PROJECT TOPIC

Awareness level of the legal safeguards of persons arrested under the

preventive detention laws: A case study of four police stations of district
Srinagar

Supervised by Submitted by

Dr. Mudasir Bhat Henna Nisar

Assistant Professor LLM III Semester

SLS, CUK Enroll No.1811cukmr07

Department of Law, School of Legal Studies

Central University Of Kashmir, Ganderbal

SYNOPSIS

INTRODUCTION AND STATEMENT OF PROBLEM:

India is a country having different religions, different castes, different languages, different norms
and different cultures. Caste and communal violence is very common in our country. National
security, integrity and individual dignity is of core values in the constitution of India. Article 21
of the constitution of India that guarantees a life with dignity to each individual is a fundamental
right and is non-derogable.1 However, the state’s approach towards criminals has always been
harsh in suppressing and disowning the criminal and illegal activities in the best interest of the
public. Our constitutional framers choose to keep preventive detention as a method of curbing
anti-national operations. Preventive detention can be understood as “imprisonment of a person
without trial, an act that is supposedly justified for non-punitive ends and is often described as a
preventive measure rather than a punitive one. There is no authoritative definition of the term
“preventive detention” in Indian law. The word ‘preventive’ is used in contra-distinction to the
word “punitive”. It is preventive and not a punitive measure. The object of punitive detention is
to punish a person for what he has already done, while the object of the preventive detention is
not to punish a man for having done something but to interrupt him before he does it and to
prevent him from doing it. No offence is proved nor is any charge formulated. The only
justification of such detention is “suspicion or reasonable probability of the detenu committing
some act likely to cause harm to the society or endanger the security of the government,” and not
criminal conviction which can only be warranted by legal evidence. 2 The entire scheme of
preventive detention is based on the fact that the state is to protect the interest of the country and
welfare of the people from anti-social activities by anti social elements affecting maintenance of
public order, economic welfare of the country etc.3

The nature of the preventive detention laws is entirely different from the arrest and detention of
ordinary discipline of a criminal jail and it is applicable in both emergency and peaceful
situation. In the event of arrest and detention, the arrested people is given various safeguards
mentioned under article 22(1) and (2) of the constitution but these safeguards are not provided to
the arrested person under article 22(3) of the constitution. Thus article 22 of the Indian
constitution deals with two separate matters (1) persons arrested under the ordinary law of crimes
and lay down the procedure which has to be followed when a man is arrested. And the remaining
clauses (3), (4), (5) and (6) deal with persons detained under a preventive detention law and lay
down the procedure which is to be followed when a person is detained under the law.4

In order to understand why a provision permitting detention without trial i.e. preventive
detention finds place in part III of the constitution of India dealing with fundamental rights, we
1
Sidheshwar patra and Bandna Shekhra: “An Exploration of the legal provisions to safeguard the victims against
the preventive detention in India”; Indian journal of legal philosophy; vol.3; issue 4, December 2015.
2
Dr. J.N.Pandey; constitutional law of India; 55 th edition; page no. 357 &358.
3
Durga Das Basu; “Commentary on the constitution of India”, 8 th edition 2008, P.no. 3304.
4
Supra note 2; page no.353.
need to see the backdrop around the time our constitution was framed by the constituent
assembly. Mindless communal violence around the time of partition, anti-national forces, war
with Pakistan over Kashmir, Razakar movement in Hyderabad and problems over integration of
states into the union territories weighed heavily on the minds of the members of the constituent
assembly. They felt that the government needed the power of preventive detention under the
prevailing circumstances. But the framers of the constitution improve upon the existing law by
subjecting the power of preventive detention to “certain constitutional safeguards” upon the
violation of which the individual could have a right to approach the Supreme Court under article
32 or high courts under article 226 of the constitution. There have been a number of cases in
which courts have nullified orders of preventive detention in proceedings for habeas corpus.

