Introduction
Preventive detention is perhaps the State’s most contentious instrument. If punitive detention is imprisonment as a result of a convicted crime, preventive detention is holding someone in prison without trial, on the assumption that the individual might commit a crime in future. Although preventive detention is defended as an unavoidable step to the point of ordering the public and preserving the national security, its deployment delivers serious threats to people’s rights, power abuse, and the weakening of the rule of law.
Legal Frame-work of Preventive Detention
Preventive detention is a case of deliberate deprivation of liberty without the intervention or judgment of the courts on the existence of reasonable cause of the criminal activity. This is marked by the State’s attempt to argue the imperative of such deprivation in the interest of the public order or security of the country or even in the interest of the maintenance of essential supplies.
In India, preventive detention has been given unambiguous constitutional status and the Constitution makers went on to give Article 22 which contains many safeguards against arrest and detention except in cases of preventive detention. Therefore, giving two wings to the same bird and that the bird is a liberty and the wings are liberty and security are a constitutional helmsmanship.
In addition to the Constitution, a number of laws make provisions for preventive detention: National Security Act (NSA), Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), and the Unlawful Activities Prevention Act (UAPA).es that allow the executive branch to detain people for a certain amount of time without charging them formally on the grounds of subjective satisfaction rather than evidence.
Requirements for the detention of the person is that the person shall be informed of the grounds of detention, be entitled to make a representation against the detention order and the order should be reviewed by an advisory board. However, the court chose the States interest over the rights of the detainees so that the detainees could effectively challenge the detention.
Why do we need preventive detention?
Preventive detention is justified if national security, public order, and essential services are at risk. It is counterproductive in the scenario of terrorism and state threat to wait for the crime to happen since at that time the damage would be irreversible. Therefore, preventive detention acts as a pre-emptive attack.
The argument at the policy level is that preventive detention is a mechanism which is used by authorities to function without delay in such emergency situations where the elements available for prosecution are not substantial but intel indicates that the threat is very high. In short, the tool is used to address the complexities of security and the rapidly evolving environment of it.
Practice and Implementation
In reality, preventive detention laws are often enforced by the executive such as district magistrates and police officials. Since their orders are mostly based on confidential reports and intelligence inputs, the judiciary faces a real challenge in scrutinizing them.
While being a fresh addition to toolbox of executive, preventive detention has been used time and again to deal with even minor public order issues, political dissents and in some cases, routine administration. Clearly, this point of using it as a shortcut has led to the abuse of this tool to the extent that what was once a privilege has gradually and dangerously become an ordinary law enforcement instrument.
In its efforts to prevent arbitrary trial, the judiciary has ordained strict adherence to the procedural requirements, the necessity of application of mind and the emphasis that preventive detention must not be a substitute of criminal law. On the other hand, the reviewing role of the courts is limited to the extent that they generally do not ascertain the sufficiency of material forming the basis of the detention order.
Abuse and Misuse
Among the various points that are raised against preventive detention, its misuse tops the list of critics. As the action is taken on suspicion and the accused is kept in chains before being even proved guilty, with this, the range becomes very wide for the illegal and wrongful acts. For instance, the State may use a preventive detention to politically silence its MP, to suppress dissent with the people and to even persecute the weakest sections.
A further worsening of the problem is caused by non-transparency in the decision-making process. The reasons for detention are intentionally kept vague and the requisite hiding of essential information make it impossible even to effectively challenge the detaining order. Quite frequently, the detainees are ultimately freed after being locked up for long periods without any formal charges being laid against them thus suggesting their detention could be unjustified.
Last but not least, the accompaniment to wrongful preventive detention is the huge and the gravest impact it has on the psychological state and social relations of the detainees and their respective families besides of course cutting them off from life. Being terminally arrested is a double injustice in that the person is denied his/her liberty and is defamed at the same time. When no one can be held responsible for wrongful detention it is injustice raised to the power of two.
Weighing Security and Liberty
Both are indispensable. The legitimate will of the State and the fundamental human rights must each be weighed for their desirability and need. Only a few times will preventive detention possibly be allowed but these times need to be very well defined.
First and foremost, the ambit of laws on preventive detention must be very specifically demarcated so as to restrict their use up to the very last genuine instance of threat to national security and public order. Fuzzy and loose grounds for detention must be avoided.
Secondly, due process must meet adequate procedural safeguards. Apart from only a few and clearly well justified exceptions, detainees have the right to be given all the information necessary for them to challenge their detention. They should be given access to legal assistance and regular hearing.
Thirdly, empowerment of judicial control is needed. In addition to procedural compliance, Courts should lay more and more stresses on the aspects of reasonableness and necessity of the detention.
Last but not least, introduce accountability mechanisms. Wrongful or malicious detention must be met with consequences that include but are not limited to victims’ compensation.
Conclusion
Preventive detention is a conundrum in a democratic setting–a double edged sword that can be a protector of the State and a destroyer of the individual’s freedom. Though preventive detention can be considered a legitimate course of action in certain cases, the wrongful use of the same results in the collapse of those very principles that the law envisages to uphold.
A developed legal system is characterized by ensuring that preventive detention stays as rare as exceptions. A natural accompany is a thriving democracy. Constantly guarding the rule of law, having strong legal and institutional safeguards in place and protecting human rights will surely be the markers to achieving that unattainable ideal of a just and democratic society where security and freedom exist in a healthy balance.
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