Longish Term Paper -II

On

“IMPACT OF JUDICIAL PRECEDENT IN THE AREA OF FREEDOM

OF SPEECH AND EXPRESSION”

Submitted by

MR. ANKUR AGRAWAL

1st year LL.M.

Guide

(ASSISTANT PROFESSOR)

Post Graduation Teaching Department of Law

(Semester II - March, 2011)

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 DECLARATION

I hereby declare that the Languish Term Paper-2 entitled “IMPACT OF JUDICIAL
PRECEDENT IN THE AREA OF FREEDOM OF SPEECH AND EXPRESSION.” submitted
by me is the record of work carried out by me during semester-II of the First Year LL.M,
Course for the academic year 2010-11 under the guidance of and has not
formed the basis for the award of any degree, diploma, associate ship, fellowship, title in this
or any other University or other institution of Higher Learning. I further declare that the
material of this L.P.T. is my original work and I have not copied anything from any report of
this nature. The material obtained from other sources has been acknowledged in this
research work.

Place: PUNE (MR. ANKUR AGRAWAL)

Date:

2
 CERTIFICATE

This is to certify that the Longish Term Paper-2 entitled “IMPACT OF JUDICIAL
PRECEDENT IN THE AREA OF FREEDOM OF SPEECH AND EXPRESSION” Submitted
by MR. ANKUR AGRAWAL is the record of work carried out during semester-II of First Year
LL.M. Course for the academic year 2010-2011 under my supervision and guidance in
conformity with the syllabus prescribed by University of Pune.

Place: PUNE.

Date: GUIDE

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 ACKNOWLEDGEMENT

Firstly, I would like to thank my Principal Mr. Rashid Shaikh for giving an opportunity to
undertake this research work and successfully accomplishing the same.

I would also like to thank my guide MISS SWATI and our H.O.D Dr. Payal Thaorey for
their valuable guidance and for being a solvency of inspiration and encouragement enabling
the researcher work and to complete the research work successful.

Last but not the least; the researcher would like to thank all the background supports who
have spent their valuable time to support me throughout my research work.

Place: PUNE (MR. ANKUR AGRAWAL)

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 ABBREVIATIONS USED

AIR All India Reporters.

SC Supreme Court.
V Versus.
Art. Article.
HC High Court.
Mah Maharashtra Cases.
CJ Chief Justice
FIR First Information Report.
SCC Supreme Court Cases

TITLE

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IMPACT OF JUDICIAL PRECEDENT IN
THE AREA OF FREEDOM OF SPEECH
AND EXPRESSION”

PREVENTIVE DETENTION UNDER THE CONSTITUTION IN INDIA: A

CRITICAL STUDY

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 TABLE OF CONTENTS

CHAPTER 1
INTRODUCTION
• Introduction
• Significance
• Statement of the Problem
• Objectives
• Hypothesis
• Research and Methodology
CHAPTER 2
CONCEPT AND DEFINITION OF PREVENTIVE DETENTION
• Concept
• Definition
CHAPTER 3
PREVENTIVE DETENTION – GLOBAL STAND
• US
• Costa Rica
• Australia
• Denmark
• New Zealand
• Germany
CHAPTER 4
HISTORICAL BACKGROUND OF PREVENTIVE DETENTION IN INDIA
CHAPTER 5
PREVENTIVE DETENTION PROVISIONS UNDER VARIOUS INDIAN LAWS

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 1.1 Concept of preventive detention
1.2 Preventive detention in other countries
1.3 History and historical background of preventive detention in India
1.4 Preventive detention in Indian context
1.5 Preventive detention and its relation with Art. 14, 19, 21, 32 and 226
1.6 Safeguards of Preventive Detention
1.7 Procedure of Advisory Boards
1.8 Emergency of 1975 and Habeas Corpus Case
6.9 Judicial Review of Preventive Detention
6.10 Comparison with other nations

2. Criticism and Suggestions

9. Conclusion
CHAPTER 1
INTRODUCTION

1) INTRODUCTION

Preventive Detention means detention of a person without trial and conviction by a court, but
merely on suspicion in the mind of an executive authority. Preventive detention is
fundamentally and qualitatively different from imprisonment after trail and conviction in a
criminal court. Preventive detention and prosecution for an offence are not the synonymous.

In conviction, the accused is sought to be punished for a past act. The offence has to be
proved in the court beyond the 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
for committing an undesirable act in future. The idea is not to punish him for his past acts. In
preventive detention past act is merely the material for inference about the future course of
probable conduct on the past of detenu.

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In India, preventive detention can be extended for only three months. After three months,
such a case is brought before an advisory board for review. In India, this is given in the
Constitution of India under Right to Freedom, a Fundamental Right. Preventive detention is
explained in the Art. 22 especially clauses (4) to (7) of the Indian Constitution.

2) SIGNIFICANCE:

The topic is of great significance. The topic of Preventive Detention is included in the Union
list as well as in the Concurrent list. As very few nations including India provides this right,
there has been constant debates upon it saying that it violates the personal liberty and various
fundamental rights given to a individual in the Indian Constitution. So the study of it will
help us to lead to the proper answer to these questions.

3) STATEMENT OF THE PROBLEM:

a. What is Preventive Detention?

b. What is History and background of Preventive Detention?
c. The Concept of Preventive Detention and its application in foreign countries
d. How Preventive Detention is applied in India?
e. Does Preventive Detention violates Art. 14, 19, 21, 32 and 226?

4) OBJECTIVES:

The basic objective behind the study of this topic is to study the provisions of preventive
detention given in the Constitution of India as well as preventive detention given in the
various other Acts like the Code of Criminal Procedure, Preventive Detention Act, 1950 etc.
and to find that how it is not violative of the Indian Constitution.

5) HYPOTHESIS:

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In Preventive Detention, a person is detained without trial in the subjective satisfaction of the
executive to prevent him for committing an undesirable act in future. The idea is not to
punish him for his past acts. In preventive detention past act is merely the material for
inference about the future course of probable conduct on the past of detenu.

6) RESEARCH AND METHODOLOGY:

The various books as well as various articles are referred for this topic. The sources from
which the material for this research collected are secondary. So the methodology used in the
research has been Doctrinal.

CHAPTER 2
CONCEPT AND DEFINITION OF PREVENTIVE DETENTION:

Concept:

Preventive detention is an imprisonment that is not imposed as the punishment for a crime,
but in order to prevent a person from committing a crime, if that person is deemed likely to
commit a crime.

In most democracies, no one can be arrested without being told the grounds for such an
arrest, except under rare and special circumstances (usually anti-terrorism legislation). An
arrested citizen has certain rights: He/she must be subject to and informed of a criminal
charge and brought before the nearest magistrate within a certain amount of time, and has the
right to defend himself by a lawyer of his choice. Depending on the laws, this lawyer can be
called for as soon as the detention starts, or sometimes days or weeks later.

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In contrast to this, under preventive detention the government can imprison a person for
some time without a criminal charge. It means that if the government feels that a person
being at liberty can be a threat to the law and order or the unity and integrity of the nation, it
can detain or arrest that person to prevent him from doing this possible harm. Some
jurisdictions allow preventive detention only in specific cases, for example only for persons
who have already been sentenced for a serious crime.

A related, but different form of detention is detention of suspects. In contrast to preventive

detention, detention of suspects must quickly be followed by a criminal charge (or happen
after the charge).

In most jurisdictions, people suffering from serious mental illness may be subject to
involuntary commitment under mental health legislation. This is undertaken on health
grounds or in order to protect the person or others. It does not strictly speaking constitute a
form of preventive detention, because the person is detained for treatment and released once
this has proved effective.