In A.K.Gopalan v. State of Madras; Patanjali Shastri,J, J explained the necessity of preventive

detention in the following words: “the sinister looking feature, so strangely out of place in
democratic constitution, which invests personal liberty with the sacrosanctity of a fundamental
right, and so incompatible with the promises of its preamble, is doubtless designed to prevent
the abuse of freedom by anti social and subversive elements which might imperil the national
welfare of the infant republic”5

Clause 1 and 2 of article 22 of the Indian constitution confer the following fundamental rights on
every person who is arrested for any offence under any ordinary law:

1. To be informed, as soon as may be, of the grounds for such arrest.

2. Not to be denied the right to consult and to be defended by a legal practitioner of his own
choice;

3. The right to be produced before the magistrate within 24 hours;

4. Not to be detained in custody beyond the said period of twenty four hours without the
authority of a magistrate.

However, clause (3) of article 22 contains two exceptions and provides that the above mentioned
constitutional safeguards do not apply to (a) enemy aliens and (b) persons arrested or detained
under any law providing for preventive detention. Clauses (4) to (7) of article 22 are devoted to
laying down certain fundamental principles as to preventive detention and guaranteeing certain
fundamental rights to the persons who are arrested and detained under any law for preventive
detention. The constitution of India does not directly provide for preventive detention of any
person for any purpose. Article 22 only assumes the possibility of law for preventive detention.
If there is no such law, the executive cannot of its own responsibility detain nay person in
custody. Any law relating to preventive detention in order to be valid must satisfy the
requirements of clauses (4) to (7) of article 22. The fundamental rights guaranteed by clauses (4)
to (6) to persons detained under any law for preventive detention, relate to “the maximum period
5
Supra note 2; P.no. 3587
of detention, the provision of an advisory board to consider and report on the sufficiency of
cause for the detention, the right to be informed of the grounds of arrest and the right to have
earliest opportunity of making a representation against the order of detention.” 6 No person can
be detained indefinitely. Article 22(7) provides exception to the above provisions. This article
provides that: “when the parliament prescribes by law the circumstances under which a person
may be kept in detention beyond 3 months without the opinion of the advisory board.7

As a matter of fact, both the central and state government authorities have been made to
empower for enacting preventive detention laws. First special national laws that apply in non-
emergency situations such as preventive detention law of the past. Secondly; area specific central
laws enacted by central government, these laws apply to selected areas in order to deal with
insurgencies and militancy. Third; special laws enacted by the state governments to deal with the
public and organized crime.8 Soon after the enactment of the constitution, parliament passed the
first preventive detention Act, 1950, which was brought into force within weeks of adopting the
constitution. However, the preventive detention law was revived in the form of “Maintenance of
Internal Security At, 1971 (MISA)”, in less than two years after the lapse of the first preventive
detention act, 1950. This act was repealed in 1978. Then in 1980, parliament enacted the national
security Act, 1980 (NSA), which continues to be in force today, retain some of the provisions of
PDA and MISA and allows preventive detention for a maximum period of 12 months but does
not bar the detenu from challenging his detention in a court of law on grounds, amongst others,
of infringement of his fundamental. Parliament also enacted the conservation of “Foreign
exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA).

Thus at present. We have numerous legal provisions on this subject, but how far these
procedures are adequate to protect the interest of a detenu is an unresolved question. It is
acceptable that there is a need of preventive detention laws according to the situation of the
country but it is also very much clear from many evidences that these laws have been misused. In
many cases, the political purpose and personal retaliation plays a significant role in making
arbitrary detentions. In other words, the power to detain a person as a preventive measure has
become a dodgy weapon in the hands of state machineries to fulfill their unlawful objects.

So the focus of this study is to see whether the existing legal provisions are adequate to
safeguard the rights and to give minimum protection, safety and social security to persons
arrested under preventive detention laws. Researcher also wants to find out whether the detaining
authority and the persons arrested under various preventive detention laws are aware of such
legal safeguards.

