K Chakra Pani
Introduction
The field of criminal law jurisprudence encompasses different theories of punishments: retributive, deterrent, expiatory, preventive, and reformative.[1] The Indian criminal law follows a mix of deterrent, preventive, and reformative theories, with deterrent and preventive measures being the most prevalent among the substantive penal statutes and reformative justice seen in juvenile justice cases. The theory of preventive theory emphasizes the aspect of prevention of crime in the future through punishment. India’s criminal justice system is known for being a punishment in itself, with its process going on for years. Such preventive theory is applicable not only in punishment but also in trial and investigation. During a criminal trial, the accused is investigated and interrogated to gather evidence for prosecution. This includes filing of FIR, chargesheet, witness statements, etc. It is during the investigation stage that the aspect of preventive detention arises, provided the investigating authorities are empowered under the respective statute. The concept of preventive detention is not relatively new to the Indian Criminal Justice system. Still, its effects can be seen and felt in the present times with the enactment of the Unlawful Activities (Prevention) Act 1967 and several other State Laws providing the same.
Concept and Scope of Preventive Detention
Preventive Detention is the detention of a person by police authorities without a trial or conviction by a Court of Law. As the name suggests, it is the procedure of detaining an accused without any trial or prosecution, as a preventive measure. This measure is generally taken in cases of safeguarding ‘public order’ and preventing the accused from committing any subsequent crime during the investigation. Preventive detention is not a separate law in itself; rather it is a provision in any required law. The first mention of this concept was in the Preventive Detention Act of 1950 which was used as an emergency provision against the communists.[2] Later it was mentioned in Article 22 of the Constitution, stating that preventive detention must not last longer than three months, and protects the rights of the detenu. The primary purpose of preventive detention is to restrain an accused from committing a crime in the future, during the investigation of an offence that is already committed. No trial or investigation is held, but on the broad grounds of ‘public order’ and ‘public security’, such preventive detention can be done.
This topic attracted lots of heat during the proceedings of the Constitutional Assembly. There were lots of criticisms over the Government’s powers to make laws on preventive detention. It was argued that there were no explicit restrictions on such power to prevent its abuse. It was justified that although the power is granted to the Government to make such laws along with limitations for the same, the mere scope of misuse of such laws does not grant a ground to strip the government of its power to make such laws. The mere prospect of misuse is not a ground to completely remove the power to make such laws.
From a basic understanding of the concept, it can be seen that preventive detention is prima facie violative of fundamental rights under Article 21 and the basic principles of human rights. Article 22(2) provides that a person detained by police must be informed of his grounds of arrest as a fundamental right. Contrarily, the same article states that the provision for mentioning the grounds of arrest is not available to persons under preventive detention.[3] This power must be exercised only when the respective law provides for the same. It must be accompanied by explicit grounds for such exercise, which can be law and order, security of State, public order, etc. It is an emergency power to be used in the most extreme circumstances when the threat or probability of commission of a crime is high. The act of preventive detention does violate the accused’s rights and interests. Still, there must be genuine grounds to invoke such detention, and such grounds as public order are blatantly used to ‘preventively’ detain anyone under any law providing for the same. The Supreme Court also held that “all laws on preventive detention are necessarily harsh. They curtail the personal liberty of an individual, who is kept behind bars without any trial. In such cases, the procedure is all a detenu has. Laws of preventive detention must therefore be strictly applied.”[4] The Bench acknowledged that preventive detention laws affect the rights of the detenu and that there must be valid and significant grounds to invoke the same. A person’s greatest of human freedoms, personal liberty, is deprived during preventive detention, and therefore, the laws of preventive detention are strictly construed, and meticulous compliance with the procedural safeguard, however technical, is mandatory.[5]
There have been instances of the misuse of power under preventive detention laws which can be for political or other reasons. Preventive detention is prevalent in cases involving a political nature and in mere civil petty cases. The general rule is that the order of preventive detention is to be valid for three months and for a longer period, it is to be decided by an Advisory Board as provided by either the Constitution or any local laws. These local laws are also known as ‘Goonda laws’ which, as the name suggests, is to regulate and punish those acts of people classified as ‘Goondas’ (petty criminals). Such laws allow the police authorities to use such preventive detention under local laws to penalize common criminals for normal crimes, leading to custodial violence and other atrocities committed against them.[6] The power under Preventive Detention Law must be exercised sparingly and in reasonable anticipation. There must be a significant connection between preventive detention and the reasons behind the same. While passing such detention orders, the police must consider the effects on the constitutionally guaranteed rights and their protection to ensure that such preventive detention is not blatantly violative of the accused’s fundamental rights. The police showing callous indifference in passing detention orders coupled with total apathy towards the violation of the fundamental right guaranteed under Article 21 of the Constitution would clearly constitute a ‘constitutional tort’.[7]
About the case
In the case of Nenavath Bujji Etc. v. State of Telangana & Ors. [8], the accused was preventively detained under Section 3(2) of The Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986 (hereinafter referred to as ‘the Act’) for offences under Sections 379, 394, 356, and 392 of the Indian Penal Code 1860 (IPC). The charge was that the accused had been continuously committing the offences to earn money to lead a lavish life, along with charges of disturbing peace and public tranquillity. The alleged victims and other persons of the society feared the accused due to his acts of committing crimes against them like theft, etc., and was declared a ‘Goonda’ under Section 2(g) of the Act. This led to an appeal before the High Court for a writ of habeas corpus, which it declined to interfere with and rejected the case. The issue before the Supreme Court was whether the High Court committed an error in rejecting the writ petition of the detenu thereby affirming the preventive detention order of the Detaining Authority.
