RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB

ADMINISTRATIVE LAW

"REASONED DECISIONS ON PREVENTIVE DETENTION CASES (AGAINST)"

GROUP NO. - 10

DATE - 10.09.19

SUBMITTED BY: SUBMITTED TO:

Digaant Awasthi Dr. Renuka Soni
Section - A Asst. Professor of
Law
17051
RGNUL
 ACKNOWLEDGEMENT

I would like to show my sincere gratitude to Dr. Renuka Soni, Assistant Professor of
Law, Rajiv Gandhi National University of Law, Patiala for giving me thorough advices
and suggestions in making the concerned assignment throughout numerous consultations.
Many people, especially my classmates, have made valuable comments and suggestions
regarding this project which helped me to improve my project. The completion of this
assignment gave me immense self-satisfaction as well as confidence to further endeavour
in research work. I would also like to extend my deepest gratitude to all those who have
directly and indirectly guided me in making this project.

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 TABLE OF CONTENTS
1.1 Introduction ................................................................................................................................ 4
1.1.1 Objective of Preventive Detention Laws ............................................................................. 4
1.1.2 Development of Preventive Detention Laws in India .......................................................... 5
1.1.2.1 Different Preventive Detention Provisions in India ..................................................... 6
1.1.2.2 Recent changes in Preventive Detention Laws ............................................................ 7
1.1.3 Arguments against Preventive Detention laws ................................................................... 8
1.1.3.1 Procedural lapses ...................................................................................................... 10
1.1.3.2 Human Rights' Perspective ........................................................................................ 11
1.2. The infamous "Emergency of 1975": ADM Jabalpur v. Shivakant Shukla ............................ 12
1.2.1 Background ....................................................................................................................... 12
1.2.2 Judgment ........................................................................................................................... 13
1.2.3 Aftermath of the Judgment ................................................................................................ 16
1.3 Conclusion ............................................................................................................................... 17
1.3.1 Suggestions ....................................................................................................................... 19
REFERENCES .................................................................................................................................. 20

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 REASONED DECISIONS ON PREVENTIVE DETENTION CASES

-Digaant Awasthi

1.1 Introduction
Preventive detention means detention of a person without trial and conviction by a court,
merely on suspicion in the mind of an executive authority on the presumption that if that
person would be released may prove harmful for the society. They can commit additional
crime if they are released. Preventive detention is fundamentally and qualitatively
different from imprisonment after trial and conviction in a criminal court. Preventive
detention and prosecution for an offence are not synonymous. In conviction an accused is
sought to be punished for a past act. The offence has to be proved beyond reasonable
doubt. In preventive detention, on the other hand, a person is detained without trial in the
subjective satisfaction of the executive to prevent him from committing an undesirable
act in future. The aim behind the preventive detention law is to prevent a person from
doing something which would be to danger for pubic peace or safety or concerning public
disorder. The word “preventive” is used to distinguish it from the word “punitive”. To
quote the words of Lord Finley in R vs. Haliday1, “it is punitive but precautionary
measure.” Preventive detention differs from the ordinary or punitive detention both in
respect of its purpose and its justification.

1.1.1 Objective of Preventive Detention Laws

The object of preventive detention 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. A person can be put
in custody for two reasons, one is that he has committed a crime, and another is that he
his potential to commit a crime in future. The custody arising out of the latter is
preventive detention. Thus preventive detention is done before the crime has been
committed. Preventive detention is also used when the release of the accused is felt to be
detrimental to the state’s ability to carry out its investigation. In order to understand why
a provision permitting detention without trial i.e., preventive detention finds a place in

1
R v. Haliday, 1917 AC 260, 269.

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Part III of the Constitution dealing with fundamental rights, we need only to see the
backdrop around the time our Constitution was framed by the Constituent Assembly.
In A.K. Gopalan vs. State of Madras2, Patanjali Sastri, J explained the necessity of
preventive detention in the following words:
“This sinister-looking feature, so strangely out of place in a democratic
Constitution, which invests personal liberty with the sacrosanctity of a
fundamental right, and so incompatible with the promises of its Preamble, is
doubtless designed to prevent the abuse of freedom by anti-social and subversive
elements which might imperil the national welfare of the infant republic.”

1.1.2 Development of Preventive Detention Laws in India

India became free in 1947 and the Constitution was adopted in 1950. It is extraordinary
that the framers of the Indian Constitution, who suffered most because of the Preventive
Detention Laws, did not hesitate to give Constitutional sanctity to the Preventive
Detention Laws and that too in the Fundamental Rights chapter of the Constitution. Some
parts of Article 22 are not Fundamental Rights but are Fundamental Dangers to the
citizens of India for whom and allegedly by whom the Constitution was framed, to usher
in a new society, with freedom of expression and freedom of association available to all.
In 1950 itself, a Prevention Detention Act was piloted by Sardar Patel, who said that he
had several '"sleepless nights'" before he could decide that it was necessary to introduce
such a Bill. And in 1950, under this Act, ordinary disturbers of order and peace were not
arrested, but a political leader of A.K. Gopalan's eminence.

