Author: Subhashree Das
V Year | Madhusudan Law College, Cuttack
The Constitution of India nourishes human rights by incorporating a list of fundamental rights in part III. Article 19 guarantees Freedom of Speech and Expression and Article 21 provides the Right to Life and Personal liberty. These Articles lie at the heart of the Constitution and are the most vital part of the Constitution.
The Indian democracy has a unique history of violent religious clashes. This comes with a price of reasonable restrictions such as preventive detention. Article 22 provides a provision for preventive detention that allows the arrest of a person without trial.
What is preventive detention?
The Oxford Dictionary defines preventive detention as imprisonment of a person to prevent further offences or further disruption of public order. The justification for preventive detention is that no freedom is absolute.
One cannot perceive personal freedom in isolation; instead it is a collective freedom of the society.  The reasonable restrictions laid down by the Indian constitution aim to enlarge individual freedom to ensure that all the citizens enjoy the said freedom equally. However, the philosophy of preventive detention contradicts the principles of natural law.
The philosophy of natural law propagates punitive detention only after the commission of a crime. This is fundamentally different from preventive detention. Preventive Detention has a distinctive character that aims not to punish the individual for his wrong but to curtail his liberty with a view of preventing his dangerous activities in the future.
Stand of Democracies on Preventive Detention:
In a free society like ours, preventive detention is a necessary evil. It intends to curtail the freedom and liberty of a person under exceptional circumstances for security and public safety. The logic of preventive detention is twofold. Firstly, the willingness to detain a person is to protect the interests of those who remain free. Secondly, the rationality of preventive detention rests on the mistrust of traditional criminal procedure, which meets a lot of judicial resistance.
Article 22 protects against arbitrary, preventive as well as punitive detention. It also provides the scope to frame laws or provisions for a class or classes of cases where there can be longer detention period without the advisory board’s approval, and the maximum period of detention in such cases.
In India, preventive detention applies in times of peace and in times of emergency. Further, the Constitution Drafting Committee, stated that the object of preventive detention is to remove evil people, who undermine the Constitution and the State. The State must be invested with sufficient power to guard against that evil for the liberty of any person to be flourished and secured.
Preventive Detention Laws in India:
Our constitution makers paved the way for various security and anti-terrorism laws enactment. Presently, these are the laws that regulate preventive detention in India-
Indian Penal Code:
Section 124A of the Indian Penal Code (IPC), 1860, a sedition provision, as old as the British era is still in effect to detain for expressing disaffection towards the government.
Unlawful Activities Prevention Act:
Unlawful Activities and Prevention Act (UAPA), 1967 was used to detain any organization involved in unlawful or terrorist organizations. But after the amendment in 2019, the government now has the power to detain any “individual” or “group of individuals” for doing any unlawful activity by declaring them as terrorists, making it even more draconian. In this Act, Section 15 designates terrorist activities as anything which intends to threaten or is likely to threaten the unity, integrity, security, or sovereignty of India. The phrases such as “intends” and “likely” provide vague grounds, giving scope to colourful twisting of uttered words as well as the imposition of malicious intention that satisfies the authoritarian government.
Further, the Act says that “unlawful activity includes anything that causes or intended to cause disaffection against India”. The interpretation of this provision is limitless. Therefore, government has held activities like protesting, reading a book about the protest, not standing up for the national anthem, or even posing positive opinions for an unfriendly nation etc., sufficient to constitute unlawful activity.
UAPA applied on many dissenters who participated in the anti-CAA protests such as Meenan Haider, Safoora Zargar, Devangana Kalita, Natasha Narwal, Khalid Saifi, Umar Khalid, and others. Concurrently, the government booked a journalist Siddique Kappan under UAPA upon the apprehension that he may violate the law. In 2019, the police registered around 1,226 UAPA cases, which is a 33% increase from 2016.
Public Safety Act:
Earlier, Public Safety Act (PSA), 1978, was an instrument to prevent timber smuggling. Now, it includes provisions such as detention of minors, detention without trial, violation of right to bail and legal representation, ill-treatment, and unfair trial which violates the country’s several obligations under international human rights conventions. Critics call this legislation “lawless law” .
