2021

Legal Methods

Name – Lavan Behl

Roll No. – A004

Course – BA. LLB. (Hons.)

Division – A

Topic – Preventive Detention Laws

Submitted to – Prof. Shrikant Aithal

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Table of Contents

Topics Page Number

Abstract 2

Introduction 3

Objective 4

Research Questions 4

Hypothesis 4

Review of Literature 5

Preventive Detention Laws 6

History of Preventive Detention Laws 7

Need, Usefulness, and Relevance 8

Constitutionality of Preventive 9
Detention Laws

Problems with Preventive Detention 10

Laws

Union of India V. Paul Nanickan and 11

Another, 2003

Findings 13

Solutions 14

The Conclusion 14

References 15

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TOPIC – PREVENTIVE DETENTION LAWS: FOR THE COUNTRY OR

THE GOVERNMENT

Abstract

Art 21 provides for life and liberty and the same article renders itself meaningless
when it talks about taking the right away by ‘the procedure established by Law’,
same happens with art 22 where it guarantee rights against detention in first two
clauses and take those away in the further part. ‘Procedure established by Law’ is a
phrase with such wide meaning in it that it gives immense power in the hands of
the ruling government which has been endangering the life and liberty of people of
India since 1950 with the advent of Preventive Detention Act. This paper construes
the relevance of the preventive detention laws prevailing in India at the present
time and whether they are being implemented for the cause of which they were
introduced in the nation or not. The aim is also to analyze the need of these types
of laws in the modern Indian Democracy.

This paper also puts light on the case of Union of India V. Paul Nanickan and
Another to dwell deeper in the concept of Preventive detention Laws and to know
the Preventive Detention Laws are serving the needs of people or just the
government.

Keywords: Preventive Detention Laws, Relevance, Democracy, Right to Life and Liberty, Right
against Detention

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INTRODUCTION

All Laws derive power from the Constitution and the constitution derives its power from WE
THE PEOPLE OF INDIA. Constitution was made to give the people rights and limit the powers
of people in power. Apparently, the purpose of bringing such constitution into existence is
accomplished.

But, it is just what appears.

What if someone tells you that the constitution itself says that the government can take away
your fundamental rights from you at its will and you will have no recourse other than just being a
victim of what the government chosen by you does to you. And this is absolutely true. Makers of
the constitution themselves and intentionally made constitution in a way which gave a number of
rights and took them away at the same time, which makes people wonder whether the
constitution is made for the people or for the government in power.

It is an irony that, the people of India give constitution the power and elect the government to
rule and the same government is using the same constitution to take away the life and liberty of
the same people. Is this the right thing happening? Moreover, fundamental rights are one of the
basic structures of the Indian Constitution and if some Laws are encroaching upon the basic
structure of the constitution has to be quashed. So, do the PDAs stand the test of constitutionality
in today’s context?

Though there were some reasons for introducing these laws, are they needed any more or are
they just serving the purpose of the ruling governments? Even if they are needed, are these laws
being implemented for the cause they were established?

We live in a modern Indian democracy, life and liberty is the most important right one can have
and the PDAs are encroaching upon these rights very legally and many people are not even
aware of these provisions existing in the ‘sacred’ constitution that people feel proud upon.

Let’s have a look at the meaning, history, usefulness, need, relevance, and Constitutionality of
the Preventive Detention Laws of India.

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Objective

• To know the Meaning of Preventive Detention Laws.

• To know the history of the Preventive Detention Laws.
• To Know the relevance of PDLs in contemporary scenario.
• To analyze the case of Union of India V. Paul Nanickan.
• To know the Constitutionality of such Laws.

Research Questions

• What Preventive Detention Laws actually mean?

• What is the History of Preventive Detention Laws in India?
• What is the Relevance of the Preventive Detention Laws in Contemporary India?
• What were the important observations in the case of Union of India V. Paul Nanickan?
• What is the constitutionality of the Preventive Detention Laws?

Hypothesis

Preventive Detention Laws in India are still in effect when there is no such need of such laws,
not for the betterment of the people of India but for the ruling government, which helps the
ruling party to act on it own will to curtail the liberty of the people of its own nation. The
Preventive detention laws of India are very exploitive in nature and gives the government too
much power which makes it very easy for the ruling party to infringe anybody’s right that too
legally. These laws are against the very concept of principles on which the Laws of the land
depend.