Definition:

There is no authoritative definition of the term “Preventive Detention” in Indian law. The
expression had its origin in the language used by the Law Lords in England while explaining
nature of Detention under regulation 14-B, Defence of Realm Act, 1914, passed on the
outcome of First World War and the same language was repeated in the connection with
emergency regulations made during Second World War. The word “Preventive” is used in
contradiction to the word “punitive”. In a case R. v/s Halliday, Lord Finely said that “it is not
a punitive but preventive measure”. Preventive detention differs from the ordinary or
punitive detention both in respect of its purpose and its jurisdiction. The object of preventive
detention is not to punish a person for having done something but to intercept him before he
does it and to prevent him from doing it. No offence is proved or any charge formulated. The
jurisdiction of such detention is suspicion or reasonable probability of the impending
commission of the prejudicial act and not criminal conviction which can only be warranted
by legal evidence.

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CHAPTER 3
PREVENTIVE DETENTION – GLOBAL STAND

United States

In the United States, the Sixth Amendment to the United States Constitution guarantees the
right to "a speedy and public trial". Thus, arrested persons may not be held for extended
periods of time without trial.

In late June 2009, United States President Barack Obama was reported to have been
considering indefinite preventive detention for some Guantanamo captives.

Australia

In Australia the legislation differs depending on the state, but the bulk of the preventive
detention laws have been aimed at dangerous sex offenders. Some academics argue that this
is fair, because of the dangerous offender's prior fault.

Costa Rica

The Republic of Costa Rica, where the 1998 Criminal Proceedings Code allows for a normal
"preventive" imprisonment of 12 months if the person is considered a "flight risk", but if the
case is declared "complex", it can be increased to up to three years and a half of
imprisonment without conviction, or even more in some cases. In fact, in Costa Rica, as of
2006, over 4,000 people were serving terms of preventive detention.

Denmark

The police can detain people for 6 hours without involving the courts or pay compensation
for wrongful arrest.[4] In relation to the ongoing gang war in Copenhagen between the biker
gangs and second generation youth gangs it has been suggested to extend the 6 hour limit to

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several weeks.[5] Before the Copenhagen Climate Council a new set of emergency laws was
introduced allowing the police to detain people for up to 12 hours without charging them for
a crime.[6] Critics fear that they will remain as permanent laws when the summit is over [7].

New Zealand

In New Zealand, "preventive detention" is an indeterminate life sentence, and is handed

down to individuals convicted of violent and/or sexual crimes (such as sociopathic
murderers, serial rapists or recidivist pedophiles) where it is likely that the offender will
reoffend if released. Such individuals will only receive parole if they can demonstrate they
no longer pose a threat to the community. In October 2010, a total of 253 prisoners in New
Zealand were serving terms of preventive detention.

Preventive detention has a minimum non-parole period of five years in prison, but the
sentencing judge can extend this if they believe that the prisoner's history warrants it.

The longest non-parole period on a sentence of preventive detention is one of 26 years, being
served by sadistic killer Graeme William Burton, who shot dead two people and injured four
others between 1992-2007.

Germany

In Germany, "Preventive Detention" (German: Sicherungsverwahrung, §66, §106

Strafgesetzbuch) has a similar meaning to that in New Zealand. The sentence has to be
imposed by a judge, and it is handed down to individuals who are considered a danger to
public safety and who have already committed crimes. It is an indeterminate life sentence
that follows a regular jail sentence. To assure the suitability of the preventive detention, it has
to be reviewed every two years to determine the ongoing threat posed by the individual.
Preventive detention is typically served in regular prisons, though separated from regular
prisoners and with certain privileges.

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CHAPTER 4
HISTORICAL BACKGROUND OF PREVENTIVE DETENTION IN INDIA:

Although the history of preventive detention pre-dates the constitution and can be traced
back to the Bengal State Prisoners Regulation, 1818, ever since 1950, the Centre has been
having preventive detention laws except for two brief gaps, between January 1910 and May
1971 and then from March 1977 till September 1980. In September 1980, the president
promulgated the National Security Ordinance, 1980 which ultimately became the National
Security Act, 1980. In addition to that there are other Central and State laws which provide
for preventive detention.

Preventive detention was explained in Defence of India Act, 1915 by British for the first
time. The Defence of India Act 1915 , also referred to as the Defence of India Regulations
Act, was an Emergency Criminal Law enacted by the British Raj in India in 1915 with the
intention of curtailing the nationalist and revolutionary activities during and in the aftermath
of World War I. It would later be applied during the First Lahore Conspiracy trial in the
aftermath of the failed Ghadar Conspiracy of 1915. The Act, after the end of World War I,
formed the basis of the Rowlatt Act.

In 1939, the Viceroy Lord Linlithgow declared war on behalf of India on Germany and Italy
as the British were themselves at war with the Axis Powers. As the Viceroy had not
consulted the Indian Nationalist leaders and the Elected Legislative assemblies of the
Provinces for their opinion, the Indian leaders resigned their posts. After this incident, the
British Parliament enacted the Defence of India Rules 1939, by which anybody could be
detained and no reason or evidence was needed to be furnished for such detention. This Act
was extensively applied during the period of the Quit India Movement which began in 1942.
The Act was then repealed at the end of the War.

After Independence, the Parliament of India enacted the Preventive Detention Act, 1950. The
Act ceased to have effect on the 31st December, 1969 as it was repealed. At the time of

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emergency former Prime Minister of India Indira Gandhi took the help of MISA and Defence
of India Act 1915 for making Preventive Detentions. But after the emergency was over and
the Janata Party came to power, the President promulgated the National Security Ordinance,
1980 which ultimately became the National Security Act, 1980.

CHAPTER 5

PREVENTIVE DETENTION PROVISIONS UNDER VARIOUS INDIAN LAWS:

1. THE CONSTITUTION OF INDIA

Art. 22 of the Indian Constitution explains the protection of the arrest from oppression and
abuse by the police and other enforcement officers.
Clauses (1) and (2) Of Art. 22 ensures the following four safeguards for a person who is
arrested:
1) He is not be detained in custody without being informed, as soon as may be, of the
grounds of his arrest.
2) He shall not be denied the right to consult and to be defended by a legal practitioner
of his choice.
3) A person arrested and detained in custody is to be produced before the nearest
magistrate within a period of twenty- four hours of his arrest excluding the time
necessary for the journey from the place of arrest to the magistrate’s court.
4) No such person is to be detained in the custody beyond this period without the
authority of a magistrate.

There are two exceptions to these four rules:

1) Enemy aliens,
2) Persons arrested or detained under a law providing for preventive detention.

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So preventive detention is one of the exceptions to the Art. 22.

In India, Preventive Detention can only be extended for three months. After three months,
such a case is brought before an advisory board for review. In India, this is given in the
Constitution of India under Right to Freedom, a Fundamental Right. Preventive Detention is
included in Art. 22 of the Indian Constitution. Clause (4) to (7) of Art. 22 relate to Preventive
Detention. If we look at the Lists distributing legislative powers between State and the
Union, we find that the subject of preventive detention is mentioned in the Union list as well
as in the Concurrent List. Both the Centre and the States are free to have their own laws
expect that in the case of conflict, it is the Central Law that will prevail. However, the
center’s ambit is larger than that of the States as the Centre can have a preventive detention
law for reasons connected with defense, foreign affairs and security of India by virtue of
Entry 9 of List I, in addition to security of a State, the maintenance of public order or of
supplies and services essential to the community by virtue of Entry 3 of List III.