Even from that initial action, it was evident that these Acts were meant to curb political
dissent, and that legacy has been and is being followed. It is worth bearing in mind that
no other civilized country, including Britain which brought Preventive Detention laws
here, felt compelled to introduce such laws during peace time. Even during the last World
War, most European countries and the USA, who were all directly involved in the war,
had no such law. During the War, England introduced a Preventive Detention Law to the
effect that a person could be detained only on the subjective satisfaction of the Home
Minister of Great Britain and not on the subjective satisfaction of a puny magistrate, as it

2
A.K. Gopalan v. State of Madras, AIR 1950 SC 27: (1950) 51 Cri Lj 1983.

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the case here. a committee was formed regarding PD, headed by Lord Gardiner to probe
and to find out if it was necessary to have such an Act even in Ireland. The Gardiner
Committee Report reads: '"Preventive Detention can only be tolerated in any democratic
society in the most extreme circumstances. It must be used with the utmost restraint and
retained only so long as it is strictly necessary". "Preventive detention," as understood in
such laws, involves detention without criminal trial. That is, no criminal offense is
proven, nor any charge formulated. Clearly deviating from typical criminal procedure,
preventive detention laws establish "special powers" allowing for the detention of
persons without trial on the suspicion that the detainee poses a threat to "public order" or
"national security.

1.1.2.1 Different Preventive Detention Provisions in India

Pursuant to this constitutional authorization, India's provisional Parliament enacted the

Preventive Detention Act (PDA) in 1950.67 The PDA empowered the government to
detain persons without charge or trial in the name of public safety and security.68 In the
first case brought before the Supreme Court of India-A.K. Gopalan v. State of Madras
the Court upheld the constitutionality of the PDA.69 Specifically, the Court held that
Article 22 of the Constitution provides an exhaustive code of the procedural safeguards
required of preventive detention laws. 70 Although the PDA was challenged on the
ground that it violated several fundamental rights provisions-Articles 14, 19,72 and 21
73-the Court found no constitutional infirmity because the explicit provisions of Article
22 (5) were satisfied.74 Although the PDA lapsed in 1969, the Parliament enacted the
Maintenance of Internal Security Act (MISA) only two years later. 5 The provisions of
the MISA were virtually identical to the provisions of the Preventive Detention Act.
Following the infamous emergency of the mid-1970s in which preventive detention was
widely used as a political 76 weapon , the MISA was also allowed to expire in 1978. 77
Two years later, upon Indira Gandhi's return to power, a new preventive detention law
was enacted-the National Security Act (NSA)- which remains in effect today.78 In short,
with the exception of two brief periods, Indian law has provided for preventive detention
since independence.79 Not surprisingly, preventive detention has insinuated itself into the
institutional matrix of Indian law enforcement. The details of India's "peace-time"

6
preventive detention regime demonstrate both the nature and the prevailing modes of
justifying this extraordinary practice. The remainder of this Part addresses these issues.

1.1.2.2 Recent changes in Preventive Detention Laws

The union cabinet not only changed the NIA act 2008 but also changed the Unlawful
Activities (Prevention) Act, 1967. Lok Sabha passed the NIA amendment act, 2019 on
Jul 15, 2019 and Rajya Sabha Passed it on 17th July 2019. Amendment to Schedule 4 of
the Unlawful Activities (Prevention) Act will allow the NIA to declare an individual
suspected to have terror links as a terrorist. Currently only organisations are designated as
'terrorist organisations' but after the change in the UAPA, 1967 an individual can also be
termed a terror suspect. president Ram Nath Kovind has given assent to a legislation
under which individuals can be declared as terrorists and their properties seized, officials
said on Friday. "The Unlawful Activities (Prevention) Amendment Act, 2019 also
provides for putting travel ban on such individuals once they are declared as terrorists.
India's most wanted, Lashkar-e-Taiba founder Hafiz Saeed and Jaish-e-Mohammad chief
Masood Azhar, are likely to be the first two individuals to be designated as terrorists
under the legislation, the officials said. The amendments give powers to the Director
General of the National Investigation Agency (NIA) to attach properties acquired from
proceeds of terrorism."3 Earlier, the law required that the NIA take prior permission from
the respective state police chief to attach the proceeds of terrorism. This delays the
process as often such properties are in different states, another official said. Earlier,
officers in the rank of Deputy Superintendent of Police and above were empowered to
investigate cases under the UAPA as per Section 43. Now, officers in the rank of
Inspector are empowered to do so. The inspector-rank officers have over time acquired
sufficient proficiency to investigate UAPA-related cases and this move would quicken
the delivery of justice in such cases, which are reviewed by senior officers at various
levels. A Public Interest Litigation (PIL) has been filed in the Supreme court against the
Unlawful Activities (Prevention) Amendment Act, 2019 (UAPA), seeking direction to
declare it unconstitutional. The petition has been filed by Sajal Awasthi, who claims to be
a pubic spirited individual and a good Samaritan. He alleged that the UAPA act was
3
C.M. Jariwala*, " Preventive Detention in India: Experiences and some Suggested Reforms", 1999,
http://14.139.60.114:8080/jspui/bitstream/123456789/735/21/preventive%20detention%20in%20india.pdf.

