WHAT IS PREVENTIVE DETENTION
“Preventive Detention” is basically incarcerating a person without trial. An act, that is supposedly justified for non-punitive ends, and is often described as a preventive rather than a punitive measure. Taken on the basis of apprehension, it restricts the liberty of a person in anticipation of a commitment of crime.
Preventive Detention is entirely different from the arrest and incarceration under standard legal practices where in an event of arrest and detention, the arrested person is granted various safeguards under Article 22 (1) and (2) of the Constitution of India. However, under preventive detention such protections are not extended to the arrested detention. ‘Preventive Detention’ is also referred to as ‘administrative detention’, since the decision making authority lies exclusively upon the administrative or managerial authority.
It is indeed arguable that preventive detention laws are repulsive to the modern democratic principles which deviate from standard criminal law procedure by creation of special powers that allow detention merely on the basis of suspicion. This also raises substantial questions about the individual protection as enumerated under Article 22 of the Constitution. The importance of such law has been a debatable topic wherein the proponents view it is as a necessary evil and the opponents view it is a tyrannical tool meant to secure the interest of vote banks.
HISTORY OF THE LAW
Gaining its origin from the pre-independence era, the first post-independence Preventive Detention law was the Preventive Detention Act, 1950 (PDA) was passed after independence in 1950. Though the said Act was to stay effective for 1 year but as a result of 7 amendments [each amendment extended it for 3 years], it continued to remain in force till 31 December 1969. Since then India has periodically enacted such laws, the most prominent being the Maintenance of Internal Security Act, 1971 (MISA) which was notorious for its use during the Emergency Period in the 1970’s.
States have the power to pass legislations in order to protect national security. These laws vest unimpeded powers in the police to circumvent due process that has been established to protect citizen’s right to fair trial. The power, in cases of preventive detention laws, majorly lies within the hands of the executive rather than the judiciary.
PREVENTIVE DETENTION LAWS IN UTTAR PRADESH
THE NATIONAL SECURITY ACT, 1980
The NSA empowers the Centre or a State government to detain a person to prevent him from acting in any manner prejudicial to national security. Section 3 of the Act confers power on States and Central government to detain any person in the presence of the following grounds:
- Acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India.
- Regulating the continued presence of any foreigner in India or with a view to making arrangements for his expulsion from India.
- Preventing them from acting in any manner prejudicial to the:
- Security of the State;
- Maintenance of the public order; and
- Maintenance of supplies and services essential to the community it is necessary to do so.
THE U.P. CONTROL OF GOONDAS ACT, 1970
The UP Control of Goondas Act, 1970 makes special provisions for the control and suppression of Goondas with a view to the maintenance of public order.
The Act defines a “goonda” as a person who, either by himself or as a member or leader of a gang, habitually commits or attempts to commit or abets offences. Section 2(b) contains eleven markers to determine whether a person is a “goonda” under the act.
The District Magistrate upon being satisfied with the conditions specified in clauses (a), (b) and (c) of sub-section (1) of Section 3, direct him to remove himself outside the area within the limits of his local jurisdiction within such time as may be specified in the order and to desist from entering the said area or the area and such contiguous district or districts or part thereof, as the case may be from which he was directed to remove himself until the expiry of such period not exceeding six months as may be specified in the said order
Section 3 also governs and upholds an individual’s right under Article 22 to consult and be defended by a counsel of his choice.
The Uttar Pradesh Goonda Control (Amendment) Bill, 2021 was also passed by the assembly empowering joint and deputy commissioners of police to act under the legislation.
THE UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967
The Unlawful Activities (Prevention) Act, 1967 (UAPA) is the primary counter-terror law in India. UAPA provides for a more effective prevention of certain unlawful activities of individuals and associations [, and for dealing with terrorist activities,] and for matters connected therewith.
An unlawful activity means any action taken by any organization or an individual who intends to bring cession or results into separation or which disrupts or questions the sovereignty and territorial integrity of India.
UAPA loosely defines terrorism as “any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people.”
The UAPA 1976 has been amended several times i.e., in 2004, 2008, 2013 and the most recent amendment is the amendment act of 2019 which incorporates the provisions concerning terrorism from POTA into UAPA.
- The recent amendment of Section 35 has given the power to the central government to designate an individual or an organization as terrorist if: – They participate or commit acts of terrorism, prepares or promotes terrorism, or are otherwise involved in the activities of terrorism.
- Although the Act defines a Terrorist Act under Section 15 but it fails to define a terrorist, leaving room for ambiguous interpretation.
- Further, Section 43-D of the UAPA Act which states that if the investigation is not completed within a stipulated time frame a person can be detained for a period of 180 days without even filing of charge sheet and such period.
Another major change from the 2019 amendment was the insertion of the 4th schedule to the act. As the UAPA act gives power to the government to declare anyone as a terrorist, the government can add the name of the individual in the 4th schedule but there is no as such recognized due process of adding the name of an individual to the 4th schedule. The individual whose name has been added is provided with the remedy that within a period of 45 days he can make an appeal to the government that his name should be removed from the 4th schedule and to act upon such appeal a review committee will be set up with a retired/sitting judge as its head along with 3 other members. Once a person is booked under UAPA, it has to spend 180 days’ time period in jail before applying for bail.
A moral assessment must be taken to balance both ends of the spectrum i.e. the lives and freedom of the society and the life and personal freedom of a person detained. It is apparent that the scope for Judicial Review in the field of preventive detention is extremely limited. Preventive detention laws are designed to be highly administratively steered in order to limit the judicial interference. This places unfettered and largely unchecked power in the hands of the executive without any liability, allowing the potential of grave misuse of such powers. The delay it usually takes to apply for, let alone get judicial relief, works to the advantage of the executive. Even in cases where such laws are found to have been misused, the ultimate purpose of keeping the person behind bars for a long period is ultimately served.