Though India is one of the very few nations which provide Preventive Detention during
peace time also, many other nations including United States, take it as a violation of Personal
Liberty.

The Anti-Terrorism Act, 2005 passed by the Australian Parliament also does not provide the
power of Preventive Detention to the Australian Government. It is stated by Australian
Security Intelligence Organisation (ASIO); that detaining or interrogating an individual in
almost all circumstances is a crime.

In view of the new direction given to the Right to Life and Personal Liberty since Maneka
Gandhi v/s Union of India as well as the concern shown to that right in the Forty-fourth
Amendment making enforcement of Articles 20 and 21 non-suspendable even during a
Proclamation of Emergency and by amending clauses (4) and (7) of Article 22, a major
attack was launched against the National Security Act, 1980 and the practice of Preventive
Detention in A. K. Roy v/s Union of India. Among the various grounds of attack some were
of a preliminary nature. For Example, the nature of ordinance making power and the power

16
to bring an amendment of the Constitution into effect. The Court decided that an ordinance is
as much a law as an Act and that the power expressly vested in the executive to bring an
amendment of the Constitution into effect at its discretion, does not violate any constitutional
provision or principle and the courts cannot compel the executive to bring an amendment of
the Constitution into force. Thus the Amended clauses (4) and (7) of Article 22, which could
take effect only in a notification from the Central Government and if such notification is not
issued by the Central Government, it remains inoperative. One of the major substantive
arguments that the Act of 1980 and the concept of Preventive Detention in general was
violative of the just and fair procedure as has emerged through the relationship of Articles of
14, 19 and 21, was negatived by the court on the ground that though the Preventive Detention
laws have to satisfy the requirements of Articles 14, 19 and 21, they can not be
unconstitutionalised per se so long as Article 22 and the legislative entries expressly sanction
them. Several other grounds of attack related to the specific provisions of the Act on the
ground of their inconsistency with either Article 21 or 22. But all these provisions were
upheld subject to some clarifications in respect of some of them.

2. Preventive Detention as under the Code of Criminal Procedure, 1973:

The two sections from the Code of Criminal Procedure, when read together give the police
the power of preventive detention. Preventive detention, a method solely reserved by the
government to detain an individual, withholding his/her freedom, without the prior awareness
of the courts about the matter, is always seen as an indicator of autocracy, the degree of
which depends on the extent to which an individual’s right are repressed without the
participation of the judiciary. Thus on the basis of this, a proper liberal democracy would
have minimal preventive detention measures available for the government. The Indian
government for instance has through legislation passed several acts on central as well as the
17
state level giving the powers of preventive detention in special cases, besides the sections
provided in the CrPC. These laws namely Prevention of Terrorism Act, 2002 (POTA), a
successor of Terrorist and Disruptive Activities (Prevention) Act (TADA) were brought up
time and again to give boost to the government at fighting terrorism by providing it
extraordinary powers like detention of an individual up to 180 days without filing of charges
in the courts. These laws being controversial, as they were suspected to be tools of political
vendetta are soon to be scraped. Repealing POTA is under way for now, and it is clear that
the government is finding new ways of fighting terrorism through less harsh and direct
means. Looking at any law prima-facie would not give a proper indication of the
implementation of it in the practical world by less legally literate police personnel. As in the
cases of section 107 read with section 151 of the Cr.P.C, we see that the legislation gives the
police only 24 hours to detain an individual without filing charges in the courts. These
charges should be those of a cognizable offence and the individual must be shown before the
Executive Magistrate under whose jurisdiction the individual was arrested from or the
individual is from. The executive magistrate then may let the individual out on bail, if the
matter is not as serious or may send the individual to judicial custody. The legislation thus
has many checks on any apparent misuse by the police. However, the application of these
laws is quite different, where we have the police not understanding the spirit of the
legislation and detaining individuals for minor complaints where they pose no future threat to
the peace of the society. The police also due to the ambiguous language of these provisions
find it as an easier route to detain individuals for harassment or for imprisoning individuals
who have committed cognizable offences under other acts, like NDPS Act. In order to file a
report more conveniently the police, rather then charge an individual under an act like NDPS,
which is a cumbersome process for them as it includes collecting evidence and investigating,
goes instead for these provisions, which are easier to report. The Special Executive
Magistrate, an officer of the rank of Additional Commissioner of Police (ACP), acts as the
Executive Magistrate as provided in the provision to safeguard the individual’s rights, and
the detainee is shown before him within 24 hours. This is the stage, which the legislation
provides to check further wrongful detention of an individual. Here the Magistrate is to check
the charges and whether further detention of the detainee is required. Here again due to lack
of proper legal awareness and a laissez-faire attitude, the magistrate may not check charges,

18
as often they do not amount to cognizable offences by any chance or may even send the
bail’s surety for verification even when they have proper ID, and thus the detainee comes
into judicial custody wrongfully. Thus it is evident that though the spirit of the legislation is
right, the implementation is not done in the fair spirit. Amendment of the provisions may
give only temporary relief as it is more to do with the attitude of the law enforcement
agencies, as in the case of TADA or POTA, which were used more in cases of political
vendetta than for prevention of terrorism. The law enforcement agencies should be sensitized
and given the right education so that they do not use these provisions improperly. Therefore
it will be right to conclude taking these provisions as an example, that merely legislating does
not give a solution to a problem, it is the execution that matters most. As preventive detention
being misused is major resource wastage for the law enforcement agencies, if restricted it
may help manage resources more aptly.

3. Preventive Detention as given in other Acts:

Preventive detention was firstly introduced by the British government in the Defence of India
Act, 1915. Section 3 of the National Security Act, 1980 provides power of preventive
detention to the Central or state Govt. The Act also explains various provisions relating to it
like when a Central or state govt. can detain a person, execution of such detention orders,
powers of central or state Govt. in relation to the absconding persons, Constitution of
advisory boards, procedure of Advisory Boards, protection of actions taken in good faith,
temporary release of the person detained etc.

The National Security Act, 1980 is an act of the Indian Parliament whose purpose is to
provide preventive detention in certain cases and for matters connected therewith. The act
extends to the whole of India except the State of Jammu and Kashmir. This act empowers the
Central Government and State Governments to detain a person to prevent him/her from
acting in any manner prejudicial to the security of India, the relations of India with foreign
countries, the maintenance of public order, or the maintenance of supplies and services
essential to the community it is necessary so to do. The act also gives power to the

19
governments to detain a foreigner in a view to regulate his presence or expel from the
country.

4. Preventive detention in relation to Art. 14, 19, 21, 32 and 226:

It has been constantly debated that the preventive detention is voilative of Art. 14, 21, 32 and
226. But it is not true because the Constitution of India and also the the various laws which
deals with the preventive detention provides various safeguards so that the power of
preventive detention is not misused. E.g. National security Act 1980 has made a provision for
appointment of advisory Board etc. So it can be said that preventive detention does not
violate the rights of individuals given by Art. 14, 19, 21, 32 and 226. and the Supreme Court
of India also has made it clear from time to time in its various judgments in that regard.

CHAPTER 6

SAFEGUARDS OF PREVENTIVE DETENTION:

Various safeguards provided to the detenus under clauses (4) to (7) of Article 22 may be
discussed under the following heads. In considering these safeguards, we have to bear in
mind what has been said in the beginning of our discussion on this article as well as what has
been said just above with reference to A.K. Roy case that the safeguards provided in clauses
(4) to (7) do not exclude the safeguards provided under other fundamental rights and are
specifically influenced by Articles 14, 19 and 21.