6
Kalkarni, Harishchandra Gopalrao; “Review of the Judicial Gloss on Article 22 of the constitution of India; 2004
also available at http://hdl.handle.net/10603/138028

7
Available at: http://www.gktoday.in/article-22-and-preventive-detention-in-india/ (visited on 16th April 2021)
8
U.K.Singh; “the state, democracy and Anti-terrorism laws in India”, 2007; P.16.
REVIEW OF LITERATURE:

The literature review for a preliminary study is as follows:

 Author- Dr. J.N. Pandey, in his book titled, “Constitutional Law of India” has discussed
in chapter 12 about the historical perspective of preventive detention laws in India and
the necessity of such provisions. He has extensively talked about the “constitutional
safeguards against preventive detention laws. As my research focuses on the legal
safeguards of persons arrested under preventive detention laws, it provides me great help.
 Author- M.P.Jain;
 Author- Harshit Sharma; 3rd year BBA LLB student, ITM University, Raipur; Journal on
Contemporary Issues of law (JCIL); VOL.3 ISSUE11, topic: “Preventive Detention; An
evil Of Article 22”.In the given article, the author has analyzed the problem in the light of
the social, political and legal issues, constitutional provisions and other relevant statutory
materials along with relevant case laws touching on the topic.
 Author- MR. Ashish Kumar Singh; “ Human Rights And Preventive Detention: Laws
And Challenges”; Fastforward Justice’s Law Journal (2581-6713), volume II,ISSUE
VI.In the said article, the author extensively talked about preventive detention laws and
the rights of arrested or detained persons under article 22 of the constitution of India. This
article helps me to understand the rights available to persons detained under preventive
detention laws which is quite relevant for my research work.
 Author- Kalkarni, Harishchandra Gopalrao; shivaji university, Department of law,
(2004), Title: “Review of the Judicial Gloss on Article 22 of the Constitution of India”. In
the given research paper, researcher has attempted to make a close scrutiny of the case
laws of the supreme court of India and to discover general trend of judicial attitude in
relation to article 22. The researcher has tried to portray the true dimension of article 22
of the constitution of India. As this article presents the role of judiciary in protecting and
enforcing the rights of detenus, it would be helpful for my research work.

RESEARCH OBJECTIVES:

The research was undertaken with the following objectives:

 To study and analyze the relevant laws relating to the legal safeguards of persons
detained under preventive detention laws.
 To study and examine the various national and state preventive detention laws.
 To assess the awareness level of legal safeguards available to the persons arrested under
preventive detention laws.
 To analyze the role of judiciary in protecting and enforcing the rights of detenus.

HYPOTHESIS:
The researcher hypothesizes that:

1. There is a lack of awareness about constitutional safeguards against preventive detention

laws among persons arrested under such preventive detention laws and the executive
authority.

RESEARCH METHODOLOGY:

Research methodology is a way to solve the research problem systematically. It is a science of

studying how research is done. Quite often, methodology and methods are treated as synonyms.
Nevertheless, the methodology is broader and envelopes the method. The research methodology
includes the study of the various steps adopted by the researcher while studying his research
problem along with the logic behind them.9

The present research study is doctrinal as well as empirical in nature. For the purpose of
doctrinal research, researcher will take advantage of both primary and secondary resources. The
primary sources for the purpose of this research work include study of international instruments,
constitutional and legislative provisions, and judgements of the higher judiciary (case laws). The
secondary sources include: authentic books, reputed journals, magazines, articles, newspapers
etc.

For the purpose of empirical study, the data shall be retrieved primarily from various respondents
by way of questionnaire.

SIGNIFICANCE OF THE STUDY:

The present research work has been framed and designed to focus on the rights or legal
safeguards of persons arrested under preventive detention laws. The study will be of paramount
importance to the community as a whole. Evaluation of various legislative provisions relating to
the rights of persons detained under various preventive detention laws will create an awareness
of existing statutory provisions to the masses. Moreover, suggestions of the study will be helpful
in making appropriate reforms in the existing law in order to make it more effective.

