Preventive Detention – An Anti-Democratic feature of the Indian Constitution

One of the principles of modern democracy is that no citizen can be arrested by the State without cause.  This principle is violated by the Indian State on a widespread scale. The Constitution permits the legislature to enact laws providing for preventive detention.  The Armed Forces Special Powers Act (AFSPA), the National Security Act (NSA) and the Unlawful Activities Prevention Act (UAPA) are examples of central laws which permit arbitrary arrest and detention of people by the official security forces. There are also numerous state level laws, such as the Public Safety Acts and Acts that claim to target organised crime, which are also used for Preventive Detention.

The Indian state justifies preventive detention laws in the name of upholding national security from threats to the country from terrorism, insurgency, organised crime, etc. These laws give the security forces unchecked powers to arrest and detain citizens for indefinite periods. The ruling class has used preventive detention laws to criminalise intentions, beliefs and thoughts of people; and as a weapon to put down the struggles of the working class and people for their human, democratic and national rights.

The very concept of preventive detention is incompatible with a modern democracy.  In a modern democratic state, nobody can be arrested and detained for months or years on end, merely because the security forces suspect that he or she may commit a crime in the future.

In the name of protecting national security, citizens are arrested without any evidence of guilt.  The onus of proving innocence is imposed on the accused.  This is in complete violation of the principle that a person is innocent until he or she is proved to be a criminal, based on evidence and inquiry.  The Constitution of India, despite its democratic pretensions, permits such gross violation of citizens’ rights.

The anti-democratic laws in our country fully conform to Article 21 and Article 22 of the Constitution, which are part of the section on Fundamental Rights.  Article 21 says:

“No person shall be deprived of his life or personal liberty except according to procedure established by law”.

The phrase “procedure established by law” is used arbitrarily by the government in power.  It has been used time and again to justify preventive detention, police brutality, long trials and torture in jails against citizens and political groups which dared to oppose the policies and actions of the government.

Article 22 provides “Protection against arrest and detention in certain cases”. The first clause in this Article explains that no person who is arrested will be kept in custody without being informed about the grounds on which the arrest was made. The second clause adds that such a person should be produced before a magistrate within 24 hours. However, the third clause contradicts the first two clauses and says that they shall not apply if the person is an enemy alien or any person who is arrested or detained under any law providing for preventive detention.

This essentially means that the Constitution takes away the right of protection against arbitrary arrests if the person was arrested by a law passed by Parliament such as AFSPA, NSA or UAPA.

The fourth clause says that in the case of a person arrested under any one of the preventive detention laws, he or she cannot be detained for more than 3 months. But the same clause continues to say that if an Advisory Board is constituted then the 3 months limit will not be applicable!

Clause 5 of Article 22 states that when a person is detained under any law providing for preventive detention, then the authority should communicate to the person the grounds on which he or she was arrested.  However, Clause 6 of Article 22 clarifies that if the authority is of the opinion that it will harm “public interest” to disclose the grounds of arrest, then the authority is not bound by this requirement!

Finally, Clause 7 of Article 22 overrules all other clauses. It says that Parliament may by law prescribe the circumstances under which a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board.

One can clearly see that Articles 21 and 22 fail to guarantee the right against arbitrary detention (See Box).

In sum, the right of the State to arrest and detain anyone it chooses is one of the numerous anti-democratic features of the legal and political system inherited from British colonial times. Preventive detention is a weapon in the hands of the ruling capitalist class to suppress the struggle of any section of the people.

While pretending to uphold international standards of human rights and democratic rights, the Indian Constitution does not protect the right of citizens not to be arbitrarily arrested and detained.  On the contrary, it provides the authoritative legal basis for those in power to arrest whosoever they please.

Right against Arbitrary Arrest and Detention

After the defeat of fascism and the end of World War II, nations across the world discussed how principles of human rights should embody the right of citizens against arbitrary arrest and detention. Both the Declaration of Human Rights and the International Covenant on Civil and Political Rights recognise this right.

While debating on this right, it was accepted that the word ‘arbitrary’ meant not only illegal, but also unjust and incompatible with the principles of natural justice and human dignity.

The substance of the word was said to mean:

“any act which violated justice, reason or legislation, or was done according to some one’s will or discretion, or which was capricious, despotic, imperious, tyrannical or uncontrolled.”

Thus the term ‘arbitrary’ is not the same as the term illegal. While an illegal arrest or detention is almost always arbitrary, an arrest or detention which is in accordance with law may also be arbitrary.



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