Review by Advisory Board-

To provide safeguards against arbitrary detention, clause (4) of Article 22 states that no law
providing for preventive detention shall provide detention of a person for a longer period
than three months unless an Advisory Board constituted by persons who are or have been or
are qualified to be High Court judges has reported before the expiration of the said period of
three months that there is, in its opinion, sufficient cause for such detention. If the Advisory
Board reports that the detention is not justified, the Government is duty bound to revoke the

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detention order.(foot note- Shaibban Lal Saksena v. State of U.P., Air 1954 Sc 179) It is no
business of Advisory Board to express any opinion as to how much longer than three months
the person should be kept it detention. The expression ‘such detention’ in Article 22(4)(a)
refers to preventive detention and not how long the person is to be detained. It is clear from
clauses (4) and (7) of Article 22 that the policy of Article 22 is, except where there is a
Central Act to the Contrary passed under clause (7) (a), to permit detention for a period of
three months only, and detention in excess of that period is permissible only in those cases
where an Advisory Board, set up under the relevant statute, has reported the sufficient cause
for such detention.

In A. K. Gopalan v/s State of Madras [foot note- AIR 1950 SC 27], the majority held that the
word “and” in Article 22(7) (a) meant in the context ‘or’ which meant that it was enough if
Parliament, under Article 22(7) (a), prescribed either the circumstances or the classes of
cases in which a person might be detained for a period longer than three months without
reference of Advisory Board. This meant that clauses (4) and (7) of Article 22 provide for
two powers which are alternative or independent: i) to make a law providing for a longer
detention without an Advisory Board and ii) to make a law providing for a longer detention
without an Advisory Board.

This view was rejected by the Supreme Court in Shambhu Nath Sarkar v/s State of West
Bengal [foot note- AIR 1973 SC 1425]. It was observed that if the theory pf independent
alternative power is accepted, clause (4) (a) would be totally nullified by clause (4)(b) read
with clause (7) (a); such a construction would mean that though the Constitution makers laid
down a safeguard against a law providing for a longer duration, they, in the very same breath,
nullified that safeguard by generally empowering Parliament to enact laws with longer period
of detention without the intercession of an Advisory Board. The language of clauses (4) and
(7) does not bear out such a construction. Moreover, the construction under which clause (4)
(b) read with clause (7) lays down an exception to clause (4) (a) harmonises both the clauses
and bring out the true intention in enacting the two clauses.

In State of West Bengal v/s Ashok Dey [foot note- AIR 1972 SC 1660], it was argued that
since clause (7) authorizes only Parliament to make a law for preventive detention for a

21
period longer than three months, a State Legislature in competent to make a law subject to
such limitations as have been specified in Article 22. If a State Legislature was intended by
the Constitution to function under a limitation in respect of the period of detention, such
expression would have been given expressly in the Article 22 by the makers of the
Constitution. The only limitation imposed by clause (4) of Article 22 is that no law providing
for the preventive detention should authorize such detention for over three months without
the permission of the advisory board.

In Fagu Shaw v. State of West Bengal [foot note- AIR 1974 SC 613], the question arose
whether Parliament is bound to prescribe the maximum period of detention under Article
22(7) (b) in order that the proviso to Article (4) (a) might operate. The Supreme Court held
that as Parliament and State Legislatures have power under Entry 3 of List III in Schedule
VII of the constitution to pass a law enabling the detention of a person for a longer period
than three months in case the law provides for the opinion of the Advisory Board, there could
be no limit to that period, reasonableness apart. The proviso in Article 22(4) (a) merely
enables Parliament to put a curb on that power by prescribing the maximum period of
detention under Article 22(7) (b). The proviso does not, proprio vigore, compel Parliament to
fix the maximum period.

So, the requirements of the Advisory Board can be dispensed in two cases: i) when the
detention is not to exceed the period of three months, and ii) under clause (4) (b) read with
clause (7) (a) and (b) of Article 22.

In Puranlal Lakhanlal v. Union of India [foot note- AIR 1958 SC 163], the Supreme Court
observed that the constitution evidently does not contemplate detention of a person for the
period of three or less as sufficiently serious to have the safeguard of a report by an Advisory
Board to the effect that there is sufficient causes for detention.

Grounds of Detention and Representations:

Clause (5) of Article 22 gives two rights to the detenu. First, he has the right to be
communicated the grounds on which the order of detention has been made against him and
that is to be done ‘as soon as may be’. [foot note-Durga Pada Ghosh v. State of W.B. 1972

22
(2) SCC 656/ AIR 1972 SC 2420] Communication here means inparting to the detenu
sufficient knowledge of all the grounds of detention which are in the nature of charges
against him. Thus, where the detenu did not know sufficient English to understand the
grounds communicated to him, it was held that there was no sufficient compliance with the
requirements laid down in the constitution. (foot note-Harikishan v. State of Maharashtra
AIR 1962 Sc 911). The grounds for making the order are the reasons on which the detaining
authority was satisfied that it was necessary to make the order. The grounds are conclusion of
the facts and not a complete detailed recital of facts. Grounds also include all materials on
which those conclusions are based. No part of such grounds can be held back nor can new
grounds be added thereto. (foot note- State of Bombay v. Atma Ram Sridhar Vaidya, AIR
1951 SC 157). The constitutional right of the detenu will equally be infringed where any of
the grounds supplied earlier is revoked by the detaining authority subsequently.

In Shibban Lal Saksena v. State of Uttar Pradesh the petitioner had been supplied with two
grounds of his detention. Subsequently, the detaining authority revoked one of the grounds. It
was contended that in these circumstances the detention is illegal and the petitioner is entitled
to be released. In reply, the state contended that the remaining ground was sufficient to
sustain the detention order. The Supreme Court held the detention invalid and observed as
follows:

“To say that the other ground, which still remains, is quite sufficient to sustain the order,
would be to substitute an objective judicial test for the subjective decision of the executive
authority which is against the legislative policy underlying the statute. In such cases, we
think, the position would be the same as if one of these grounds was irrelevant for the
purposes of the Act, or was wholly illusory and this would violate the detention order as a
whole”.

The other right which a detenu has been given is that he should be afforded the earlier
opportunity of making a representation against the order. But without getting information
sufficient to make a representation against the order of detention, it is not possible for detenu
to make representation. Hence the Supreme Court has held that the detenu should be
furnished with particulars of grounds of his detention sufficient to enable him to make a

23
representation which on being considered may give him relief. And any delay in supplying
these documents results in setting aside the detention. (foot note- M.M. Patel v. State of
Maharashtra AIR 1981SC 510).

Non-specification of the prejudicial activities in the detention order does not vitiate the order
so long as such particulars have been stated in the grounds of detention. It is pointed out in
the earlier paragraph that no new ground can be added to those supplied earlier. But
particulars as distinct from grounds may be supplied in subsequent communication, which
may be sent to the detenu sometime afterwards. (foot note- State of Bombay v. Atma Ram
Sridhar Vaidya). Also if the disclosure of any facts is against the public interest, the detaining
body may not disclose those facts. So the obligation to furnish particulars and the duty to
consider whether the discloser of any facts involved therein is against the public interest, are
vested in the detaining authority, not in any other body.

Vague grounds:

There is an obligation on the part of Government to furnish the grounds on which the order
of detention is based. This constitutional obligation is not discharged if the4 grounds which
are communicated to the detenu are vague. A ground will be vague when it does not enable
the detenu to make an effective representation against the order of detention. The question
whether grounds furnished are vague or not depends upon the facts and the circumstances of
each case. It has been pointed out by the Supreme Court in a case State of Bombay v/s Atma
Ram Sridhar Vaidya.