7
against the basic fundamental rights enshrined in the Constitution of India. It is against
Articles 14, 19 and 21, representing the Right to Equality, Freedom of Speech and
Expressions, and Right to Life, respectively.

1.1.3 Arguments against Preventive Detention laws

To detain someone on the ground of dangerousness, it must be proven that he is likely to
commit a crime in the future. However, it is impossible to prove beyond a reasonable
doubt that someone will commit a future act. Most persons do not declare their intent to
engage in criminal conduct. In effect, the future commission of an offense cannot be
proven but only assessed. "This is an assessment related to an intention, or perhaps a
propensity, which attempts to ascertain someone’s innermost thoughts in order to
anticipate his or her behavior.33 The power to detain someone to prevent future offenses
is based on an assumption regarding the decision-maker’s ability to reasonably assess a
person’s future dangerousness."4 However, according to many scholars, it is highly
doubtful that such an assessment is possible to an acceptable degree of certainty.34
Moreover, scholars have criticized the absence of reliable data regarding the link between
preventive detention and the dimensions of crime—apart from isolated, marginal cases—
arguing that there is no clear empirical evidence of a danger to public safety resulting
from a waiver of this ground of detention.35

Preventive detention laws in the country have come to be associated with frequent
misuse. Such laws confer extraordinary discretionary powers on the executive to detain
persons. In the absence of proper safeguards, preventive detention has been grossly
misused, particularly against the Dalits and the minorities. Several States have a law
popularly known as the ‘Goondas Act’ aimed at preventing the dangerous activities of
specified kinds of offender. "The Supreme Court in its order struck down the detention of
a man who had allegedly sold spurious chilli seeds in Telangana, holding that the grounds
of detention were extraneous to the Act. Section 3 of NSA gives the Central Government
the power to detain any person if the government is 'satisfied' that it is 'necessary' to do so
with a view to prevent him from acting in any manner prejudicial to any one or more of

4
Shivangi Gangawar, " Due Process v. Procedure established by Law: Constitutional Perspective", 2016,
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=981fc484-d07b-4dd4-8a13-
f24b15eac4b2&txtsearch=Subject:%20Constitution.

8
the following interests of the State"5: Defence of the State, Relation of the State with
foreign power, Security of the State, Public order; and Maintenance of supply of services
essential to the community. Since none of these concepts are capable of being defined
with any great degree of certainty and definiteness, the scope of abuse is admittedly
colossal. The Preventive Detention laws are arbitrary in nature to the extent that the
provisions under Section 15 of the TADA Act stand in complete contravention to the
rule of evidence laid down under Section 26 of the Indian Evidence Act, 1872. While
Section 26 of the Evidence Act clearly states that Confession by accused while in custody
of police is not to be proved against him, however, the provisions under Section 15 of
TADA Act stipulates that certain confessions made to police officers can be taken into
consideration as evidence and be proved against him.

In Kashmir the Preventive Detention Laws have been blatantly misused and the arbitrary
arrest and detention of those peacefully voicing dissent is continuing in Jammu and
Kashmir, India, with the Public Security Act (PSA) increasingly being used to punish
those who criticise the government. Another law which is misused is the COFEPOSA,
under which a person found in possession of contraband can be imprisoned without trial
and bail for a period of one year despite the possibility that the person may have been
duped into carrying the contraband, because, it is often seen that baggage carried by
people in good faith on behalf of their friends or relatives contains smuggled goods and
they end up in prison under COFEPOSA. Unfortunately, the law does not recognise
innocence even in such genuine cases.