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Review of Literature

• Preventive Detention:
This article was written by Jerry Norton, and is available on Britannica.com. This article
is a very good source of secondary information and tell a lot about the preventive
detention laws. Mainly, it very beautifully specifies that what exactly does the preventive
detention laws mean and how they are operational around the world. It is a very good
document on the subject it covers.
• History of the Preventive Detention Laws in India:
This article is available on egyankosh.ac.in and provides a very clear and lucid
description of the history of the preventive detention laws, with special reference to India.
It is very precise and to-the-point document with clear and lucid wording. This document
has been more valid and legitimate, had they provided the name of the author, that would
have attached more value to it.
• Article 22 - Calling Time on Preventive Detention:
This article was written by Abhinav Sekhri, and is available on HeinOnline research
database. The author in this has raised very important points which were very unique and
I have not come across before reading this. It has argued that how it is a myth that
constitution is safeguarding our rights. It was a very interesting document to read and I
would recommend it to every student of law to have a helicopter and third person view on
the concerned subject.
• Union of India V. Paul Nanickan and Another:
It is a very famous case on the subject of preventive detention laws in which the supreme
court has given a judgment on the same lines on which the previous cases have been
decided, but has highlighted very important observations which can prove to be very
useful in the right development of the national laws which are in the benefit of general
public. It has also proved to be a very good example for discussion on the concerned
subject.

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Preventive Detention Laws

The Preventive Detention Laws, as the name suggests, are used for prevention of some greater
harm to the society at large. These have the preventive principles. In Punitive Detention, some
rights of a person are taken away, after a fair trial has been awarded to him, and his/her guilt has
been proven beyond reasonable doubt. Even after the detention, the person gets his/her rights as
per the laws for prisoners and also has access to the lawyers with many fundamental rights with
in the ambit of laws are also available to them, this is what happens when normal laws are
applies in normal circumstances.

A lot of things change when a person is booked under the Preventive detention Laws.

When we are talking about the preventive detention laws of India, and also in some other
countries. In these laws, a person is booked if the ruling government has mere suspicion over the
person that he/she might have done the crime. In these laws, a person can be detained in the
prison even without a fair trial is held for him and he is proven guilty beyond reasonable doubt.
A fair trial is also a far cry when someone is booked under such laws, under these provisions a
person can be detained even without presenting him/her in front of a judicial magistrate, easily
for a period of 3 months, and that also can be extended if the government wants.

Under these laws, one can not be talking about rights, almost all of the fundamental rights are
taken away from the person who is detained under these laws.

The matter of concern is that, all this happens with a person without a trial, that means there can
be a very great possibility of a person detained under these laws being innocent, which means
there is a possibility of rights being taken away of a person who has not committed any crime
under the law. So, this is what we mean by preventive detention laws of the land established
under the procedure established by law.1

1Jerry Norton, Preventive Detention (Last Visited 15/03/2021, 12:05 PM)

https://www.britannica.com/topic/preventive-detention

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History of Preventive Detention Laws

In India, and the Indian Constitution many concepts and fundamentals have been borrowed from
other nations, and many acts and laws of the government were kept intact as there were in the
colonial rule by the British Regime in India. We have heard that many of our freedom fighters
have spent so many years of their life in jail, and they were detained without any trial by the
court of law. Those detentions were done on the basis of preventive detention laws made by the
British to rule the country and suppress any democratic uprising in India.

Preventive detention laws were brought by british in India around 1818 to imprison anyone who
raise voice against the british rule in India, these laws ere introduced to suppress voices, do
exploitation, prevent India from getting independence, keeping people inferior the regime of
british, and to take away the natural and human rights of the people of India.

The matter of grief and concern is that the laws which were so exploitive in nature used against
india’s independence, which the britishers not even implemented in their own nation in this heart
and soul, are being implemented and operation in the independent India too.

After India got independence, and soon after the constitution got enforced on the nation and the
people of India, the first version of preventive detention laws was implemented in the nation just
after one month of the constitution coming into power. The first version was – The Preventive
Detention Act, 1950.

The act was moved by the then Home Minister – Sardar Vallabhbhai Patel, during the then
parliament session. This was moved because of the situations prevailing in the country at that
time, to upheld the unity, integrity, and laws of the nation. The preventive detention act, 1950
also contained a sunset clause in it, according to which such a law is being implemented in the
nation for just a limited period of time and to serve a specific purpose.

Once the purpose gets over and the time limit prescribed in the act gets over, the act will
automatically get repealed from the nation and it happened so, but after that, so many preventive
detention laws were enacted in the nation by the ruling governments of different times without

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any sunset clause in them and without any temporary provision in them, which gave the ruling
government a free hand over the people of the nation, and gave the laws a permanent place in the
Indian system of jurisprudence. 2

Need, usefulness, and Relevance

It is very important to understand that the constitution is the highest source of authority in India
from where every law takes it power and the constitution itself derives its power and legitimacy
from, WE THE PEOPLE OF INDIA.3

In a democracy, the state is for the people not the people for the state, but when we look at the
concept and fundamentals of the preventive detention laws, they are made for the state and not
for the people of the state.