The Supreme Court in this case observed that “The contention that the grounds are vague
requires some clarification… If the ground which is supplied is incapable of being
understood or defined with sufficient certainty, it can be called vague. It is not possible to
state affirmatively more on the question of what is vague. It must vary according to the
circumstances of each case… If, on reading the ground furnished it is capable of being
inte4lligently understood, and is sufficiently definite to furnish materials to enable the
detained person to make a representation against the order of detention, it can not be called
vague.”

24
It follows that the constitutional right of the detenu would be if he is not supplied with
reasonably definite grounds. (foot note-Lawrence J. Joseph D’Souza v. State of Bombay,
AIR 1956 SC 531) Equally the grounds would be vague if the authority has not furnished the
detenu adequate particulars of the grounds of detention to enable a proper representation to
be made.(foot note-State of Bombay v. Atma Ram Sridhar Vaidya, AIR 1951 SC 157)

Public Order:

By the expression ‘Maintenance of public order’ what is intended is the prevention of grave
public disorder. It is not the same as maintenance of law and order. Maintenance of law and
order means the prevention of disorders of comparatively lesser gravity and of local
significance. The expressions ‘law and order’ and ‘public order’ and ‘security of the state’
are distinct concepts though not always separate. ‘Law and order’ represents the largest circle
within which is the next circle representing ‘ public order’ and the smallest circle represents
the ‘security of the state’

Irrelevant Grounds:

The grounds supplied to the detenu must not be irrelevant. If ther grounds are not relevant to
the object of the legislation the right of the detenu under clause (5) is violated. Thus if the
ground for detaining a person under the preventive Detention Act, 1950 is that he published a
defamatory pamphlet against a judge of the High Court the ground is irrelevant because the
Act does not authorize detention for contempt of court. (foot note- Sodhi Shamsher Singh v/s
State of Pepsu AIR 1954 SC 276)

Subjective Determination of the Executive:

It is the right of the executive to determine whether there is sufficient material for ordering a
man to be put under preventive detention. The test is subjective and the court would not
examine the decision of the detaining authority by applying an objective test. The whole
attitude of the court is stated in clear terms in the following observation of Mukherjea, J. in
case Maswood Alam v/s Union of India [foot note- AIR 1973 SC 897]:

25
“It has been held by this Court, on more occasions than one, that the propriety or the
reasonableness of the satisfaction of the Central or the State Government upon which an
order for detention under Section 3, Preventive Detention Act, 1950 is based, cannot be
raised in this Court and we can not be invited to undertake an investigation into the
sufficiency of the matters upon which such satisfaction purports to be grounded. We can.
However, examine the grounds disclosed by the Government to see if they are relevant to the
objects which the legislation has in view, namely, the prevention of objects prejudicial to the
defence of India or the security of the State and maintenance of law and order therein”.

The jurisdiction of preventive detention, sometimes described as jurisdiction of suspicion,

depends on subjective satisfaction of the detaining authority. This jurisdiction is thus
essentially different from that of judicial trails for the commission of offence and also from
preventive detention security proceedings in criminal courts, both of which proceed on
objective consideration of the necessary facts for judicial determination by courts of law and
justice and functioning according to the prescribed procedure. Thus preventive detention
cannot be considered mala fide even if the objectionable activities attract the provisions of
Chapter VIII of CrPC relating to security for keeping peace and for good behaviour provided
the authority concerned is satisfied of the necessity of the detention as contemplated by the
preventive detention law, that is, if the grounds are relevant and germane to the object of law.
[foot note- Masood Alam v. Union of India Air 1973 Sc 897]

Krishna Iyer, in Sadhu Roy v/s State of West Bengal [foot note- AIR 1975 SC 919], has
observed that the subjective satisfaction is real satisfaction and sham satisfaction is no
satisfaction. The jurisprudence of preventive detention without trial is not the vanishing point
of judicial review. The area and depth of probe, of course, is conditioned by the particular
law, its purpose and language. But our freedoms are not wholly free unless the judiciary has a
minimal look at their executive deprivation, even though under exceptional circumstances.
However the authority need not give reasons for rejecting the detenu’s representation.

The courts however, scrutinize whether the detention is for a purpose for which the Act
authorized it.

26
PROCEDURE OF ADVISORY BOARDS:

Power is given under clause (7) (c) to Parliament to prescribe the procedure to be followed
by an advisory board in an enquiry under sub-clause (a) of clause (4). The procedure laid
down in parliamentary legislation will override the procedure established by a State law. The
idea is to prevent, as far as possible, hazardous and unjust procedure being laid down under
State enactments. In addition to the procedure which Parliament may lay down, the courts
have evolved certain norms to be followed in respect of the proceedings before the Advisory
Boards.

It has been held in the case A.K. Roy v/s Union of India that an Advisory Board is not a
judicial or quasi judicial body and therefore it is not required to follow the required
procedure for such bodies.

The board is in fact in the nature of a body charged with the responsibility of advising the
executive in regard to cases of preventive detention where it is intended that such detention
will last for more than three months. Therefore, a detenu can not claim the right of cross-
examination in the proceedings before the Advisory Board. But right to a real and effective
personal hearing by the board to the detenu has been recognised in case the detention law
says that such hearing has to be given if the detenu so desires. This was held by Supreme
Court in Hamid Sarfaraz v/s M. S. Kashekar. [foot note- AIR 1981 SC 459] Moreover, in the
absence of any provision to the contrary, the detenu has the right to offer oral and
documentary evidence before the Advisory Board in order to rebut the allegations made
against him. It was held in the landmark judgment: A.K. Roy v/s Union of India.

The observation in Francis Coralie v/s Union Territory of Delhi [foot note- AIR 1981 SC
746, 751] that a detenu has the right to consult a legal advisor of his choice for any purpose
including his release from preventive detention has been left open by the Court in A.K. Roy
v/s Union of India without conformation or rejection. But it has been held that “if the
detaining authority or the Govt. takes the aid of legal practitioner or advisor before the
Advisory Board, the detenu must be allowed the facility of appearing before the Board

27
through a legal practitioner”. And denial of such facility invalidates detention. It was held in
Nand Lal v/s State of Punjab [foot note- AIR 1981 SC 2084]

It has further been held in landmark judgment of A.K. Roy v/s Union of India that the detenu
is entitled to be aided or assisted, if he so demands, “by a friend, who in truth and substance,
is not a legal practitioner” in the proceedings before the Board. Denial of such facility to the
detenu invalidates his detention.

But the detenu has to make a request to the Board that he wants to be represented by a friend.
In the absence of such request the Board is not obliged to tell him that he can avail of such
facility. It was observed by the Supreme Court in Phillipa Anne Duke v/s State of Tamil
Nadu [foot note- AIR 1982 SC 1178,1181].

The board must conclude its proceedings expeditiously and must express its opinion within
the time prescribed by law. Failure to do so makes the detention invalid. Along with its
opinion the Board must forward the entire record of proceedings before it to the government
because the government is supposed to take a decision on the perusal of the entire record
which it cannot do in the absence of the record. Therefore any decision to continue the
detention without going through such record makes the detention illegal for non-application
of mind.

In the absence of an independent office and staff the, Advisory Board can use the
government staff for the purpose of correspondence, etc. even with the detenu. Such use does
not vitiate the opinion of the Board. It was held in the case Nand Lal v/s State of Punjab [foot
note- AIR 1981 SC 2041,2045]

Chapter

Judicial Contribution in the light of preventive detention

Emergency of 1975 and the habeas corpus case:

‘The Habeas Corpus Case’ also known as ‘Shiv Kant Shukla Case’ is very important for the
study of preventive detention. It took place at the time of emergency in the year 1975.

