The preventive detention under COFEPOSA Act,1974, National Security Act, 1980, Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980 (PBMSECA) and Prevention of illicit trafficking in Narcotics Drugs and Psychotropic substance Act, 1988 (PITNDPSA) –
The preventive detention laws are made by the Government of India considering the alarming situations that some offences which adversely affects the national interest and public at large. Therefore, to curtail such offences it becomes necessary to detain such persons who are directly or indirectly related with such offences and stern actions must be taken by the Government Regulatory bodies.
Hence, detaining authorities are enshrined with enormous powers under COFEPOSA, NSA, PBMSECA and PITNDPSA Act. Under these Acts detaining authorities are empowered on the basis of their satisfaction that individual person who is indulge in any of the offence falling under the ambit of abovementioned Acts is required to detain as he can adversely affect the public interest or national interest and detaining authority is not under obligation to give reasons for such preventive detention.
The objective of Government of India to bring these laws is as follows:
COFEPOSA Act: The act was brought with the objective for the conservation and augmentation of foreign exchange and for the prevention of smuggling. To safeguard the national interest and to curb down the smuggling activities, it became necessary for the government to curb the illegal activities which were taking place in large scale by violating the foreign exchange regulations. In other words, the Act was brought in as a tool to prevent such clandestine activities by detaining such parasites who are denting the national economy.
The preamble of COFEPOSA is “An act to provide for preventive detention in certain cases for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities and for matters connected therewith”.
National Security Act, 1980 : The Act empowers the officers of central government as well as State Government to detain any person to prevent him from acting in any manner prejudicial to the security of Nation. The act also gives power to the governments to detain a foreigner in a view to regulate his presence or expel from the country.
According to Section 50 of the Criminal Procedure Code (CRPC), any person arrested has to be informed of the grounds of arrest and has the right to bail. However, under National Security Act, none of these rights are available to the person detained. The government holds the right to conceal information which it considers to be against public interest to disclose.
Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980: This Act empowers the officers of Central government and State governments to detain persons who seek to control the production, supply or distribution of, or trade and commerce in any commodity which is an essential commodity as defined under the Essential Commodities Act of 1955 with the purpose of making a gain which would directly or indirectly defeat the purposes of the Essential Commodities Act, 1955.
Prevention of illicit trafficking in Narcotics Drugs and Psychotropic substance Act, 1988: Section 3 of this Act provides for the preventive detention of traffickers by both Central government and State Government officers. The act provides prevention detention of any person with a view to prevent him from engaging in in illicit traffic in narcotic drugs and Psychotropic substance. The act was brought to deal with the alarming problem of trafficking and drug dealing.
Bare perusal of all these acts makes it very clear that the provisions of all these Act are very stringent and State have been burdened with enormous power in as much as State has complete liberty to curtail the most sacred human right i.e his personal liberty.
The protection of life and personal liberty is guaranteed under Article 21 of Constitution of India. Whereas Article 22 guaranteed the arrested/detained person about his fundamental rights. It is important to note that so far individual rights are concerned they are well protected and properly recognized by the Constitution of India but such rights can be curtailed to protect the National Interest. Therefore, to protect such National interest or right of public at large these stringent Acts were brought in by the Government of India by dealing such persons sternly through preventive detention and without even giving any opportunity of trial.
Curtailment of movement of such people detained under all these Acts who are not only denting the economy but also hampering the interest of public at large shall be dealt in a very strict manner but also considering the justiciability of Act. Authorities who are enacted with such powers shall use such powers after scrutinizing the facts of the case and keeping in mind that the person who is in the clutches of such stringent Act should not be deprived of his fundamental right as guaranteed under Article 22 of Constitution of India and the detaining authority should not stretch its power just to make out its case.
The reason to brought in all these strict Acts is to safeguard the National Interest and therefore the Courts dealing with cases booked under abovementioned Acts should scrutinize each case very carefully and every single evidence related to such case shall be considered and dealt with proper application of mind.
In the case of Khudiram Das v. State of Bengal 1975 2SCR832 the Hon’ble Apex Court dealing with the detention order made under Sec. 3 of Maintenance of Internal Security Act, 1971 has exhaustively explained about the subjective satisfaction which has to be arrived at by the detaining authority as a prerequisite in making detention order.