LIMITATIONS OF STUDY:

There are limitations in this study, as usual to this type of research topic. The questionnaire
method is susceptible, and respondents may not express their views openly.
9
Available at https://www.researchgate.net
TENTATIVE CHAPTERIZATION:

 INTRODUCTION.
 CONCEPTUAL DIMENSIONS AND HISTORICAL PERSPECTIVE.
 NATIONAL AND STATE PREVENTIVE DETENTION LAWS.
 CONSTITUTIONAL SAFEGUARDS AGAINST PREVENTIVE DETENTION.
 JUDICIAL ATTITUDE.
 EMPIRICAL STUDY.
 CONCLUSION AND SUGGESTIONS.

CHAPTER 2

CONCEPTUAL DIMENSIONS AND HISTORICAL PERSPECTIVE

  MEANING OF PREVENTIVE DETENTION:
A person can be put in jail/custody mainly for two reasons. One is that he has committed
a crime. Another is that he has the potential to commit a crime in the near future. The
custody arising out of the later is “Preventive Detention” and in this, a person is deemed
likely to commit a crime. Thus preventive detention is done before the crime has been
committed.10
The literal meaning of the term “preventive detention” implies physical detention of a
person which is of preventive nature. In law, it means depriving a person of his liberty by
putting him in a place with a view to prevent him from committing acts which may pose
a threat to the defense and foreign affairs , security of India or security of a state, disrupt
public order or disrupt maintenance of supplies and services essential to the
community.11 In common parlance, preventive detention means detention of a person
without trial. It refers to detention at the will of the executive.
According to Durga Das Basu, “preventive detention is resorted to in such circumstances
that the evidence in possession of the authority is not sufficient to make a charge or to
secure the conviction of the detenu by legal proofs but may still be sufficient to justify his
detention on the suspicion that he /she would commit a wrongful act unless he/she is
detained”.
The word “preventive” is used to distinguish it from the word “punitive”. To quote the
words of Lord Finley in R v. Haliday12, “it is not punitive but a precautionary measure”.
Preventive detention differs from the punitive detention both in respect of its purpose and
its justification. The object of the preventive detention is not to punish a man for having
done something wrong but to intercept before he does it and to prevent him from doing it.
No offence is proved nor is any charge formulated. The justification of the preventive
detention is suspicion or reasonable probability of the upcoming commission the
prejudicial act and not criminal conviction which can only be warranted by legal
evidence. Thus, the general importance of preventive detention is the imprisonment of an

10
https://blog-ipleaders-in.cdn.ampproject.org/v/s/blog.ipleaders.in/safeguards-against-arbitary-arrest-and-
detention-article-22.
11
Constitution of india,seventh schedule-List I (Entry No.9), List III (Entry No. 3)
12
1917 AC 260,269.
 individual with the objective of keeping them from committing further offences orof
maintaining public order.13
 NECESSITY OF PRENTIVE DETENTION LAWS:
Preventive detention laws are repugnant to democratic constitution and they are not found
in any of the democratic countries of the world. No country in the world has made these
laws an integral part of the constitution as has been done in India. It was resorted to in
England only during war time. Indian constitution however recognizes preventive
detention in normal times also.
The main aim of the constitution framers to bring such provision into existence was to
prevent the people from disrupting the peace and stability of the society. 14 In
A.K.Gopalan v. State of Madras15, Patanjali Shastri,J.,16, explaining the necessity of this
provision said: “The sinister looking feature, so strangely out of place in democratic
constitution, which invests personal liberty with the sacrosanctity of a fundamental right,
and so incompatible with the promises of its preamble, is doubtless designed to prevent
the abuse of freedom by anti-social and subversive elements which might imperil the
national welfare of the infant republic.”

HISTORICAL PERSPECTIVE OF PREVENTIVE DETENTION LAWS IN INDIA

13
https://fastforwardjustice.com/human-rights-and-preventive-detention-laws-challenges.

14
Supra Note 10.
15
AIR 1950 SC 27.
16
Dr. J.N.Pandey, Constitutional Law Of India; 55th Edition; P.no. 358.