. the authority to detain conferred on the executive is not delegation of legislative
authority or power but is only vesting a discretion on the executive to enforce the law on
Preventive Detention passed by the legislature

Insufficient Procedural safeguards to Preventive Detention cases under article 22

The first safeguard that is provided is by guaranteeing the right to representation by the detenu
against the order of his detention, and this right originates out of the right to be communicated of
the' grounds for detention as early as possible to enable the detenu to make representation at the
"earliest possible" opportunity as per clause 5 of Article 22. But the chief ingredients of this right
are representation by detenu's own counsel which is however denied by cl 3(b) of the Article
categorically stating that "Nothing in clauses 1 & 2 (namely the right to consult and be defended
by a legal practitioner of hi3 choice, and the right to be produced before a magistrate within a
period of 24 hours of arrest) shall apply to any person who is arrested or detained under any law
providing for Preventive Detention". Right to representation in cases of Preventive Detention is
not considered an absolute right and in case of in A. K. Roy v. Union of India 5concedes it to the
extent of preparation of detenu's representation and filing habeas corpus petition to court and also
personal hearing and assistance by a friend in proceedings of a serious import.

The second is that the detenu and his counsel is to be provided with relevant materials which led
the detaining authority to detain him. In case of Masood Ahmad Bhat v. State of J&K6, the court
held detention order under Preventive Detention Act was quashed as the detenu was not supplied
with the materials relied upon by the detaining authority thus impinging his right to
representation.

The third is the advisory board. According to Article 22(4) Preventive Detention can be
extended beyond three months only after scrutiny by advisory committee. This committee should
4
Haradhan Shaha v State of West Bengal, AIR 1974 SC 2154.
5
A. K. Roy v. Union of India ,1982 AIR 710.
6
Masood Ahmad Bhat v. State of J&K, 2019 SCC OnLine J&K 791.

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comprise of persons who are, or have been, or are qualified to be appointed as, Judges of a
High Court. The reference of the case of the detenu has to be made to the Advisory Board within
5 weeks of the date of detention and the hearing of the detenu by the Advisory Board has to be in
person. The board is required to submit a report within 11 weeks of detention and it is the
obligation of the Government to revoke the detention order if the advisory board reports that
there is in its opinion no sufficient cause for the detention of the person concerned.

However, the advisory board often works under the influence of executive, which raises
serious concerns about the efficacy of this safeguard. For example, an RTI revealed advisory
board under Jammu and Kashmir Public Safety Act spent 75% of its budget upholding detention
orders which J&K high court quashed later on 7. Also, the Parliament under 22(7)(a) has the
power to pass laws which might do away with requirement of advisory committee.

PECULIAR FEATURES OF PREVENTIVE DETENTION IN INDIA

Many officers at many levels can pass Preventive Detention orders

In US only the Congress is empowered to enact laws for Preventive Detention and that also only
for prosecution of war, suppression of insurrection and repulsion of invasion, in India both
Parliament and state legislatures can enact laws for Preventive Detention not only during war but
also in peace and for reasons connected with as many as six subjects as stated above. In UK also
only Parliament can pass laws for Preventive Detention. In UK again no person other than the
Home Secretary has the authority to Issue order of detention but in India a host of officers like
the District Magistrate, the Additional District Magistrate of the various districts and the
Commissioners of Police are empowered to issue order of detention, and even their affidavits
may he filed by lesser officers on their behalf under Rules of Business except however when the
allegation is one of malafide. The detaining authority in India may thus avoid further
involvement after issue of detention order in this regard ana that makes him irresponsible with
regard to personal liberty of the citizens.

Preventive Detention orders are not questioned in parliament

In UK the Home Secretary who is the authority to issue orders of detention has to make monthly
reports to the Parliament with regard to Preventive Detention when in use. The USA is also a

7
HUMAN RIGHTS INITIATIVE, https://www.humanrightsinitiative.org (last visited 5 May 20, 2021).

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vast country but no person can be preventively detained after 1971 without the special
authorization by the Congress. In India on the contrary both Parliament and State legislature may
pass laws on Preventive Detention and what is more the Supreme court has upheld wide
discretionary powers on the high standing of the executive authority in various decisions

Role of advisory committee

In UK again, the appointment of the Advisory Committee to which the detenu makes
representation cannot be withheld, and the Home Secretary during his monthly report to the
Parliament has not only to state the number of detention orders issued but also how many of
them were issued without clearance by the Advisory Committee. In India however no'Advisory
Committee is required for detention for three (now amended to two) months or less, and it can be
withheld in other cases of detention of longer _ periods under clause 7 of Art 22. The detaining
authority in India has also no direct accountability to the Parliament or the state legislature in this
regard.