28
The Habeas Corpus case captures the Emergency as nothing else, its authoritarian and
geographical reach, its inefficiencies, its meanness and occasional magnanimity, its
evocation of judicial philosophies and degrees of courage among judges and lawyers, its
testing of officials’ consciences and their willingness to submerge them in duty, its restraint
compared with authoritarian regimes and periods of authoritarian rule in other countries. The
Supreme Court opened hearing in the case on 15 December 1975 and handed down its
decision in 28 April 1976.

The case originated with the many preventive detentions made around the country in the
early hours of June 26. That day, in the city of Bangalore, the Commissioner of Police
ordered the arrest of A. B. Vajpayee, L. K. Advani and Subramaniam Swamy of the Jana
Sangh Party, S. N. Mishra of the Congress (O), and Socialist Party member Madhu
Dandavate under the Maintenance of Internal Security Act. All were in the city on official
business as members of a Parliament Delegation. [foot note-Vajpayee had gone to Bangalore
to press the opposition’s claim that Mrs. Gandhi should resign while appealing her election
case and should she not resign, the opposition would engage in satyagraha to remove the
corrupt prime minister.] The police commissioner later said that he had made the arrests
‘after scrutinizing the material placed before him’. This seem not to have been true, for ‘the
grounds of detention’ were collected from Delhi after the detentions by a special officer sent
from Karnataka and the commissioner made the arrests because the Chief Secretary of Delhi
had telephoned the Chief Secretary of Karnataka and requested them, mentioning the Prime
Ministers concurrence. [foot note-Shah Commission report, II, page 33]. Additionally,
detention orders under MISA were served on these members of parliament only on the
evening of June 26, although they had been arrested in the morning. The police of Bangalore
made the orders as per the New Delhi’s orders and with no ‘application of mind’ as required
by law.

The Karnataka Bar and local attorneys reacted sharply. The Bar passed a resolution calling
for withdrawing the emergency, for the release of those arrested and for a boycott of the
states courts on 4 July. Bangalore lawyers, N. Santosh Hegde and M. Rama Jois, joined by N.
M. Ghatate from New Delhi, with the advice of K.S.Hegde, father of Santosh Hegde drafted
the Writ Petitions for the detentions. They asked the Karnataka High Court to quash the

29
detentions on the ground that continuance of Emergency of 1971, after the end of India-
Pakistan War and the signing of the Simla Pact of 1972, was unconstitutional as was the 25th
June declaration of Internal Emergency and also on the ground that the President had signed
the proclamation before the Cabinet had approved it and thus without the advice of his
Council of Ministers.

After hearing the Karnataka Government and the Detenus, the High Court expressed the view
prima facie that the detentions appeared to be invalid, admitted the petitions and posted them
for a hearing three days later. Realising the significance of this challenge to the emergency,
the Prime Minister sent Attorney General Niren De to defend the government. Just before
the hearing was to open on 17th July, the detenus were handed release orders only to be
detained a few minutes later under as order dated the previous day. The authorities cited for
this MISA as an amendment on 29 June which allowed for detention without disclosing the
grounds to the detenu or the courts. The right to move to the court for protection of
Fundamental Rights under Articles 14, 21 and 22 had already been suspended on 27th June.
So when Niren De came to defend the Government, he argued the second detention order
would necessitate fresh writ petitions. The court agreed and ordered the jail superintendent to
facilitate conferences between the detenus and their lawyers for this purpose.

But meanwhile, the Central Government transferred Mishra, Advani and Dandavate to
Rohtak Jail in Haryana. Vajpayee was not moved because he was recuperating from an
operation.

Though it had resolved the matter but because the second detentions had been made in the
city and fresh petitions for writs of Habeas Corpus submitted there, the High Court ordered
the Central Government to return the detenus to Bangalore by 26 September for a hearing
scheduled for 29th September. In the meanwhile Government had passed the ordinance on
29th June denying the detenus information about the grounds for their detention and also on
15th July, excluding the use of the concepts of ‘Natural or Common Law’ in detention cases.

On that day, the advocates of the detenus argued that continuing the Emergency of 1971 was
a fraud on the Constitution and Mrs. Indira Gandhi had misused constitutional powers and

30
states machinery for perpetuating herself in office and so, the orders the detenus were
challenging should be set aside. The court was convinced by the argument of the Advocates
of detenus and therefore the court rejected the Government of India’s contention that the
challenges to the Emergency and the Habeas Corpus petitions were not maintainable because
of the Thirty-eighth Amendment and the President’s Order dated 27th June. Therefore the
court said that the Proclamation of Emergency had legally been challenged.

Months of legal wrangling over these cases followed while Writs of Habeas Corpus were
filled in various High Courts. Many of these upheld the Habeas Corpus petitions by rejecting
the Government’s contention. One of these cases was Shiv Kant Shukla v/s Additional
District Collector, Jabalpur in Madhya Pradesh High Court. This High Court on 1
September, 1975 ruled that ‘Habeas Corpus as an instrument to protect against illegal
imprisonment is written into the Constitution. Its use by the courts cannot, in our opinion, be
constitutionally abridged by the Executive or by Parliament except in the manner provided
by Article 368 of the Constitution.’

The Government of India appealed these rulings to the Supreme Court, where they were
‘clubbed together’ into one case thereafter referred to as ‘Shiv Kant Shukla’ or the ‘Habeas
Corpus Case’. The hearings before the Supreme Court began on 15th December.

Before Ray C. J. could hear the appeals from the ten High Courts he had to select a bench.
The rumours had it that he would select colleagues likely to side the Government. Members
of Supreme Court Bar Association, who were worried about the composition of the bench,
arranged to have telegrams sent to the Chief Justice of India from around the country urging
bench selection according to Seniority. C.K. Daphtary, formerly Attorney General, called on
Ray, the Chief Justice and told him about the rumours and he also suggested him to follow
the seniority criterion. And Ray did select the bench according to the seniority: himself, H. R.
Khanna, M. H. Beg, Y. V. Chandrachud, P. N. Bhagwati JJ.

The hearing that began on 15 December 1975 lasted into February 1976 over thirty seven
working days. They were reported extensively, although not fully in the press, including even
the arguments for detenus. For the Government, Attorney General De, Additional Solicitor

31
General V. P. Raman and the Advocates General of Kerala and Maharashtra based on their
position on MISA, 1971 did the arguments. In their arguments they said that the 1975
Amendment in MISA and when it became available, the President’s Order under Article 359
(1) suspending the citizen’s right to move to the courts for the enforcement of the ‘freedoms’
in Article 19. It was also argued that the writs of Habeas Corpus were not maintainable in
view of MISA amendments and that in all countries in time of war personal liberty was
restricted and that during the Emergency the executive had overriding power and the rule of
law was suspended. It was also contended by the Advocates of the Government that the
detenu’s arguments overlooked the emergency and were only ‘political and emotional’.

Senior Advocates Shanti Bhushan, Soli Sorabjee, V. M. Tarkunde, Anil Divan, Ram
Jethmalani, C.K. Daphatary and others represented the individual detenus. Opening the
detenus defence, Bhushan told the five judges that the denials of liberty during the
Emergency were unconstitutional and that if the remedy of Habeas Corpus was denied then
the protection of life and liberty of citizens was ‘dead.’ Giving unlimited powers to the
Executive to take away life and liberty denied the judiciary its important role and thus
violated one of the basic tenets of the Constitution. Soli Sorabjee took Bhushan’s argument a
step further mentioning that the rule of law was a principle embedded in Indian soil and was
part of the Basic Structure of the Constitution. He argued that the executive could not
interfere with an individual’s liberty unless it could support the legality of its argument in a
court of law. Tarkunde added to the argument that the onus for proving the legality of a
detention order has shifted to the government once a Habeas Corpus petition was filed. This
precedent has been established in the Makhan Singh’s case, contended Anil Divan, where the
High Court then involved and the Supreme Court both had ruled that a detenu could
challenge his detention on the ground that it was illegal in terms of the Defence of India Act.
[foot note- Makhan Singh V. Punjab 1964(4) SCR 797]. The other advocates of individual
detenus also did their arguments.