When the preventive detention laws were introduced in the nation after the independence, the
country was in a nascent state and surrounded with so much turmoil, both inside and outside the
nation, so it became vey important at that time to give more power into the hands of the
government to control the situation at hand and maintain the law and order so that the system
works.

Dr. B. R. Ambedkar also commented on the preventive detention laws of the nation and his
statement was: -

"in the present circumstances of the country, exigency of liberty of the individual should [not] be
placed above the interests of the State”4

2 History of the Preventive Detention Laws in India, Preventive Detention Laws (Last Visited 15/03/2021, 5:15 PM)
http://egyankosh.ac.in/bitstream/123456789/39085/1/Unit-1.pdf
3 Constitution of India, 1950, Preamble.
4 Abhinav Sekhri, Article 22 - Calling Time on Preventive Detention, 9 INDIAN J. Const. L. 173 (2020)

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In a context, implementing the preventive detention laws can be justified, but that too to just
some extent, and to some extent it can be said that preventive detention laws were useful and
relevant at that point of time.

But, when we look at the present scenario of India, the situations and circumstances are not
exigent for the need of preventive detention laws in the country. the laws in place right now,
other than the preventive detention laws are sufficient to handle the adverse situations in the
country. in contemporary India, there is not any needed for the preventive detention laws, rather
there is need to abolish these kind of laws to strengthen the democratic potential of the nation
and save lives and liberties of the people of India.

Constitutionality of the Preventive Detention Laws

Just like other constitutions around the world, the constitution is based on some fundamental
principles, or we can say that our constitution out to based on some principles which are
promised to the citizens as well as people in India. these principles and promises are also called
the basic structure of the constitution of the constitution of India.

The supreme court has also set principles in the Kesava nanda bharti case, that laws cannot be
made which changes the basic structure of the constitution, and any law found against the basic
structure will be struck down. It is indisputable fact that the fundamental rights are among the
basic structure of the constitution of India, especially the right to life and liberty.

A constitution is made for the people of India, and it derives its power from the same, then how
the same constitution can have the provisions which can curtail the rights of the people of India,
and that too in such brutal manner.

A fact again is to be reiterated, that state functions for its people, it is not like that the people
function for the state, they cooperate, but that cooperation cannot be done at the lives of the
people of India. In such a way, the preventive detention laws of India, fails the constitutional

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validity test, and must be abolished as soon as possible to save the lives of people of India as
well as anybody that comes to India. 5

Problems with the Preventive Detention Laws

As the Preventive detention laws as in effect in India since the enforcement of the constitution on
the people of India. Here are some of the limitations and problems with the preventive detention
laws of the nation: -

• Control with the Executives: -

When we look at the present preventive detention laws of the country we can see that too
much power has been conferred on the executives, which is making these laws so much
exploitative in nature, as it gives a free hand to the ruling government to treat the people
in detention in the way they want to, without much interference or check of the judicial
system.

• Power to the states:

As under the different list of powers and jurisdictions of the center and state, in the
constitution, the power of making preventive detention laws has been conferred to both -
to the center government as well as to the state government. This is making this system
more complex and harder to sort, as this conferring of power to the state governments has
led to the so many different states making different versions of preventive detention laws
under their state jurisdiction, which is making it easier for states to make their own laws
and detain-people-illegally legally.

• Constitutionality:
As it is discussed in the earlier section of this paper, that the preventive detention laws og
the nation do not hold water, when scrutinized under the view of basic structure, the

5 Id.

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preventive detention laws does not hold water, and it becomes very difficult to justify
these laws, as the right to life and liberty is one of the most important fundamental rights
our constitution gives us and these preventive detention laws directly takes away the
liberty and many a time life of many people too. This is one of the paramount problems
with the preventive detention laws and also theoretical one too. This problem cann only
be solved if the preventive detention laws are abolished from the nation.

• Power Distribution:
When a law is talking about taking the paramount rights away from a person, the power
of doing this must be with very senior high ranked officer, but when we look at the
ground reality, even a district collector has the power to put charges of preventive
detention on a person. The power of imposing these laws should be restricted to only
higher and senior ranked officers and not at the district collector’s level. This is gives a
lot of way for infringement of rights to happen.