Further, in the case of Krishna Murari Aggarwal v. UOI 1975 Cril J1648 the Hon’ble Apex Court held that powers enshrined in such stringent acts by detaining authority has got to be exercised properly and discretely and not in casual or cavalier manner .
In the case of Anwar Abdulla and Ors v. UOI the Hon’ble Apex Court considering the justiciability and alarming issues of national interest had laid down the legal Principles which govern satisfaction to be arrived at by a detaining authority in making a detention order under a preventive detention law and the reviewability of such satisfaction by Courts:
(1) ‘Satisfaction’ arrived at by the detaining authority in having made the detention order must have been a pre-requisite satisfaction.
(2) Satisfaction arrived at by the detaining authority on the basis of materials must have been such which a reasonable person could have possibility arrived at on the basis of the same material.
(3) Satisfaction arrived at by the detaining authority in having made the detention order must have been grounded on materials of rationally probative value.
(4) Materials on the basis of which satisfaction was arrived at by the detaining authority to detain a person, must have been such as which a human being could say that there was rational nexus or connection between the materials and the person to be detained for preventing him from indulging in prejudicial activity.
(5) Satisfaction of the detaining authority on materials which constitute the foundation for exercise of its power of detention not being susceptible for objective determination intended to be judged by subjective standards, could be subjective satisfaction itself inasmuch as the satisfaction which could be arrived at, ought to be founded on materials which give rise merely to suspicion of the possibility of the person to be detained indulging in prejudicial activity sought to be prevented.
(6) Subjective satisfaction arrived at by the detaining authority should have been neither the one which no reasonable authority could have been arrived at nor the one arrived at by the authority in a casual or cavalier manner.
(7) Subjective satisfaction arrived at by the detaining authority in making the detention order cannot be regarded to be wholly immune from judicial scrutiny and judicial reviewability. Instances of satisfaction arrived at by the detaining authority in making detention orders which could become the subject of judicial scrutiny and judicial reviewability, could be the following :
(a) Where the subjective satisfaction arrived at by the detaining authority in making a detention order is challenged as the one arrived at without application of the authority’s mind to the material placed before it as would have enabled it to find rational nexus or connection between such material and the impending prejudicial activity of the person to be detained;
(b) Where the subjective satisfaction arrived at by the detaining authority in making the detention order is challenged on the plea that there was no time or there was hardly any sufficient time, which could have possibly enabled the detaining authority in applying its mind to the materials placed before it having regard to their nature and volume;
(c) Where the subjective satisfaction arrived at by the detaining authority in making the detention order is challenged as the one not arrived at by application of its independent mind, but on the satisfaction of an outside agency;
(d) Where the subjective satisfaction arrived at by the detaining authority in making the detention order is challenged as the one arrived at, the dictates of some outside authority or agency;
(e) Where the subjective satisfaction arrived at by the detaining authority in making the detention order is challenged as the one arrived at by dishonest exercise of power by the detaining authority;
(f) Where the subjective satisfaction arrived at by the detaining authority in making the detention order is challenged as the one arrived at by the detaining authority for an improper purpose, that is, a purpose not contemplated by the statute;
(g) Where the subjective satisfaction arrived at by the detaining authority in making the detention order is challenged as the one arrived at by the detaining authority when it was under a disability recognised under law to apply its mind;
(h) Where the subjective satisfaction arrived at by the detaining authority in making the detention order is challenged as the one made due to the application of a wrong test or misconstruction of a statute;
(i) Where the subjective satisfaction arrived at by the detaining authority in making the detention order is challenged as the one arrived at by the detaining authority without due regard to matters required to be taken into account by the statute in reaching such satisfaction; and
(j) Where the subjective satisfaction arrived at by the detaining authority in making the detention order is challenged as the one which could not at all have been arrived at by any reasonable person in the facts and circumstances of the case.
For making preventive detention under such stringent Acts, it is the utmost responsibility of the Detaining authority and Courts who are dealing with such detention orders that they shall not pass any detention order without proper scrutinizing the facts and every single evidence which has been placed by the detenu to prove his innocence. Further it is important for the detaining authority as well as for the Courts that the preventive detention and orders for continuation of such detention should not be based on the illusionary basis but shall be made only and only when they come to the conclusion after complete satisfaction that such person is necessary to detain to protect the national interest and public interest otherwise the powers under such draconian acts would not only damage the guaranteed interest of personal liberty provided in the Constitution of India but also seriously hamper the faith of the public from the judiciary.