The bench gave its decision on 28th April, 1976. The detenus’ lawyers had hoped that
Chandrachud and Bhagwati JJ. would give their judgments in favour of the detenus but they
did not. Chandrachud, Bhagwati, Beg and Ray JJ. upheld the Government of India’s position.
Only Khanna J. dissented. Hence a four judge majority held that no citizen had standing to

32
move a writ of habeas corpus before a High Court under Article 226 in light of the
President’s Order of 27th June 1975 or to challenge a detention order as illegal, as factually or
legally mala fide, or as based on extraneous considerations. Section 16 A (9) of MISA
(grounds for detention a matter of state and not to be revealed) was ruled constitutionally
valid and the four judges also held that Article 21 was the sole repository of rights to life and
personal liberty against the state. The case was listed in the Supreme Court as A. D. M.
Jabalpur v/s Shiv Kant Shukla.

Only Khanna J. dissented. In his judgment he stated the authorities ranging from Magna
Carta through the legal philosopher Sir Edward Coke, to the United Nations Constitution to
the precedent in the Supreme Court itself, beginning with A.K. Gopalan Case, Khanna J.
summarized his conclusions; Article 21 can not be considered to be the sole repository of the
right to life and personal liberty, rights created by statutes being not Fundamental Rights can
not be enforced during the period of Emergency despite the Presidential Order; Article 226 of
the Constitution is initial part of the Constitution and this power can not be bypassed by the
Presidential Order in question and there is no antithesis between the power to detain a person
under preventive detention and the power of the court to examine the legality of detentions.

But as four of the judges gave their judgment in favour of the Government of India, the
decision went in favour of the Government. The courts decision evoked sharp criticism,
except among those supporting the Emergency. Jayprakash Narayan said that Mrs. Gandhi’s
Dictatorship both in its personalized and institutionalized forms is now almost complete.

But as for the detenus, they remained in jail.

These cases all clubbed together are known as the Habeas Corpus or Shiv Kant Shukla case
and it is a landmark judgment for the study of Preventive Detention.

JUDICIAL REVIEW:

33
Supreme Court has expressly given its opinion on preventive detention in various cases and
from time to time. Supreme Court is also well aware of the fact that laws of preventive
detention are not flawless. From the following Articles we will try to find out the opinion of
the Supreme Court on Preventive detention.

“Preventive Detention is not punitive”: SC

In a major judgement, the Supreme Court has ruled that preventive detention of a known
smuggler cannot be termed to be punitive in nature and the period of such detention could not
be discounted from an imprisonment sentence awarded to him after conviction in a
smuggling case.

A Bench comprising Justice Shivaraj V. Patil and Justice Arijit Pasayat said "detention under
the preventive detention laws is not punitive but essentially a precautionary measure intended
to prevent and intercept a person before he commits an infra-active act which he had done
earlier."

This ruling came on a petition filed by one Maliyakkal Abdul Azeez who claimed that he was
entitled to set off as provided under Section 428 of the Criminal Procedure Code for the
period of preventive detention under the Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act (Cofeposa) since the detention was quashed by the Delhi High
Court.

Quoting the famous 1917 case titled Rex Vs Halliday, the Bench said Preventive detention
"is not punitive but precautionary measure."

The Bench said "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."

34
No preventive detention without proof

In a case, Pooja Batra vs Union of India & Others on 27 March, 2009,

the Supreme Court has held that a person cannot be held in preventive detention (custody)
without adequate evidence as otherwise it would be violative of his or her 'personal liberty'
guaranteed by the Constitution.

In matters relating to preventive detention, authorities have to examine whether there was
any organised act or activity giving room for an inference that the detainees would continue
to indulge in similar prejudicial activity warranting detention of the person, the apex court
said.

"In an appropriate case, if there is no adequate material for arriving at such a conclusion
based on solitary incident, the court is required and is bound to protect him in view of the
personal liberty which is guaranteed under the Constitution of India [ Images ]," a bench of
Justices Dalveer Bhandari and P Sathasivam observed.

Under law, a person can be held under 'preventive detention' for a certain period if there are
sufficient evidence to indicate that the accused has the propensity to indulge in criminal
activities, if he/she is not detained by the authorities. The bench passed the observation while
upholding an appeal filed by Pooja Batra [ Images ], challenging the preventive detention of
her husband Deepak Batra by Customs authorities, under the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act.

The authorities held Deepak Batra under preventive detention on the ground that he had
smuggled goods into the country since 2006, though they did not have adequate evidence to
back up their charge. The accused's wife filed a petition in the Delhi [ Images ] High Court
against the detention but it dismissed her plea and imposed a fine of Rs 50,000 on her,
following which she appealed in the apex court.

Upholding her appeal, the apex court said there was no material on record to establish the
charge of the Customs authorities that the accused was indulging in smuggling activities
warranting his preventive detention.

35
"There is nothing in the order of detention which would indicate that any of the said earlier
imports were effected in contravention of any of the provisions of the Customs Act, 1962, or
that they could have been regarded as having been smuggled into the country," the bench
observed. The apex court, while quashing the detention order, also relieved the petitioner of
the Rs 50,000 fine imposed by the high court.

Supreme Court has expressly given its opinion on preventive detention in various cases.
Some of the important Judgments of the Supreme Court of India are as follows:

1) A.K. Gopalan v. State of Madras: In this case the Hon’ble Supreme Court of India held
that clauses (4) and (7) of Article 22 provide for two powers which are alternative or
independent: i) to make a law providing for a longer detention without an Advisory Board
and ii) to make a law providing for a longer detention without an Advisory Board.

2) Maneka Gandhi v/s. Union of India: In this case the concern shown by the Supreme Court
to that right in the Forty-fourth Amendment making enforcement of Articles 20 and 21 non-
suspendable even during a Proclamation of Emergency

3) A.K. Roy v/s. Union of India: The Supreme Court held that the Amended clauses (4) and
(7) of Article 22, which could take effect only in a notification from the Central Government
and if such notification is not issued by the Central Government, it remains inoperative.

4)Pooja Batra v/s. Union Of India & Others: the Supreme Court has held that a person
cannot be held in preventive detention (custody) without adequate evidence as otherwise it
would be violative of his or her 'personal liberty' guaranteed by the Constitution.

5) Shiv Kant Shukla v/s.Additional District Magistrate, Jabalpur: This High Court ruled that
‘Habeas Corpus as an instrument to protect against illegal imprisonment is written into the
Constitution. Its use by the courts cannot, in our opinion, be constitutionally abridged by the
Executive or by Parliament except in the manner provided by Article 368 of the
Constitution.’

36
These are some of the important case laws just to name a few or we can say, the landmark
judgments given by Supreme Court which have helped us enormously to find out the true
intention of makers of the Indian Constitution in enacting the provisions of the Preventive
Detention.