Reason of arrest

In UK again, no state reasons have prevented the Home Secretary from disclosing the "cause of
his belief" which led him to issue order of detention but in India facts may not be disclosed under
cl 6 of Art 22 which provides that "Nothing in cl 5 shall require the authority making any such
order as is referred to in that clause to disclose facts which such authority considered to be
against the public interest to disclose".

Preventive Detention has not been defined anywhere in the Indian constitution. while the entries
3 and 9 of the legislative lists 3 & 1 of the Seventh Schedule only mention the subjects relating
to which a law on Preventive Detention may be passed, by the State legislatures and the
Parliament, Article 22 only provides for certain procedural safeguards to be complied with in
framing such laws and enforcing them. But though the constitution does not define Preventive
Detention, the Supreme Court has on various occasions attempted to define the same.

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 CHAPTER THREE: PREVENTIVE DETENTION IN LIGHT OF PERSONAL LIBERTY

Preventive Detention hinders the detenu’s right to move freely and personal liberty on the
grounds of probable suspicion. Both the rights are guaranteed by the constitution. Personal
liberty is guaranteed under Art 21 of the constitution which lays down that "no person shall be
deprived of his life or personal liberty except according to procedure established by law”. The
expression "personal liberty" in Art 21 is, as was held by Bhagwati J in Maneka Gandhi 8 case,
"of the widest amplitude and it covers a variety of rights which go to constitute the personal
liberty of man".

Further Art 19(1)(d) provides all citizens with the right "to move freely throughout the territory
of India" subject however to reasonable restrictions any law may impose 'neither in the interest
of general public or for the protection of the interests of any scheduled tribe".

EXTENT OF JUDICIAL INVOLVEMENT IN PREVENTIVE DETENTION

Powers of Supreme Court under Article 32
It has been held by the Court that the basis of detention cannot be challenged but have a right to
look into the matter under the Article 32 and Article 226. The Courts are more circumspect in
observing them while exercising their said extraordinary equitable and discretionary power in
these cases.

In the case of Mohinuddin v. DM9 it was held that in writ petition of habeas corpus, it is enough
for the detenu to say that he is under wrongful detention, and the burden lies on the detaining
authority to satisfy the court that the detention of the petitioner detenu was legal and in
conformity not only with the mandatory provisions of the Act but also strictly in accordance with
the constitutional safeguards embodied in Article 22(5).

In case of Subramanian vs State of Tamil Nadu10 A Bench of Justices P. Sathasivam and J.

Chelameswar said, “The court cannot substitute its own opinion for that of the detaining
authority when the grounds of detention are precise, pertinent, proximate and relevant, that
sufficiency of grounds is not for the court but for the detaining authority to form subjective
satisfaction that the detention of a person with a view to preventing him from acting in any
8
Maneka Gandhi v Union of India, (1978) 2 SCR 621.
9
Mohinuddin v DM (1987) 4 SCC 58.
10
Subramanian vs State of Tamil Nadu, SC criminal appeal no 417 of 2012.

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manner prejudicial to public order is required and that such satisfaction is subjective and not
objective.”

In Union of India v Dimple Dhakad11 "The court must be conscious that the satisfaction of the
detaining authority is "subjective" in nature and the court cannot substitute its opinion for the
subjective satisfaction of the detaining authority and interfere with the order of detention. It does
not mean that the subjective satisfaction of the detaining authority is immune from judicial
reviewability. By various decisions, the Supreme Court has carved out areas within which the
validity of subjective satisfaction can be tested.”

In case of Manak Singh v State of Punjab 12 the court laid down various sitituations under which
the detenu can challenge his detention:

(a) Where a detenu was detained in violation of the mandatory provisions of the Preventive
Detention Law, the detention order could be challenged on the ground that it was in
contravention of the mandatory provisions of the Preventive Detention Law.