National Security Act:
Similarly, National Security Act (NSA), 1984 lays down stringent grounds to detain a person based on the subjective satisfaction of the detaining authority. The detention cannot be avoided even if some part of the ground is vague, non-existent, non-relevant, or even without any connection with such person. The subjective satisfaction of the executive was an irrational and improper exercise of power.
Government abolished many preventive detention laws because they had failed to serve the purpose underlined under Article 22 and slowly became anti-humanitarian. For example, the Preventive Detention Act, 1950, Maintenance of Internal Security Act, Prevention of Terrorism Act, etc. Central government repealed these Acts as they violated many international human rights standards.
Further, Terrorist and Disruptive Activities Prevention (TADA) was in force between 1985-1995 and was an anti-terror law. However, out of 67,000 people detained under TADA, only 8000 people went on trial and only 725 were actually convicted. Around 59,509 people had been detained with no case being brought against them. TADA review committee found that the police wrongly applied the Act in more than 50,000 cases throughout India. The conviction rate was less than one per cent yet thousands went under prolonged detention without ever being convicted. Consequently, most of them belonged to protesters, trade unionists, and religious minorities.
The legislature should make the grounds of detention more liberal, unambiguous, and precise. The members of the advisory board must act independently. Therefore, detaining a person on vague grounds, to satisfy personal vendetta or on mere suspicion must be avoided. Moreover, the judiciary must deal with pleas seeking judicial scrutiny upon the legitimacy of grounds of detention with urgency. Detention is expensive. Detention of an innocent is wasteful and involves the using taxpayers’ money which could be used productively.
In a democratic country, civil liberties possess the utmost value. Fundamental rights are essential to impose limitations on the tyranny of the executive and arbitrary laws of the legislature. As rightly stated in Vol.59 of the Columbia Law Review, “it is a delusion to think that nation’s security is advanced by the sacrifice of individuals basic liberties.”
How would a responsible citizen perform his democratic rights if patriotism or a mere expression of democratic rights can be labelled as “terrorism”? The essence of democracy wouldn’t survive if state imposes reasonable restrictions unreasonably through legitimized loopholes.
The saying that “power corrupts but absolute power corrupts absolutely” fits perfectly with the present situation of our country. Chiefly, in the name of terrorism, many political dissenters, opposition leaders, minorities, activists, students, professors, and human rights defenders have been targeted and the figures are continuously rising. Freedom of speech and expression and the right to life and personal liberty are limbs of a democracy. Imparity of such will defeat the idea of India as a democracy and lead her to the rabbit hole.
 INDIA CONST. art. 22.
 M. L. Upadhyaya, Review of THE LAW OF PRESS CENSORSHIP IN INDIA by Soli J. Sorabjee, 20 2 JOURNAL OF INDIAN LAW INSTITUTE, 315, 315-320 (1978), http://www.jstor.org/stable/43950534.
 Roger Douglas, Law, Liberty, and the Pursuit of Terrorism, 192-193 (University of Michigan Press 2014).
 Constituent Assembly Debates, Volume IX, P.
 Unlawful Activities (Prevention) Amendment Act, 2019.
 Scroll Staff, Supreme Court allows journalist Siddique Kappan to meet his mother via video conferencing, SCROLL, (Jan. 22, 2021, 09:37 PM), https://scroll.in/latest/984838/supreme-court-allows-journalist-siddique-kappan-to-meet-to-his-mother-via-video-conferencing.
 LEAH VERGHESE, NCRB 2019 data shows 165% jump in sedition cases, 33% jump in UAPA cases under Modi govt, THE PRINT (Oct. 12, 2020, 12:54 PM), https://theprint.in/opinion/ncrb-2019-data-shows-165-jump-in-sedition-cases-33-jump-in-uapa-cases-under-modi-govt/521861/.
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 National Security Act, 1984, § 3(2), No. 24, Acts of Parliament, 1984 (India).
 National Security Act, 1984, § 5A(a), No. 24, Acts of Parliament, 1984 (India).
 Suhas Chakma, Do ends justify means? INDIA SEMINAR, (Mar. 15, 2020, 04:15 PM), https://www.india-seminar.com/2002/512/512%20suhas%20chakma.htm.
 Noshirvan H. Jhabvala, The Constitution of India 60 (C. Jamnadas &Co. 2010).
Editor: Muskaan Aggarwal