Section 3 of NSA gives the Central Government the power to detain any person if the
government is satisfied that it is necessary to do so with a view to prevent him from
acting in any manner prejudicial to any one or more of the interests of the State like
defence of the State, relation of the State with foreign power, Security of the State and
Public order, etc. Since none of these concepts are capable of being defined with any
great degree of certainty and definiteness, the scope of abuse is admittedly colossal. In
Kashmir the Preventive Detention Laws have been blatantly misused and the arbitrary
5
David H. Bayley, " The Indian Experience with Preventive Detention", Pacific Affairs, University of
British Columbia ,Pacific Affairs, Vol. 35, No. 2 (Summer, 1962), pp. 99-115,
https://www.jstor.org/stable/2753245

9
arrest and detention of those peacefully voicing dissent is continuing in Jammu and
"Kashmir. Another law which is misused is the COFEPOSA, under which a person found
in possession of contraband can be imprisoned without trial and bail for a period of one
year despite the possibility that the person may have been duped into carrying the
contraband, because, it is often seen that baggage carried by people in good faith on
behalf of their friends or relatives contains smuggled goods and they end up in prison
under COFEPOSA".6 Unfortunately, the law does not recognise innocence even in such
genuine cases. But what is more appalling is the denial of the detenu's fundamental right
to be represented by a professional lawyer before the Board. This is a blatant violation of
human rights and goes against Article 22(1) of the Constitution. It takes up to six months
or sometimes even more before a habeas corpus petition is filed and is taken up by the
High Court, and till such time the detenu languishes in prison under extremely trying
conditions, as per the reports of Prison Statistics in India 2015 a number of 2,599 inmates
including 37 foreigners are detenu.

1.1.3.1 Procedural lapses

Normally before a preventive detention case is brought before the High Court, a three
member Advisory Board headed by a sitting High Court Judge is constituted by the
government to examine whether the detention is justified or not. Surprisingly, the
proceedings of the Board are confidential except for that part of the report which
expresses the opinion of the Board. But what is more appalling is the denial of the
detenu's fundamental right to be represented by a professional lawyer before the Board.
"This is a blatant violation of human rights and goes against Article 22(1) of the
Constitution. It takes up to six months or sometimes even more before a habeas corpus
petition is filed and is taken up by the High Court, and till such time the detenu
languishes in prison under extremely trying conditions, as per the reports of Prison
Statistics in India 20156 a number of 2,599 inmates including 37 foreigners are detenu."7

6
A. G. Noorani, " Preventive Detention in India", Economic and Political Weekly,
Vol. 26, No. 46 (Nov. 16, 1991), p. 2608, https://www.jstor.org/stable/4398297.
7
Rinat Kitai-Sangero, "The Limits of Preventive Detention", 2009,
http://14.139.60.114:8080/jspui/bitstream/123456789/735/21/Preventive%20Detention%20in%20India.pdf.

10
In the normal course of things preventive detention laws should have lapsed after India
attained Independence; but the founding fathers of our Constitution decided to retain
preventive detention to curb anti-national activities. "One of the first Acts of independent
India was the Madras Suppression of Disturbances Act (1948) that authorized the use of
military violence against the peasants in Telangana. The first Preventive Detention Law
passed by the Parliament in 1950 was The Preventive Detention Act, 1950."8 The
Constitutional validity of this act was challenged in the Supreme Court in the A.K.
Gopalan’s Case3 whereby, the Supreme Court held this Act constitutionally valid except
some provisions. "This Act extended till 31 December 1969, being re-enacted seven
times in the process before it expired, to make it valid for 3 more years. After the expiry
of this Act in 1969, the Maintenance of Internal Security Act (MISA) was enacted in
1971, followed by its economic adjunct the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act (COFEPOSA) in 1974 and the Terrorism and
Disruptive Activities (Prevention) Act (TADA) in 1985. "9"Though MISA and TADA
have been repealed, COFEPOSA continues to be operative along with other similar laws
such as the National Security Act (NSA) 1980, the Prevention of Black marketing and
Maintenance of Essential Commodities Act 1980 and the draconian Prevention of
Terrorism Act (POTA) 2002; not to mention laws with similar provisions enacted by the
State governments."10

1.1.3.2 Human Rights' Perspective

Critics of these laws often assert that "administrative detention" or "preventive
detention," as defined in these laws, is inconsistent with well-settled international human
rights standards. International human rights scholars and activists typically characterize
these practices as "de facto states of emergency" that fail to comply with established
international standards regulating the declaration and administration of 21 emergency

8
Stella Burch Elias*, "Rethinking “Preventive Detention” from a comparative perspective: Three
Frameworks for detaining terrorist suspects",
https://pdfs.semanticscholar.org/5b41/6f5865eb34db99c2c2f3370d2b762ffb1461.pdf.
9
Rajesh Kumar, " Preventive Detention and the Right of Personal Liberty in India: A Critical Study",
International Journal of Socio Legal analysis and Rural Development volume 3 issue.
10
Kimberly Kessler Ferzan, " Preventive Justice and the Presumption of Innocence", 11 Dec 2012,
University of Virginia, School of Law,https://papers.ssrn.com/sol3/papers.cfm?abstract_id=218797

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regimes. 7 In short, these critics analyze preventive detention as the product of
illegitimate, undeclared states of emergency; the resultant rights limitations are therefore
analyzed as impermissible derogations from established international human rights
standards. These critics are certainly right to point out that the international rules
pertaining to "states of emergency" provide the exclusive basis for derogating from
international legal obligations. Furthermore, very few, if any, of the states invoking
emergency or exceptional conditions to justify preventive detention have satisfied the
substantive and procedural rules regulating derogations.258 On the surface, this analysis
of preventive detention laws is obviously sound. As I have discussed in some detail, the
actual legislative and justificatory practices utilized in India demonstrate, however, that
the standard account is lacking.