(b) Where the detention order was ordered malafide, the detenu could challenge the same on the
ground that a malafide order was outside the scope of the Preventive Detention Law.

(c) If the detention under the Preventive Detention Law could be ordered on certain specified
grounds, and the detention order was passed on a ground not covered in such specified grounds,
the detenu could challenge his detention on the said ground.

(d) Where the Preventive Detention Law under which detention order was issued suffered from
the vice of excessive delegation, the detenu could challenge his detention on the said ground.

Also, the court has held that such laws should only be applied in absence of any other route to
ensure public safety or economic interests. It is necessary to prove the existence of threat to
public order or security of state or the maintenance of supplies and services essential to the
community in order to detain a person under any Preventive Detention law. A mere law and
order situation cannot be reason for detention.

In order that an activity may be to affect adversely the maintenance of public order, there must
be materials to show that there has been a feeling of insecurity among the general public. If any
11
Union of India v Dimple Dhakad, 2019 SCC OnLine 875.
12
Manak Singh v State of Punjab, AIR 1964 SC 381.

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act of a person panic or fear in the minds of the members of the public upsetting the even tempo
of life of the community, such act must be said to have a direct bearing on the question of
maintenance of public order. The commission of an offence will not necessarily come within the
purview of 'public order'13

In the case of Gulab Mehta v. State of U.P the court held that it is important that there is a threat
to public order for detaining a person under Preventive Detention laws. The court held that an act
whether amounts to a breach of law and order or a breach of public order solely depends on its
extent and reach to the society. If the act is restricted to particular individuals or a group of
individuals it breaches the law and order problem but if the effect and reach and potentiality of
the act is so deep as to affect the community at large and/or the even tempo of the community
then it becomes a breach of the public order.

Further, before making a Preventive Detention order the detaining authority should make sure
that no other penal law can be used to apprehend the purported offender. In the case of Rekha v
State of T.N.14 it was held that “if the ordinary law of the land (Indian Penal Code and other
penal statutes) can deal with a situation, recourse to a Preventive Detention law will be illegal
Whenever an order under a Preventive Detention law is challenged one of the questions the court
must ask in deciding its legality is : Was the ordinary law of the land sufficient to deal with the
situation ? If the answer is in the affirmative, the detention order will be illegal.”

Applicability of test of non-arbitrariness

With regard to Preventive Detention, it is judicially recognized that the safeguards against abuse
of power of arrest and detention contained in clause 2 to 7 of Art 22 are feeble. In order to ensure
protection of fundamental rights with reference to Preventive Detention laws it is necessary to
examine the detention as curtailment of rights guaranteed under Article 19 and 21. Initially
Article 19 and 21 were considered to be exclusive of each other and test of reasonability was
restricted only to Article 19.

As was seen in Gopalan's case15 the majority view was that reasonable restrictions of 19(5) which
restricts freedom of movement cannot be applied to Article 21. However, Fazal Ali, J established
in dissent the relationship between the right to liberty in Art 21 with the right to the freedom of
13
Piyush Kantilal Mehta v Commr of Police, 1989 Supp (1) SCC 322.
14
Rekha v State of T.N., (2011) 5 SCC 244.
15
Supra note 2.

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movement in Art 19. According to him both the phrases meant the same things viz. immunity.
The majority view implied that right to personal liberty under Article 21 can be curbed by
procedure established by law and such law will not be subject to test of reasonableness required
under Article 19(5).

However, after Maneka Gandhi case16 it is an accepted rule that test of reasonableness, or more
precisely test of non-arbitrariness applies to rights protected under Article 14, 19 and 21. In this
case Bhagwati J., observed “the principle of reasonableness, which legally as well as
philosophically is an element of equality or non-arbitrariness, pervades Art 14 like a brooding
omnipresence and the procedure contemplated by Art 21 must answer the test of reasonableness
in order to be in conformity with Art 14. It must be right and fair and just and not arbitrary,
fanciful or oppressive, otherwise it will be no procedure at all and the requirement of Art 21 will
not be satisfied”.