The Court referred to the definitions of ‘acts prejudicial to maintenance of public order’ under Section 2(a) and ‘Goonda’ under Section 2(g). There lies ambiguity in the definition of ‘maintenance of public order’ as it states that it includes any activity which affects adversely, or is likely to affect adversely, the maintenance of public order, and this is explained further that it amounts to causing any harm, danger, or alarm, or feeling of insecurity among the general public. This ambiguous scope of terms grants unlimited powers to the Detention Authority to justify their acts under the cover of ‘public order’.
Valid and Invalid Grounds for Invoking Preventive Detention
- Interpreting the scope of ‘Public Order’ vis-à-vis Preventive Detention
The Court stated that the object of the Act, or any preventive detention law in general, is to prevent crime and to protect society from anti-social elements. The detention of the person is not to punish him for something done, but to prevent him from doing it, provided there is the likelihood of the detenu acting similarly as in the past involving criminal activities. Such elements can include habitual criminals, dangerous and desperate outlaws, etc. who are so cold-hearted that moral fear of punishment does not deter them from committing crimes.
Preventive Detention is not a parallel proceeding to prosecution. Rather, it is a separate proceeding altogether from the trial. The first and basic requirement for invoking preventive detention under the Act requires the detenu to be a ‘Goonda’ under Section 2(g). The requirement of being a ‘Goonda’ is to habitually commit crimes, which does not have any ambiguity or confusion.
The second requirement is the ‘disturbance of public order’. There is no definite and explained scope of what amounts to public order, either for the purposes of the constitution or other penal laws or for the Act in the present case. The Courts have tried to interpret ‘public order’ by holding that the contravention of any law affects order by default, but to amount to public order, it must affect the community or the public at large. A mere disturbance of law and order is not sufficient for action under the Preventive Detention Act.[9] This brings about how to determine whether the public is affected or not, and what is law and order in the public. Law and order is the small and minor aspect that gets affected by any crime. It is the basic peace and tranquillity of the society or community. Disturbing it amounts to mere nuisance or slight disruption of peace, which does not attract the interference of law enforcement agencies. But public order requires that the ‘public’ must be disturbed at large. The distinction between ‘law and order’ and ‘public order’ lies not merely in the quality of the act but in the degree and extent of its reach upon society.[10]
The reliance is not only on the scope of impact of the criminal acts but also on the ability of the present laws to deal with the same. Not only should the acts affect the public at large, but the law also should provide for dealing with such situations. If the ordinary law cannot deal with such activities, then preventive detention is justified. The Court significantly noted here that the ‘inability on the part of State’s police machinery to tackle the law and order situation should not be an excuse to invoke the jurisdiction of preventive detention.’[11] This provides a significant jolt to the rampant abuse of powers of the detention authorities. They can no longer claim the garb of ‘threat to public order’ to preventively detain a person.
The Court established the rule of alternative remedy, similarly seen in the filing of cases before Courts. Before resorting to preventive detention, the authority must consider whether there is any other law available that can be exercised and whether preventive detention is the sole law that can be used in the situation. The authority must also see whether the effects of invoking preventive detention are justified with the grounds for such invocation; whether ‘public order’ is ‘really’ affected, whether the acts ‘disturb the public at large’, etc. Such factors must be taken into consideration before invoking preventive detention. In other words, preventive detention must be the last resort in dealing with the accused’s activities and must not be the first and only solution available. The mere inability of the police to invoke regular law and deal with the accused as per procedure is not a ground to invoke preventive detention. The proper and fair procedure must be followed as per the ordinary law, and if such law is seen as insufficient to deal with the activities, then preventive detention must be cautiously invoked.