1.2. The infamous "Emergency of 1975": ADM Jabalpur v. Shivakant Shukla

1.2.1 Background
It all started with a judgement delivered by the Allahabad High Court on June 12, 1975,
by Justice Jagmohan Lal Sinha. In State of Uttar Pradesh v. Raj Narain[1] the petitioner
challenged the election of Indira Gandhi to the Lok Sabha and the resultant victory from
Rae Bareli constituency in U.P. On 12 June, she was convicted by Justice Sinha, of
having indulged in wrong practices and declared her election void, that means she
couldn’t contest any election or hold her office for the period of next six years. She
appealed to the supreme court and the Apex court only granted her a conditional stay.
Due to restraining her political power by the Apex court made her dysfunctional in a
matter of vote or speak in Lok Sabha.[2] In desperation to hold the chair of Prime
Minister, she requested then President Fakruddin Ali Ahmad to declare an emergency
under Clause (1) of the Article 352 of the Indian constitution which he did on June 26,
1975. The Government said, “a grave emergency existed whereby the security of India
was threatened by internal disturbances”.

On June 27 1975, the exercise of power given by Clause (1) of Article 359 of the
constitution were enforced on the people of India and the foreigners, within the right to
approach the court to enforce Article 14 (right to equality), Article 21 and Article

12
22(prevention against detention in certain cases), Which are also available for foreigner
and all the proceeding that was pending related to above- mentioned article will remain
suspended for the period of Emergency. Anyone who was considered to be a political
threat to the authorities or anyone who could raise his/her political opinion freely was
taken into custody without trial under Prevention Detention Laws. "This caused led to
arrest of many leaders from opposition such as Atal Bihari Vajpayee, Morarji Desai, Jay
Prakash Narayan, Lal Krishna Advani, under MISA (Maintenance of Internal Security
Act) because all these leaders were proving to be a political threat to the Indira Gandhi.
These people then filed petitions in various High Court in the country challenging the
detainment."11 Most of the high court gave their judgement in favour of these petitions
which compelled Indira Gandhi Government to approach Supreme Court for this issue
and which became Additional District Magistrate Jabalpur V. Shivkant Shukla. It is
also called the Habeas Corpus (To Produce the Body) Case because usually, this is a writ
filed in a supreme court when someone is arrested. At the time when Emergency was
proclaimed, this writ was not considered as a fundamental right under article 21 remained
suspended.[3]

1.2.2 Judgment
By a Majority decision of the constitutional bench consisting of five Judges, the Supreme
Court of India in the case of Additional District Magistrate, vs S. S. Shukla Etc.,[5] on 28
April, 1976, held that “In view of the Presidential order dated 27 June 1975 no person has
any locus standi to move any writ petition under Article 226 before a High Court for
habeas corpus or any other writ or order or direction to challenge the legality of an, order
of detention on the ground that the order is not under or in compliance with the Act or is
illegal or is vitiated by mala-fides factual or legal or is based on extraneous
consideration.” Section 16A(9) of the Maintenance of Internal Security Act is
constitutionally valid; the bench headed by the then Chief Justice of India, Justice A.N.
Ray, along with Justices M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati, delivered the
Majority Ruling, whereas the fifth Judge, Justice H R Khanna, however wrote a
dissenting judgment.

11
(––), "Supreme court of India on law of Preventive Detention 1950 till date", 1999,
https://shodhganga.inflibnet.ac.in/bitstream/10603/61884/2/02_abstract.pdf.