As to the question “whether the prescription of some sort of procedure is enough and sufficient
compliance with Art 21” PN Bhagwati answers the question stating that obviously the procedure
cannot be arbitrary, unfair or un-reasonable and further at the end of the paragraph holds that
even on principle the concept of reasonableness must be projected in the procedure contemplated
by Art 21 having regard to tie impact of Art 14 on Art 21". That is the procedure established by
law must be reasonable, just and fair.

However, MH Beg partially agreed with Bhagwati and remarked that “the clear meaning of Art
22 is that the requirements of the due process of law in cases of Preventive Detention are
satisfied by Art 22 of the constitution itself. "the field of due process for cases of Preventive
Detention is fully covered by Art 22, but other parts of that field (namely) the substantive as well
as the procedural laws ... must satisfy the requirements of both Articles 14 &, 19 of the
constitution".

Hence, the State, as defined in Article 12 of the Constitution, which includes Legislature
(Parliament as well as State Legislatures), Executive (Union as well as State), Local Authorities
as well as Other Authorities, cannot act arbitrarily. State must act fairly and reasonably. Any
State action, which is arbitrary or is not fair and reasonable, would be violative of Article 14 of
the Constitution, and as such, unconstitutional and ultra vires.
16
Supra note 8.

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Also, it is established now that any law providing for Preventive Detention should follow the
principals of natural justice. Natural justice is a great humanizing principle intended to invest law
with fairness and so secure justice.17

In Motilal Jain v. State of Bihar 18, the Supreme Court held that individual liberty is a cherished
right, one of the most valuable fundamental rights guaranteed by the Constitution. If that right is
invaded except strictly in accordance with law, the aggrieved party is entitled to appeal to the
judicial power of the State for relief. The interest of the society is no less important than that of
the Individual. This view was furthered in Krishnan v. State of Madras 19 wherein the court held
that Arts, 21 and 22 confer a fundamental right and constitute a fundamental guarantee, and it is
the duty of the Court to see that the right is kept fundamental and that the fullest scope is given to
the guarantee.

A law of prevention detention under Article 22, thus in light of above discussion, must also
satisfy Arts. 14, 19 and 21.

CHAPTER FOUR: PREVENTIVE DETENTION AND HUMAN RIGHTS

India is one of the few countries in the word whose Constitution allows for Preventive Detention
during peacetime without safeguards that elsewhere are understood to be basic requirements for
protecting fundamental human rights. For example, the European Court of Human Rights has
long held that Preventive Detention, as contemplated in the Indian Constitution, is illegal under
the European Convention on Human Rights regardless of the safeguards embodied in the law.

Violation of Human Rights law

17
Supra note 9.
18
Motilal Jain v. State of Bihar, AIR 1968 SC 1509.
19
Krishnan v. State of Madras, 1951 SCR 621.

15
The Universal Declaration of Human Rights adopted by the General Assembly of the United
Nations on December 10, 1948 declared that no one shall be subject to arbitrary arrest, detention
or exile (Article 9). Article 9(1) of the International Covenant on Civil and Political Rights
1966 declares, inter alia, that “everyone has the right to liberty and security of person (and that)
no one shall be subject to arbitrary arrest or detention”. At times, the arrest under Preventive
Detention laws maybe arbitrary, owing to the wide powers provided to security forces and other
executive bodies.

Clause (3) of Article 9 declares further that “any one arrested or detained on a criminal
charge shall be brought promptly before a judge or other officer authorized by law to exercise
judicial power and shall be entitled to trial within a reasonable time or to release”. Preventive
Detention provisions often violate the right to trial in reasonable time as for instance laws lie
Public Safety Act, 1978 allow detention without trial for a period of 2 years.

It also runs afoul of international standards. Article 4 of the International Covenant on Civil and
Political Rights (ICCPR) - which India has ratified - admittedly permits derogation from
guaranteeing certain personal liberties during a state of emergency. The absence of judicial
involvement violates detainees' right to appear before an "independent and impartial tribunal", in
direct contravention of international human rights law including the ICCPR (Article 14 (1) and
the Universal Declaration of Human Rights (Article 10).

