Preventive detention: A constitutional tyranny


Though the issue regarding Pilibhit MP Varun Gandhi’s detention under the National Security Act (NSA) seems to be settled after the Supreme Court’s disposal of the petitions filed by Mr Gandhi and the Uttar Pradesh government, the question remains: why do executive authorities misuse the same without proper application of mind?

Political reasons apart, it was clear that the state government tried to keep him under continuous detention for his alleged hate speech. This was highly deplorable. For, preventive detention is no substitute to the normal procedure established by law.

There is a clear distinction between preventive and punitive detention. While the former is aimed at preventing a person from doing anything that may be detrimental to public order or national security, the latter comes into picture when a person is alleged to have committed an act in due disregard of law. Though preventive detention is an anathema to rule to law, it is a necessary evil.

Though preventive detention is to be used sparingly, in the absence of proper safeguards, it is grossly misused. As this is an administrative order, the scope of judicial review is limited. The consideration is limited to the legality of the decision-making process and not the legality of the order per se.

The Supreme Court has held that it is the existence of material and not the sufficiency of material which can be questioned. Moreover, any administrative action can be questioned only on three grounds — illegality, irrationality and procedural impropriety. Unfortunately, the courts have been slow as regards intervention in such matters.

Thus, the only remedy for a victim is to move a habeas corpus petition in the High Court under Article 226 or moving the Supreme Court under Article 32 praying for protection of his/her fundamental right. But this takes at least six months until the case is listed before the court. Of course, Mr Varun Gandhi was able to promptly arrange a battery of lawyers to defend his case and obtain parole from the Apex Court (with an extension later) to file papers and join the fray.

A three-member Advisory Board of the government examines whether the detention of a person is justified or not, but there are shortcomings. For instance, its proceedings are in camera except for that part of the report (which is the Board’s opinion). There is also a denial of the detenus’ fundamental right to be represented by a lawyer before the Board. How can a layman fight his case before the board without an advocate’s help? All this is a violation of one’s human rights. The Centre should review the impugned provisions.

The National Commission to Review the Working of Constitution (NCRWC) said that preventive detention, being a detention without trial, is a negation of the rule of law and the principle of fair trial. It proposed that Section 3 (44th Amendment) Act, 1978 which tend to amend provisions of Article 22 (4) be brought into force with a further amendment that the Advisory Board should consist of the Chairman and members who are all serving High Court judges. Further, it suggested that such detention should not exceed six months.

As prevention detention is a clear infringement of one’s fundamental right, the decision on detention should be cogent which can stand the test of judicial scrutiny. It is sometimes wrongly professed that a detenu would not be entitled to bail in such situations.

The higher courts have reviewed the prevention detention against a person even at pre-execution stage and ordered his/her release. The Apex Court has held that no absolute immunity could be claimed by the authorities as to the decision arrived at as the exercise involves fundamental rights of citizens, freedom of movement and pursuit of normal life and liberty.

In addition to higher judiciary, powers must be bestowed on at least the court of sessions to grant immediate interim relief to a victim of preventive detention in appropriate cases. The government should rework and reframe the provisions as the law is not bad per se. For ordering such detention, highest standards of proof are a must. Preventive detention laws need to maintain a balance between the human right of liberty and security of the nation or maintenance of public order.

In case the detenu is found unlawfully detained, we need to have a provision for adequate monetary compensation by the state though it cannot adequately compensate the detenu’s mental agony.

The Law Commission would do well to examine the entire gamut of preventive detention afresh in the light of contemporary needs and requirements and to help check its misuse. Until such safeguards are debated and incorporated in the Constitution, let the Apex court lay down elaborate guidelines to be followed by the state authorities.

The National and State Human Rights Commissions need to play a pivotal role whenever cases of abuse and misuse of such powers are brought to their notice either by the aggrieved party or through their suo motu cognisance. Prevention detention should be incorporated as a separate chapter in the Criminal Procedure Code.

The writer is Advocate, Punjab and Haryana High Court



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