13
The four judges said that the court has no authority or powers to challenge if the
detention made under sec 16A(9)b (which states no person against whom an order of
detention is made or purported to be made under Section 3 shall be entitled to the
communication or disclosure of any such ground, information or material as is referred to
in clause (a) or the production to him of any document containing such ground,
information or material) as under the act it clearly states that the grounds of the detention
need not be disclosed hence the court cannot question the state or the executive body to
validate the detention. Hence the party does not have locus standi to movie to any court
for maintain suit on fundamental rights.
Justice Khanna had dissenting opinion on the point that during proclamation of
emergency or presidential order under article 359(1) even if the person cannot go to the
court of law for the enforcement of fundamental right under the constitutional remedy
that does not restrain him from exercising his legal remedy through statute. Also, he
denied that article 21 is not the sole repository of right to life and personal liberty even in
absence of article 21 in the constitution the state cannot deprive a person from his right to
life and personal liberty as this formulates the basic postulate of a civilized society.
During the proclamation of emergency article 21 only loses the procedural power but the
substantive power of this article is very fundamental and the State does not have the
power to deprive any person life and liberty without the authority of law. The case of
A.D.M Jabalpur v. Shivakant Shukla is one of the landmark cases in the history , the
reason for that is, in this case, the courts refused to address and recognize the plights of
the citizens of India by completely neglecting the rights bestowed upon a person upon
birth.
Upon an examination of the particular judgment of ADM Jabalpur v. Shivkant Shukla,
one gets to know that there are different perceptions, opinions and views on the given
case. The Hon’ble Supreme Court for this situation watched that Article 21 covers Right
to Life and personal liberty against its unlawful dispossession by the State and if there
should arise an occurrence of suspension of Article 21 by Emergency under Article 359,
the Court can’t scrutinize the expert or lawfulness of such State’s choice. Article 358 is
significantly more extensive than the Article 359 because on one hand all the
fundamental rights are suspended as entire according to Article 358, but on the other

14
hand Article 359 does not suspend any rights. Notwithstanding being Emergency
arrangements under Article 359 (1) endow unique power and status on the Executive, it
doesn’t undermine the indispensable elements of the sovereignty of division of powers,
prompting to an arrangement of what is known to be a system of checks and balances and
constrained authority of the Executive. The nexus amongst State and Executive is flawed
and the impact of suspension of such rights will emerge in the form of additional energy
in the hands of the legislature which may formulate laws against the fundamental rights.
This act ought not be considered as a “power” of the Executive or right of it. There is a
legal and reasonable degree to which a State can act in or against the people and for this
situation, it was high abuse of powers of individual political profit of a particular
individual. Amid Emergency, it is nowhere talked about that the authority of State
“increases” from its original control under Article 162. Additionally, the State just holds
the privilege to arrest if the supposed act falls under Section 3 of MISA and its each
condition is satisfied. In the event that any condition is unfulfilled then detention is past
the powers of State.
The verdict by the Supreme Court is said to be the greatest incorrect judgment till date.
The contradicting opinion of Justice Khanna still holds more substance than the majority
judgment including the then Chief Justice. The unjust objective of Indira Gandhi’s
government came to the surface when Justice Khanna asked the first troubling yet valid
question. “Life is also mentioned in Article 21 and would Government argument extend to
it also?” "There was no way out. Without even a tinge of hesitation, the counsel for the
government replied, ‘Even if life was taken away illegally, courts are helpless’.. Justice
Khanna exclusively relied on the judgment delivered in the case of Makkhan Singh v.
State of Punjab[7] in which he specified: “If in challenging the validity of his detention
order, the detenu is pleading any right outside the rights specified in the order, his right to
move any court in that behalf is not suspended, because it is outside Article 359(1) and
consequently outside the Presidential order itself."12 Let us take a case where a detenu has
been detained in violation of the mandatory provisions of the Act. In such a case, it may
be open to the detenu to contend that his detention is illegal for the reason that the

12
Dr. Amit Kumar Ishwarbhai Parmar, "Right of Arrested Person under the Indian Constitution", Global
Journal of advanced research, vol-2, issue-9 pp. 1425-1435

15
mandatory provisions of the Act have been contravened. Such a plea is outside Article
359(1) and tile right of the detenu to move for his release on such a ground cannot be
affected by the Presidential order”. Curtailment of Article 21 would in general terms
mean that there occurs deprivation of right to life and personal liberty, which is against
the fundamental right ensured to every citizen of India since birth, along with the Articles
of Universal Declaration of Human Rights, India is a part of which.

1.2.3 Aftermath of the Judgment

In a little while after the period of Emergency and all things which were done for it were
rejected by in 1977, the Supreme Court in Maneka Gandhi v. Union of India[9] changed
the position and gave fundamental character to the right in Article 21 by instituting a
connection between Articles 14, 19 and 21 of the Constitution which was repudiated in
the case of A.K. Gopalan v. State of Madra[10] specifically with respect to Articles 19
and 21. Both these Articles cannot be split apart and not exclusive of each other. It was
further put forward that the very objective of the Presidential order under Article 359 was
to curb legal problems and that it was simpler to make laws against fundamental rights.
The responsibility of the government to act according to the rules laid down by law and
suspension of Article 21 did not by default demand the adjournment of rule of law.
These orders establish a temporary prohibition on any and each judicial enquiry into
legitimacy of an order denying somebody of his freedom and liberty, regardless of how it
began whether from an order coordinating the detainment or from an order setting out the
state of his arrest. Most part of the opinions seen in the Shivkant Shukla case has been
totally negated by 44th Amendment of the Constitution and also legal elucidation and
along these lines, it is not any more longer a law. Presently the implementation of Article
20 and 21 can’t be suspended in any circumstance and the Court watched that Article 21
ties the official as well as the assembly and subsequently amending Justice Khanna’s
position that suspension of Article 21 calms the lawmaking body of its imperatives
however not the official which can never deny a man of his life and freedom without the
expert of law and such confinement can be tested on grounds demonstrated in Makhan
Singh Case.

