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Preventive detention an anachronism

INDIA IS one of the few countries in the world where laws allowing preventive detention enjoy constitutional validity even during peacetime. In contrast, the European Court of Human Rights has long held that such laws are illegal under the European Convention on Human Rights regardless of the safeguards inherent in them to prevent their misuse.

Normal1y preventive detention is resorted to against enemy aliens in emergencies such as war when the evidence in possession of the detaining authority is not sufficient to secure the immediate conviction of the detenu by the normal legal process. In India the history of preventive detention dates back to the early days of the British rule when under the Bengal Regulation— III of 1818 (the Bengal State Prisoners Regulation) the government was empowered to detain anybody on mere suspicion. There was also Rule 26 of the Rules framed under the Defence of India Act 1939, again a war time legislation, which allowed the detention of a person if it was "satisfied with respect to that particular person that such detention was necessary to prevent him from acting in any manner prejudicial" to the defence and safety of the country (Emp. vs. Sibnath A. 1945 P.C.l56).

In the normal course of things preventive detention laws should have lapsed after India attained Independence; but perhaps as the Republic of India had its birth amidst the ravages of civil commotion involving huge loss of lives and property, the framers of our Constitution decided to retain preventive detention as a means to curb anti-national activity. Thus, the Preventive Detention Act was passed by Parliament in 1950. After the expiry of this Act in 1969, the Maintenance of Internal Security Act (MISA) was enacted in 1971, followed by its economic adjunct the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) in 1974 and the Terrorism and Disruptive Activities (Prevention) Act (TADA) in 1985. Though MISA and TADA have been repealed, COFEPOSA continues to be operative along with other similar laws such as the National Security Act (NSA) 1980, the Prevention of Blackmarketing and Maintenance of Essential Commodities Act 1980 and the draconian Prevention of Terrorism Act (POTA) 2002; not to mention laws with similar provisions enacted by the State governments.

It is unbelievable that our Constitution allows the government to pass preventive detention laws against its own citizens in the name of national security and "maintenance of public order" as per Entry 9 of List I and Entry 3 of List III of the Constitution. Assuming that the situation in the country at the time of Independence warranted such legislation, there is still no compelling wisdom in allowing these laws to continue particularly when the circumstances identified in the aforementioned Entries do not exist today. Moreover, in the absence of proper safeguards, preventive detention has been grossly misused, particularly against the Dalits and the minorities. For instance, in May last year a Division Bench of the Madras High Court penalised the Kancheepuram Collector and a police Inspector to pay a sum of one lakh rupees for illegally detaining one Thameem Ansari under the Goondas Act. (The Hindu, May 3, 2003).

Another law which is misused is the COFEPOSA, under which a person found in possession of contraband can be imprisoned without trial and bail for a period of one year despite the possibility that the person may have been duped into carrying the contraband, because, it is often seen that baggage carried by people in good faith on behalf of their friends or relatives contains smuggled goods and they end up in prison under COFEPOSA. Unfortunately, the law does not recognise innocence even in such genuine cases.

Normally before a preventive detention case is brought before the High Court, a three member Advisory Board headed by a sitting High Court Judge is constituted by the government to examine whether the detention is justified or not. Surprisingly, the proceedings of the Board are confidential except for that part of the report which expresses the opinion of the Board. But what is more appalling is the denial of the detenu's fundamental right to be represented by a professional lawyer before the Board. This is a blatant violation of human rights and goes against Article 22(1) of the Constitution, which says "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice." Thus in a majority of cases the Advisory Board upholds the detention due to lack of proper legal representation on behalf of the detenu.

It takes up to six months or sometimes even more before a habeas corpus petition is filed and taken up by the High Court, and till such time the detenu languishes in prison under extremely trying conditions. No wonder, as per the NHRC report released in May last year, out of a total of 3,04,893 prisoners in India, 2,25,817 are awaiting trial. In other words, more than 74 per cent of the total prison population are undertrials. It is therefore clear that preventive detention is harmful to a secular democracy like India as it is extremely prejudicial to personal liberty. As the existing laws are more than sufficient to deal with any offence, the government must seriously consider abolishing all preventive detention laws which have consistently exposed not only the shabby investigative skills of the sponsoring authority, but also their illogical and mechanical application by the detaining authority.

(The article was part of a memorandum presented to the Prime Minister, the Home Minister and Ms. Sonia Gandhi when the author met them on August 6 as a member of a minority community delegation led by the Prince of Arcot Nawab Mohd Abdul Ali.)

A. FAIZUR RAHMAN

Executive Committee Member, Harmony India

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