Preventive Detention Law Under Legal Scrutiny in Two States: Why Is It Debated?

The Preventive Detention Act has a colonial legacy and violate human rights, says legal expert.

Why Are the Preventive Detention Laws in India Debated?

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On 23 June, the Tamil Nadu State Public Prosecutor wrote to the DGP, asking the police officers in the state to not invoke preventive detention laws at the drop of a hat. The law officer said that most of the preventive detention orders get quashed by the High Court because they get passed in trivial cases too and not necessarily in those that affect public order, The Hindu reported.

A few days earlier, on 20 June, the Telangana High Court expressed its anguish over what it called the callous exercise of the exceptional power of preventive detention by the detaining authorities and the Telangana state government.

Dr V Suresh, Advocate, Madras HC and General Secretary PUCL said that many courts have spoken about the need for reform of preventive detention laws in India however, a sitting public prosecutor in Tamil Nadu criticising the preventive detention laws is a welcome move and it deserves huge appreciation. He added that such an event has not happened anytime in the last 40 years.

But what are the Preventive detention laws in India and are they misused by the state?

What Are Preventive Detention Laws?

Preventive detention laws in India grant the government the authority to detain individuals without trial for the purpose of preventing certain activities that are deemed prejudicial to national security, public order, or the maintenance of essential services. These laws empower the state to take proactive measures to prevent potential threats and maintain stability.

The preventive detention laws ensure the protection of national security and public order by allowing authorities to take preemptive action against individuals who may pose a risk. These laws aim to prevent acts such as terrorism, insurgency, organized crime, and other activities that could disrupt peace and stability.

The provisions of preventive detention laws vary based on the specific legislation in force. In India, various laws provide for preventive detention, including the National Security Act (NSA) of 1980, the Unlawful Activities (Prevention) Act (UAPA) of 1967, and state-specific laws like the Maintenance of Internal Security Act (MISA) and the Public Safety Acts (PSA) in certain states.

Under these laws, authorities can detain an individual for a specific period, typically up to 12 months, without presenting formal charges or conducting a trial. The detention order is issued by a designated authority or government official and is subject to periodic review by an advisory board.

V Suresh, Advocate, Madras HC, and General Secretary of PUCL, says the preventive detention laws in India have a colonial legacy.

"The British used it (preventive detention laws) to curb the freedom movement, to silence anyone who questioned the state. They used the law to jail anyone who challenged the government. The reason why these laws have been debated for so long and have not been scrapped yet is the untold political consensus that they are beneficial for anyone who becomes a ruling party. Using it even today is only a reflection of how ruling parties in the Indian states can effectively abuse such laws."

V Suresh, Advocate, Madras HC, and General Secretary of PUCL

Loopholes, Potential abuse, and Criticism of the Preventive Detention Act

The preventive detention laws in India continue to spark controversy as they allow for arrest without trial and disbar anticipatory bail, infringing upon the individual liberty guaranteed to the citizens of India.

Critics of preventive detention laws argue that they can be prone to misuse and violations of individual rights. Concerns have been raised regarding the lack of sufficient judicial oversight, vague and broad language in the laws, limited safeguards, and the potential for political misuse.

The Supreme Court bench of justices, in April 2023, while hearing the case of Pramod Singla vs Union of India, noted that:

"Laws that have the ability to confer arbitrary powers to the state, must in all circumstances, be very critically examined, and must be used only in the rarest of rare cases. In cases of preventive detention, where the detenue is held in arrest not for a crime he has committed, but for a potential crime he may commit, the courts must always give every benefit of doubt in favour of the detenue, and even the slightest errors in procedural compliances must result in favour of the detenue."

The Supreme Court

Advocate Suresh said, "With my experience as a lawyer, I have observed that the preventive detention laws mostly impact minorities such as Muslims and Dalits. Even if goons who are considered habitual offenders are arrested even before they commit a crime, it is more likely that a goon who is in close alliance with the opposition party will be arrested when compared to those who are in the internal links of the ruling party."

Should the PD Act Be Scrapped or Amended?

While the possibility of misuse of the preventive detention laws emphasises that there is a dire need for the exceptional power of preventive detention to be exercised with prudence only in exceptional cases since it encroaches upon the freedom of an individual, there is debate around whether these laws must be scrapped altogether or if there is a need for their amendment.

"During the constituent assembly between 1946 and 1949, there was a debate on whether Article 19(1)(a) (right to freedom of speech and expression) and Article 21 of the Constitution (right to life and personal liberty) should be limited by the right to Preventive detention. Many who came from the freedom movement opposed retaining the preventive detention laws and claimed they were a scar on democratic India. However, some leaders spoke for the preventive detention laws, stating that India is still a nascent democracy and that these laws can be rethought later on to determine whether they should be repealed altogether."

Dr. V Suresh Advocate, Madras HC and General Secretary PUCL

Advocate Suresh also said that, "The time spent on cases under preventive detention can potentially impact the quality time that could be allocated to other cases within the judicial system...Not just this, the person who is detained under the preventive detention law does not get bail and is forced to spend a considerable amount of time in jail even if he proves he is not a threat, which is in violation of human rights."

Furthermore, if preventive detention cases involve complex legal issues or constitutional considerations, they may require additional judicial scrutiny and analysis, further extending the time allocated to these cases.

"Despite the fact that several decades have passed, we have made little progress in establishing a system that ensures no state agencies possess the authority to violate the individual liberties granted to us."

Dr. V Suresh Advocate, Madras HC and General Secretary PUCL