16
1.3 Conclusion
Man was born free and was left free by the Creator in this world. Therefore, right to
personal liberty is the birth right of a man and this right should be free from any sort of
restraint and coercion. Preventive Detention, as peacetime measure, is in itself an
abhorrent power and it is quite unreasonable to resort to such measures for administrative
convenience. "Preventive Detention as enshrined under Article 22 strikes a devastating
blow to personal liberties. It is therefore clear that preventive detention is harmful to a
secular democracy like India as it is extremely prejudicial to personal liberty."13 As the
existing laws are more than sufficient to deal with any offence, the government must
seriously consider abolishing all preventive detention laws which have consistently
exposed not only the shabby investigative skills of the sponsoring authority, but also their
illogical and mechanical application by the detaining authority.
A person may be detained only on the basis of rule established by law and due process of
law if these rule are violated it means there is no law. Law may be challenged before the
Judiciary. Under Article 21 no person shall be detained from their personal liberty except
rule established by law. "A person shall be detained by the Rule which is Fair, Just and
reasonable. A person gets the right to life and personal liberty by birth if anyone violates
this right with wrongful intention; he will be liable or punished."14 Preventive detention
laws are an anticipatory measure and the object of preventive detention laws are not to
punish but to intercept to prevent the detent from doing something prejudicial to the state.
"Preventive detention in general, and the Indian case in particular, reveals a fundamental
weakness in international human rights law."15 Human rights regimes have not as yet
articulated principles that can accommodate the structural tension between the ideal of an
international legal order and the demands of effective domestic governance. This
deficiency often means that evaluation of controversial practices devolves into either bare
assertions of sovereignty by states or crude assertions of the primacy of international law
by international institutions and lawyers. Finding a "third way" will require fine-grained

13
Claire Macken*, " Preventive Detention and the Right of Personal Liberty and Security under the
International Covenant on Civil and Political Rights, 1966".
14
Ramon B Portorreal v Dominican Republic, Communication No. 188/1984, UN Doc. Supp. No 40
(A/43/40) 207 (1988), referred to in Joseph, Schultz and Castan, above n 17, 231.
15
Mbenge v Zaire, Communication No.16/1977, UN Doc. Supp.No 40 (A/38/40) 134 (1983) [20].

17
comparative legal work that takes seriously both the proffered rationales for state
practices and the deficiencies of international standards.

The law of preventive detention is authorized by our constitution presumably because it

was foreseen by constitution makers that there may arise occasions in life of the nation
"when the need to prevent citizens from acting in ways which unlawfully subvert or
disrupt the basis of an established order may outweigh the claims of personal liberty.
Humans were born free and was left free by the Creator in this world. Therefore, right to
personal liberty is the birth right of a human and this right should be free from any sort of
restraint and coercion."16 However, this does not mean that a person can go to any extent
affecting the rights of others. Thus, he is free to the extent the rights of others are not
infringed. Therefore, to protect the rights of others from being violated, the State can play
its part and can make laws for preventively detaining a person before he can indulge in
such activities that are prejudicial to the maintenance of public order and security of
State. It is very tuff to define preventive detention because the word preventive detention
is very confusing.
Preventive Detention laws are repugnant to any democracy and is not found to exist in
democratic countries of the world. It is resorted only during war time in England but
nowhere in the world has this formed an integral part of the Constitution, as in the case of
India. Preventive Detention, as peacetime measure, is in itself an abhorrent power and it
is quite unreasonable to resort to such measures for administrative convenience.
Preventive Detention as enshrined under Article 22 strikes a devastating blow to personal
liberties. It is therefore clear that preventive detention is harmful to a secular democracy
like India as it is extremely prejudicial to personal liberty. "As the existing laws are more
than sufficient to deal with any offence, the government must seriously consider
abolishing all preventive detention laws which have consistently exposed not only the
shabby investigative skills of the sponsoring authority, but also their illogical and
mechanical application by the detaining authority."17

16
Helena Cook, 'Preventive Detention - International Standards and the Protection of the Individual' in
Stanislaw Frankowski and Dinah Shelton (eds), Preventive Detention: A Comparative and International
Law Perspective (1992) , 25.
17
Stephen Bailey, 'Rights in the Administration of Justice' in David Harris and Sarah Joseph (eds), The
International Covenant on Civil and Political Rights and United Kingdom Law (1995).