Enforceability of International Human Rights Treaties/Conventions in India

Treaties, agreements and covenants signed and ratified by the Government of India do not
automatically become a part of our domestic law.  Unless and until the Parliament or the State
Legislature undertakes legislation in terms of such agreements or covenants, no one can rely
upon the provisions of the agreement/covenant to claim or found any rights thereon. But so far as
human  rights are concerned, the courts have been adopting a more progressive line and have
declared that insofar as the rights declared in such international instruments are consistent with
the fundamental rights guaranteed by Part Three of the Constitution, they can be read as facets of
and to elucidate the content of the fundamental rights guaranteed by our Constitution vide PUCL
v. UOI20 and Vishakha v. State of Rajasthan21. In the first mentioned case, it is held: “For the

20
PUCL v. UOI, (1997) SCC 1203.
21
Vishakha v. State of Rajasthan, (1997) 6 SCC 241.

16
present, it would suffice to state that the provisions of the covenant, which elucidate and go to
effectuate the fundamental rights guaranteed by our Constitution, can certainly be relied upon by
Courts as facets of those fundamental rights and hence, enforceable as such”. To the same effect
is the holding in the second case, where it is held: “Any international convention not inconsistent
with the Fundamental Rights and in harmony with its spirit must be read into these provisions to
enlarge the meaning and content thereof, to promote the object of the constitutional guarantee”.

Thus, the covenants and treaties signed by India with respect to Human Rights can be enforced
by the courts.

17
 CONCLUSION

Preventive Detention has long been hailed as a measure to ensure national and economic interest
of India. In the sense that such laws are passed as a preventive measure to activities by
individuals which might be detrimental to security of public or economic interest of India.
Article 22 together with entries 9 & 3 of lists I & III respectively gives legislature (which is
further passed on the executive). However, at times such legislations and executive orders are
passed in an unreasonable manner, which ultimately inhibits one’s rights under Article 21. Also,
the safeguards provided under Article 22 with respect to Preventive Detention are insufficient as
it gives unchecked powers to legislatures. Therefore, it is important for the judiciary to examine
such detentions with reference to violation of rights under article 21 (and thus apply test of non-
arbitrariness) instead of limiting itself to satisfaction of article 22 and the safeguards of the law
under which the detenu is detained.

The preventive detention laws in India are more stringent than desirable by international human
rights law and has been criticized several times by various human rights bodies.

Keeping all this in mind it is important to provide more safeguard to a detenu detained under
such laws, and introduce certain limitations such as a maximum time period beyond which a
person should not be detained.

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 BIBLIOGRAPHY

Books

1. Indian Constitutional Law by MP Jain

2. Commentary on Constitution of India by DD Basu

Articles

1. Analysing Preventive Detention laws and article 21 (Yash Vithlani, Keerthanaa B)

2. Role of the supreme court of India on personal liberty under the Preventive Detention
laws a content analysis study (Alagumani, R)
3. The anatomy of an institutionalized emergency: Preventive Detention and personal
liberty in India (derek p. Jink)

Websites

1. https://www.humanrightsinitiative.org

Cases Cited

1. Rex V. Halliday [1917] UKHL 1.

2. A.K. Gopalan v State of Madras AIR 1950 SC 27.
3. Haradhan Shaha v. State of West Bengal 1974 SC 2154.
4. A. K. Roy v. Union of India 1982 AIR 710.
5. Masood Ahmad Bhat v. State of J&K 2019 SCC OnLine J&K 791.
6. Mohinuddin v. DM (1987) 4 SCC 58.
7. Maneka Gandhi v UOI (1978) 2 SCR 621.
8. Subramanian vs State of Tamil Nadu SC criminal appeal no 417 of 2012.
9. Union of India v Dimple Dhakad 2019 SCC OnLine 875.
10. Manak Singh v State of Punjab AIR 1964 SC 381.
11. Piyush Kantilal Mehta v Commr of Police, 1989 Supp (1) SCC 322.
12. Rekha v State of T.N. (2011) 5 SCC 244.
13. Motilal Jain v. State of Bihar AIR 1968 SC 1509.
14. Krishnan v. State of Madras 1951 SCR 621.

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15. PUCL v. UOI (1997) SCC 1203.
16. Vishakha v. State of Rajasthan (1997) 6 SCC 241.

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