COMPARISIONS WITH OTHER NATIONS:

India is one of the very few Countries which provides for Preventive Detention during
peacetime. Under the Constitutions of Countries like United States of America, it is
considered as an offence. They provide the Right of Preventive Detention only during the
war time to its executives. The Anti-Terrorism Act, 2005 passed by the Australian Parliament
also does not provide the power of Preventive Detention to the Australian Government. It is
stated by Australian Security Intelligence Organisation (ASIO); that detaining or
interrogating an individual in almost all circumstances is a crime. The Indian Constitution
provides that in Preventive Detention, a person is detained without trial in the subjective
satisfaction of the executive to prevent him from doing undesirable acts in future. Thus, as
per Indian Constitution Preventive Detention is not a crime. View of Indian Constitution in
this regard is very broad.

CHAPTER
CRITISISM AND SUGGESSIONS:

India is one of the few countries in the world 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. South Asia Human Rights Documentation Centre
(SAHRDC), in its submission to the NCRWC in August 2000, recommended deleting those
provisions of the Constitution of India that explicitly permit preventive detention.

Specifically, under Article 22, preventive detention may be implemented ad infinitum

whether in peacetime, non-emergency situations or otherwise. The Constitution expressly

37
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.

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 Government,
however, has not invoked this privilege, nor could it, as the current situation in India does not
satisfy with standards set forth in Article 4.

If preventive detention is to remain a part of India’s Constitution, it is imperative that its use
be confined to specified, limited circumstances and include adequate safeguards to protect
the fundamental rights of detainees. Particular procedural protections are urgently needed (i)
to reduce detainees’ vulnerability to torture and discriminatory treatment; (ii) to prevent
officials’ misusing preventive detention to punish dissent from Government or from majority
practices; and (iii) to prevent overzealous government prosecutors from subverting the
criminal process. In pursuit of these goals, SAHRDC made the following recommendations
in its submission to the NCRWC:

First, Entry 3 of List III of the Constitution of India, which allows Parliament and State
Legislatures to pass preventive detention laws in times of peace for “the maintenance of
public order or maintenance of supply and services essential to the community,” should be
deleted. Assuming that preventive detention could be justified in the interest of national
security as identified in Entry 9 of List I of the Constitution, there is still no compelling
reason to allow this extraordinary measure in the circumstances identified in Entry 3 of List
III.

Second, lacking clear guidance from the Constitution, courts have applied vague and
toothless standards -- such as the subjective “satisfaction” of the detaining authority test to

38
govern the implementation of preventive detention laws. If preventive detention is to remain
in the Constitution, constitutional provisions must include well-defined criteria specifying
limited circumstances in which preventive detention powers may be exercised -- and these
standards must be designed to allow meaningful judicial review of officials’ actions.

Third, under Article 22(2) every arrested person must be produced before a magistrate within
24 hours after arrest. However, Article 22(3) (b) excepts preventive detention detainees from
Clause (2) and, as a consequence, it should be repealed in the interest of human rights. At
present, detainees held under preventive detention laws may be kept in detention without any
form of review for up to three months, an unconscionably long period in custody especially
given the real threat of torture. At the very least, the Government should finally bring
Section 3 of the Forty-fourth Amendment Act, 1978 into effect, thereby reducing the
permitted period of detention to two months. Though still a violation of international human
rights law, this step would at least reduce the incidents of torture significantly.

Fourth, the Advisory Board review procedure prescribed by the Constitution involves
executive review of executive decision-making. 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). The Constitution must be amended to
include clear criteria for officials to follow, and subject compliance with those standards to
judicial review.

Fifth, the Constitution provides that the detaining authority must refer to the Advisory Board
where detention is intended to continue beyond three months. No provision exists for the
consideration of a detainee’s case by the Advisory Board more than once. Yet, periodic
review is an indispensable protection to ensure that detention is “strictly required” and fairly
administered. Hence, the Constitution should mandate periodic review of the conditions and
terms of detention.

Sixth, detainees must receive detailed and prompt information about the grounds of their
arrest. Currently, the detaining authority is required only to communicate the grounds of

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detention to the detainee “as soon as may be” after the arrest. Article 9(2) of the ICCPR
provides that “[a] one who is arrested shall be informed, at the time of arrest, of the reasons
for his arrest and shall be promptly informed of any charges against him.” Detainees must be
guaranteed a minimum period in which the grounds are promptly communicated to them, and
be given information sufficient to permit the detainee to challenge the legality of his or her
detention

Seventh, individuals held under preventive detention must be given the right to legal counsel
and other basic procedural rights provided by Articles 21, 22(1) and 22(2) of the
Constitution. Article 22(1) of the Constitution, for example, guarantees the right to legal
counsel, but Article 22(3)(b) strips this right from persons arrested or detained under
preventive detention laws. Relying on these provisions, the Supreme Court stated, in AK
Roy v. Union of India, that detainees do not have the right to legal representation or cross-
examination in Advisory Board hearings. Contrary to India’s constitutional practice, the
U.N. Human Rights Committee has stated, “all persons arrested must have immediate access
to counsel.” Article 22(3) (b) of the Constitution – denying detainees virtually all procedural
rights during Advisory Board hearings – must be repealed.

Eighth, Article 9(5) of the ICCPR provides the right to compensation for unlawful detention,
except during public emergencies. A similar provision creating a right to compensation is
included in section 38 of the Prevention of Terrorism Bill of 2000 (though the bill is
otherwise effectively a reconstitution of the lapsed Terrorist and Disruptive Activities
Prevention Act (TADA)). The Law Commission charged with reshaping the anti-terrorism
legislation observed that Supreme Court orders have held that people are effectively entitled
to compensation, in practice superseding India’s reservation to Article 9(5) of the ICCPR. In
this light, the Government of India should promptly withdraw its reservation to Article 9(5)
of the ICCPR and include a Constitutional provision guaranteeing the right to compensation,
at least for unlawful detention during peacetime.

In keeping with the overriding spirit of the Constitution and with minimum standards of
international human rights law, it is essential that the Constitutional reforms discussed above
be adopted. The process set in motion by establishing the NCRWC provides a unique

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opportunity for such an important realignment of India’s Constitution with prevailing
international human rights standards. The key will be political willpower and the
commitment to seeing justice done.

CHAPTER
CONCLUSION:

The Indian Constitution provides that in Preventive Detention, a person is detained without
trial in the subjective satisfaction of the executive to prevent him from doing undesirable acts
in future. The laws on preventive detention are not flawless. But Supreme Court of India has
drawn various safeguards in this regard so that the laws of Preventive Detentions cannot me
misused like they were misused at the time of Emergency of 1975. The Supreme Court has
tried to clear out the confusions relating to the Art. 22 in which Preventive Detention is given
as one of the exceptions to the Right of Protection against Arrest. It is crystal clear that
Preventive Detention does not violate the rights of individuals given under Article 14, 21, 19,
32 and 226. Preventive Detention is explained not only in the Constitution of India but also
in other various Acts like Criminal Procedure of India, MISA, National Security Ordinance
1980, the Preventive Detention Act, 1950. Advisory Board plays a vital role in giving its
opinion about the detention to the executive and it also has the right to decide whether the
detention made is legal or not. Constitution of India has made it clear that Preventive
Detention beyond Three months cannot be made without the consent of Advisory Board.

10) BIBLIOGRAPHY:

The books that have been used in the presentation have been of utmost help in the thorough
research of this topic. They include:

1. Jain M. P., Indian Constitutional Law, 6th Edition, 2010

2. Kumar Narendra, Constitutional Law
3. Singh Mahendra P., Constitution of India

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4. Rai Kailash, The Constitution of India
5. Austin Granville, Working a Democratic Constitution: A History of the Indian
Experience, 6th Impression 2009

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