18
1.3.1 Suggestions
The Government should take an initiative to hold awareness programmes through various
means of communication like print and electronic media, public meetings and other
suitable means, to make people informed about the detention law and the repercussions
thereof, so that the people cannot indulge in such activities which may lead them in
trouble. The Public Safety Act, 1978 should be amended to accommodate provisions
imposing severe punishments on the detaining authority who failed to upheld the
safeguards laid down in Art. 22(5) of the Constitution of India.
The area of preventive detention is very much administrative-ridden. The law of
preventive detention has been so designed as to leave very broad discretion with
administrative authorities to order preventive detention of a person, and leave only a
narrow margin for judicial review. However, the courts have been conscious of the fact
that preventive detention affects one of the most cherished rights of a human being i.e.,
personal liberty. It is the time that the Parliament must analyse the validity of these laws
on the anvil of Constitutionality and make necessary amendments to its provisions to
safeguard the liberty of the individual. The preventive detention law should be more
humane and must respect the human rights.18

18
Sharma Harshit, “Preventive Detention: An Evil,” Journal on Contemporary Issues of Law, VOL.3
ISSUE 11, http://jcil.lsyndicate.com/wp-content/uploads/2017/11/Harshit-Sharma.pdf.

19
 REFERENCES
Bibligraphy

1.Derek P. Jinks, " The Anatomy of an Institutionalized Emergency: Preventive Detention

and Personal Liberty in India", Welbern Publishers, USA, 1997

2.I. P. Massey, "Administrative law", Eastern Book Co., New Delhi, 2017

3. C. K. Takwani , " Lectures on Administrative Law " Eastern Book Co., New Delhi,
2016

Articles:

1.C.M. Jariwala*, " Preventive Detention in India: Experiences and some Suggested
Reforms", 1999,
http://14.139.60.114:8080/jspui/bitstream/123456789/735/21/preventive%20detention
%20in%20india.pdf.

2.Shivangi Gangawar, " Due Process v. Procedure established by Law: Constitutional

Perspective", 2016,
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=981fc484-d07b-
4dd4-8a13-f24b15eac4b2&txtsearch=Subject:%20Constitution.

3.David H. Bayley, " The Indian Experience with Preventive Detention", Pacific Affairs,
University of British Columbia ,Pacific Affairs, Vol. 35, No. 2 (Summer, 1962), pp. 99-
115, https://www.jstor.org/stable/2753245

4.A. G. Noorani, " Preventive Detention in India", Economic and Political Weekly,
Vol. 26, No. 46 (Nov. 16, 1991), p. 2608, https://www.jstor.org/stable/4398297.

5.Rinat Kitai-Sangero, "The Limits of Preventive Detention", 2009,

http://14.139.60.114:8080/jspui/bitstream/123456789/735/21/Preventive%20Detention
%20in%20India.pdf.

6.Stella Burch Elias*, "Rethinking “Preventive Detention” from a comparative

perspective: Three Frameworks for detaining terrorist suspects",
https://pdfs.semanticscholar.org/5b41/6f5865eb34db99c2c2f3370d2b762ffb1461.pdf.

7.Rajesh Kumar, " Preventive Detention and the Right of Personal Liberty in India: A
Critical Study", International Journal of Socio Legal analysis and Rural Development
volume 3 issue.

20
8.Kimberly Kessler Ferzan, " Preventive Justice and the Presumption of Innocence", 11
Dec 2012, University of Virginia, School of
Law,https://papers.ssrn.com/sol3/papers.cfm?abstract_id=218797

9.(––), "Supreme court of India on law of Preventive Detention 1950 till date", 1999,
https://shodhganga.inflibnet.ac.in/bitstream/10603/61884/2/02_abstract.pdf.

10. Dr. Amit Kumar Ishwarbhai Parmar, "Right of Arrested Person under the
Indian Constitution", Global Journal of advanced research, vol-2, issue-9 pp. 1425-
1435

11. Dr. Amit Kumar Ishwarbhai Parmar, "Right of Arrested Person under the
Indian Constitution", Global Journal of advanced research, vol-2, issue-9 pp. 1425-
1435

12. Helena Cook, 'Preventive Detention - International Standards and the Protection
of the Individual' in Stanislaw Frankowski and Dinah Shelton (eds), Preventive
Detention: A Comparative and International Law Perspective (1992) , 25.
13. Stephen Bailey, 'Rights in the Administration of Justice' in David Harris and
Sarah Joseph (eds), The International Covenant on Civil and Political Rights and
United Kingdom Law (1995).

14. Sharma Harshit, “Preventive Detention: An Evil,” Journal on Contemporary

Issues of Law, VOL.3 ISSUE 11, http://jcil.lsyndicate.com/wp-
content/uploads/2017/11/Harshit-Sharma.pdf.

21