An order based on the subjectivity and discretion of the authority on its interpretation of ‘prejudice to public order’ is a bad order as it could not be said in what manner and to what extent the valid and invalid grounds operated on the mind of the authority concerned and contributed to the subjective satisfaction forming the basis of such order.[12]
- A significant link between the evidence and satisfaction of Authority
In the present case, the authorities invoked preventive detention against the accused on the ground that two FIRs were registered against him, and considering the seriousness of the offence, the police preventively detained him. The Court held that the mere registration of two FIRs is not a valid basis to invoke preventive detention. A few requirements must be met: he must be classified as a Goonda under the Act, he must have prejudiced the public order through his activities, and he has the potential to do such activities in the future. In Khudiram Das v. State of West Bengal[13], the Court held that just because the detenu was charged with multiple offences, it could not be said that he was in the habit of committing such offences. Habituality of committing offences cannot be the sole basis for invoking preventive detention; other factors are to be taken like ‘public order’. In Khaja Bilal Ahmed v. State of Telangana & Ors.[14] the Court held that Section 3 of the Act provides for the subjective satisfaction of the detaining authority that the detenu is likely to indulge in illegal activities in the future. Such satisfaction must be arrived at not based on irrelevant or invalid grounds. The material basis must not be stale and has a live link with the satisfaction of the authority. The mere reference to pending criminal cases cannot grant preventive detention. The sufficiency of the grounds must have a rational probative value and such grounds must not be extraneous to the scope or purpose of legislative provision. This sufficiency cannot be challenged in a court of law except on grounds of mala fides.[15]
The Use of a Writ of Habeas Corpus as a Remedy
The Writ of habeas corpus is a writ directed to the person detaining another, and the court can direct to have the body of the person detained to be brought before it in order to ascertain whether the detention is legal or illegal.[16] This writ can be used to challenge the legality of any form of detention. The Court directs the production of the detained person before itself to determine the legality and need for such detention. It is a powerful safeguard against the subject of arbitrary acts. Although the notion is that fundamental rights and writs can be enforced usually against State Institutions only, this writ allows for its application to private bodies’ actions too. It is the duty of the Courts to issue writs to safeguard the freedom of the citizen against arbitrary and illegal detention. Unlike other writs, which are of the nature that penalize or command the other authority, the writ of habeas corpus facilitates the release of persons detained unlawfully and does not punish the detaining authorities.
Conclusion
The law on preventive detention is a powerful law that can be invoked to prevent threats to national security and public order. But along with granting such power, the exercise of it must be reasonable and justified, or else it leads to an autocratic state wanting to control the criticisms and other persons targeted by the state on baseless grounds, which take the form of ‘prejudice to public order’ or ‘threat to public peace and tranquillity.’ Such broad grounds taking a political or personal nature spoil the nature of the exercise of the law. The law is not being upheld to its legislative intention and is being misused and abused for every other reason except its intended reason. When power is granted, it must be used responsibly and in case of irresponsible use of such power, there must be accountability, which can be ensured through the Court’s intervention and granting fairness in the procedure.
[1] Mishra, S. (2016). Theories of Punishment – A Philosophical Aspect. Imperial Journal of Interdisciplinary Research (IJIR), 2(8).
[2] Krishnan, G., (no date). Preventive Detention in India: A Legal Perspective [online]. A and V Publication – Home Page. [Viewed 3 April 2024].
[3] Article 22(3)(b), The Constitution of India, 1950.
[4] Prakash Chandra Yadav v. State of Jharkhand | Civil Appeal No. 4324 of 2023, Supreme Court.
[5] Union of India & Anr. v. Chaya Ghoshal & Anr. (2005) 10 SCC 97.
[6] Irusammal v. State of T.N., 2008 SCC OnLine Mad 659.
[7] MCD v. Uphaar Tragedy Victims Assn., (2011) 14 SCC 481.
[8] Crl.(A) Nos. 1739-39/2024 Supreme Court.
[9] Pushkar Mukherjee v. State of West Bengal, (1969) 1 SCC 10.
[10] Union of India v. Amrit Lal Manchanda (2004) 3 SCC 75.
[11] Supra Note 7 at para 31.
[12] Shibban Lal Saksena v. State of U.P. (1953) 2 SCC 617.
[13] (1975) 2 SCC 81.
[14] (2020) 13 SCC 632.
[15] State of Bombay v. Atma Ram Sridhar Vaidya, 1951 SCC 43.
[16] Corpus Juris Secundum.