Historical and Comparative Perspective

India emerged as a democratic republic with the enactment of its Constitution on January 26, 1950. Chapter III of the Constitution guarantees fundamental rights to all citizens, while non-citizens are assured the protection of the right to life. The framers of the Constitution were guided by three cardinal principles—equality, justice, and fraternity—which resonate throughout its provisions.

In a democratic setup, freedom of expression and a free press are indispensable. Yet, maintaining societal order is equally vital. In a nation like ours, where political freedom is vast, a robust statutory framework is essential to ensure balance.

Criminal law in India primarily serves to punish offenders, rooted in the deterrent theory of jurisprudence. Each penal provision prescribes specific punishments—ranging from simple or rigorous imprisonment to fines or community service, the latter being a novel inclusion in India’s evolving penal code. Only a few sections under laws such as the BNS and NDPS address punishment for mere preparation to commit a crime.

The judiciary, executive, and legislature operate within distinct domains, though their functions occasionally overlap, sparking debate over jurisdictional boundaries. The judiciary is entrusted with delivering justice and punishing offenders through fair trials, guided by principles of natural justice and reasoned judgments. Legislatures, empowered by the will of the people, enact laws under their respective constitutional mandates.

The executive plays a pivotal role—not only in enforcing laws but also in maintaining societal order amidst complex dynamics. During the pre-independence era, the British enacted laws like the Bengal Rioters Act and the Preventive Detention Act to suppress India’s freedom movement, detaining thousands without trial through ruthless misuse of these statutes.

Historical Evolution of Preventive Detention in India

Preventive detention in India has deep colonial roots:

·      Defence of India Act, 1915 and Bengal Criminal Law Amendment Act, 1925 allowed detention without trial to suppress revolutionary activities.

·      Preventive Detention Act, 1939 was used extensively during World War II to detain political dissidents.

·      Post-independence, the Preventive Detention Act, 1950 was enacted and remained in force until 1969, during which over 100,000 individuals were detained.

India unified over 500 princely states, forming the seventh-largest country by landmass—spanning 3.2 million square kilometres. This monumental integration coincided with the traumatic partition under British rule. The newly formed nation faced immense political and economic challenges, including secessionist movements fuelled by forces hostile to the idea of India. Despite stringent laws, crime rates continued to rise.

Given limited resources, the justice system struggles to deliver timely verdicts. Thousands of serious cases are reported, diluting the deterrent effect of punishment. To address this, Article 22 of the Constitution provides for preventive detention, with safeguards requiring that detainees be informed of their rights and allowed to make representations to the detaining authority. An Advisory Board is tasked with reviewing such detentions.

To prevent various crimes, Parliament enacted several preventive detention laws, including:

·      COFEPOSA (1974) – targeting smuggling and foreign exchange violations

·      PITNDPS Act (1988) – addressing drug trafficking

·      National Security Act (1980) – maintaining public order and national security

·      State-specific laws like the Prevention of Bootleggers Act and the Jammu & Kashmir Public Safety Act (1978)

In Jammu and Kashmir, the Public Safety Act allows detention up to one year for threats to public order and two years for threats to state security. Following the abrogation of Article 370 on August 5, 2019, the Act has been widely applied, including against illegal migrants from Myanmar (Rohingyas).

Why Preventive Detention Laws Are Necessary in India

Preventive detention laws serve as a critical legal instrument in India’s governance framework, designed to safeguard national security, maintain public order, and preempt threats before they materialize. Their necessity arises from India’s unique socio-political landscape:

·      National Security & Internal Stability: India faces persistent threats from terrorism, insurgency, and cross-border infiltration. Preventive detention allows swift action against suspects when prosecutable evidence is still being gathered.

·      Smuggling & Drug Trafficking: Laws like COFEPOSA and PITNDPS target transnational criminal networks, enabling authorities to disrupt operations before they unfold.

·      Communal & Caste-Based Violence: In a diverse society prone to flashpoints, preventive detention helps contain potential instigators during sensitive periods.

·      Judicial Delays: With millions of pending cases, preventive detention offers a temporary mechanism to manage threats while legal proceedings are underway.

·      Constitutional Legitimacy: Article 22 permits preventive detention under specific conditions, with safeguards like Advisory Board review and the right to representation.

·      Global Precedents: Democracies like the U.S., U.K., and Australia also employ preventive detention in limited contexts, while authoritarian regimes use it more broadly.

When used judiciously and with robust oversight, preventive detention helps preserve peace, protect lives, and uphold constitutional order.

Comparative Perspective: How India’s Laws Stack Up Globally

India’s preventive detention laws are among the most expansive in democratic nations. Here's how they compare:

India stands out for embedding preventive detention in its Constitution, unlike most democracies that treat it as an emergency measure. Western nations impose strict time limits and require judicial oversight, while authoritarian regimes like China use it as a tool of political control.

Judicial Oversight & Safeguards

The Supreme Court of India has upheld the constitutional validity of preventive detention laws but insists on procedural safeguards:

·      Detainees must be informed of the grounds for detention.

·      They must be given an opportunity to make a representation.

·      An Advisory Board must review the detention within three months.

Despite these safeguards, critics argue that preventive detention is often used to bypass regular judicial processes, especially during political or social unrest.

Pawan Dev Singh, Advocate
High Court of J&K and Ladakh
Pawandev5@gmail.com
M : 94196 80323