Union of India V. Paul Nanickan and Another, 2003

Specifications:

• Parties
Union of India (Petitioner)
Versus
Paul Nanickan and Another (Respondant)

• Date of Judgement
13/10/2003

• Bench
Justice Doraiswami Raju

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Justice Arijit Pasayat

Facts:

• Smt. Ratnamala was found with excess gold than the limit with her without informing the
authorities.
• She was also found with other materials such as cell phones and other articles without
any valid permission and documents.
• It was found that she was attempting to smuggle these items by concealing them under
the emergency lamp and wearing crude gold on body, without any declaration made.
• She was charges under Customs act, 1962 and foreign trade (development and regulation)
act, 1992.
• She was detained in order to prevent her from carrying out such activities in future.
• A writ petition was filed in the high court and it was claimed that the representation was
made to the state of Tamil Nadu, central Government, and to the ministry of finance.
• The high court saw no merit in the case and dismissed the petition.
• A review petition was filed in the hon’ble high court.
• The high court accepted that the representation was made to the president of India, and
there was an unexplained delay from there for representation to reach the government of
tamil nadu and union of India, because of this the High court quashed the order of
detention.
• An appeal was filed in the Supreme Court of India against the judgement of the high
court by the government of India.

The Judgement:

• For the first time in review petition a stand was taken that representation was filed before
the President of India, though in the writ petition it was stated representations were made
to the Government of Tamil Nadu as well as to the Union of India. This clearly

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constituted a suppression of fact and the High Court was not approached with clean hands
and fraud was practised.
• Secondly, it was not open to the High Court to substitute its original order by a fresh
order which is impermissible in a review application particularly on such grounds.
• Thirdly, the High Court having accepted that there was no delay in dealing with the
representation by the State Government and the Union of India after it reached them, it
ought not to have held that there was unexplained delay in dealing with the
representation.
• A person should not be allowed to take advantage of the concern shown by the courts to
protect personal liberty resorting to dubious and fraudulent methods to gain undeserved
benefits by such manipulations.

Personal Comments:

This judgement was a great example of how the preventive detention laws are being operative
and implemented in India. we can see that Smt. Ratnamala was detained just on the suspicion of
the authorities that she is smuggling; her crime was not proved in the court and she was not even
given the representation and was simply detained on mere suspicion. It was justified on the
ground that she ‘might’ indulge in unlawful activities if not detained, and what if she was not
smuggling at the first place at all, making her liable for smuggling is in the power of court and
not in the executive authorities. In this way only, people across the nation and even across the
world are detained without a trial which must be stopped.

Findings

• The preventive Detention Laws are exploitive in nature.

• The Preventive detention laws are against the very principles of Democracy and
constitution which were promised to the people of India.
• Giving powers to states for making such laws are adding fuel to the fire.

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• Preventive detention laws are giving government a way to take away people’s-rights-
illegally legally.
• The Preventive detention Laws are not relevant in the modern Indian Democracy.
• The preventive detention Laws must be repealed as the have now become functus officio.

Solutions

Art 21 provides for right to life and liberty and takes away it at the same time by talking about
the ‘procedure established by Law’6, this is a very broad term in itself, which is allowing the
ruling government(s) across the nation to make as many procedures to curtail the right to life and
liberty in India. This phrase in Indian constitution must be narrowed down, if not removed, to
protect the lives and liberties of the people of India from the government elected by them.

Also, power to make preventive detention laws must be taken back from the states to control and
restrict the misuse of such exploitive power, also only the senior and high officials ranking
officials of the government must be allowed to detain someone under the preventive detention
act.

The Conclusion

It is evident now that, preventive detention laws are against the very spirit of democracy and
principles on which our democracy was made and enacted. It is leading to so much exploitation
by the ruling government and people are losing their lives and liberty without getting trials or
even without being presented in front of a judicial magistrate. These laws don’t even stand in the
constitutionality test of the constitution and judiciary has very less power to interfere in these
matters.

6 Constitution of India, 1950, art. 21.

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Though these laws could be justified, to some extent when these were established in the
constitution, but in the contemporary modern democratic India, these laws have become functus
officio and lost their relevance, which makes it necessary to repeal them for the sake of lives and
liberties of the people of India and for the sake of Justice.

References

• History of the Preventive Detention Laws in India, Preventive Detention Laws (Last
Visited 15/03/2021, 5:15 PM) http://egyankosh.ac.in/bitstream/123456789/39085/1/Unit-
1.pdf

• Constitution of India, 1950, Preamble.

• Abhinav Sekhri, Article 22 - Calling Time on Preventive Detention, 9 INDIAN J. Const.

L. 173 (2020)
• Jerry Norton, Preventive Detention (Last Visited 15/03/2021, 12:05 PM)
https://www.britannica.com/topic/preventive-detention
• Constitution of India, 1950, art. 21.

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