The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The basis of detention is the satisfaction of the Executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction, on the other hand, is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case a person is punished to prove his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which is necessary for reasons mentioned in provision provided in the relevant Act to prevent crime.With regard to the rights guaranteed to a detenue under Article 22(5), the Court said, “Article 22(5) shows that law as to detention is necessary. The requirements of that law are to be found in Article 22. Article 22 gives the mandate as to what will happen in such circumstances,but, if there be a law of preventive detention empowering the authority to detain a particular offender in order to disable him to repeat his offences, it can do so, but it will be obligatory on the part of the detaining authority to formally comply with the provisions of Article 22(5) of the Constitution. [Dropti Devi & Anr Versus Union of India & Ors 2012].
Preventive detention and Constitution of India
On the 26th day of November 1949, People of India resolved to constitute India into the Sovereign Democratic Republic and in the Constituent Assembly adopted, enacted and gave to themselves an instrument of social contract – the Constitution of India – which became effective from January 26, 1950. The Constitution of India is the fountainhead of all laws and provides the machinery by which laws are made. Any statutory law, in order to be valid, must be in conformity with the constitutional requirements. There cannot be any departure or deviation from this principle. For the purposes of the present matter, it is not necessary to deal with the diverse features of the Constitution elaborately, suffice, however, to state that Part III that provides for fundamental rights is the most important chapter insofar as individuals and citizens are concerned.
Article 12 for the purposes of Part III defines ‘the State’.
Article 13(2) mandates that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of this provision shall be void to the extent of the contravention.
Article 14 states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Article 19 protects certain rights of the citizens. It provides that all citizens shall have the right – (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions or cooperative societies; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India and (g) to practice any profession or to carry on any occupation, trade or business. The above clauses (a), (b), (c), (d), (e) and (g) are, however, subject to restrictions set out in Article 19(2)(3)(4)(5) and (6) respectively.
Article 21, which is the most sacrosanct and precious of all other Articles insofar as an individual is concerned, guarantees the protection of life and personal liberty. It mandates that no person shall be deprived of his life or personal liberty, except according to procedure established by law.
Article 31B saves challenge to the Acts and Regulations specified in the Ninth Schedule on the ground of inconsistency with, taking away or abridging any fundamental right. It was brought into statute by the Constitution (First Amendment) Act, 1951.
Article 22 is in two parts. The first part that comprises of clauses 1 and 2 is applicable to those persons arrested or detained under a law otherwise than a preventive detention law. The second part that comprises of clauses 4 to 7 applies to persons arrested or detained under the preventive detention law.
There appears to be a consistent line of cases of this Court beginning from 1950 itself which says that preventive detention can constitutionally operate. In A.K. Gopalan v. The State of Madras, which was decided by this Court within few months of coming into force of our Constitution, the Court upheld the constitutional validity of Section 3(1) of the Preventive Detention Act, 1950 on the touchstone of Articles 13, 14, 19, 21 and 22 of the Constitution
The development of Law
The provisions of FERA and FEMA and the preamble of COFEPOSA and submitted that dealings in foreign exchange by a person other than authorised persons/dealers have serious and deleterious consequences. The foreign exchange is the most precious reserve for national economy and necessary for the economic security of the State and illegal and/or unaccounted transactions through hawala have vide ramifications and are definitely prejudicial to the conservation and augmentation of foreign exchange and since the need for conservation and augmentation of foreign exchange resources of the country continue to exist, preventive mechanism laid down in COFEPOSA warrants its continuance and there is nothing unconstitutional about it.[Dropti Devi & Anr Versus Union of India & Ors 2012].
That the constitutional validity of COFEPOSA had already been upheld by a 9-Judge Bench of this Court in Attorney General for India and others v. Amratlal Prajivandas and others.
Legal position with regard to preventive detention existing in USA, England, Australia and Germany.
Excerpts from “The Limits of Preventive Detention” by Rinat Kitai –
USA and in England law regarding preventive detention does not exist except during war time. He, however, did submit that in United States v. Anthony Salerno and Vincent Cafaro13 the constitutionality of pre-trial detention on the ground of dangerousness under the Bail Reform Act of 1984 was upheld and after Anthony Salerno and Vincent Cafaro 13 preventive detention laws were adopted in number of U.S. States but the said procedure has been used sparingly and in U.K. under the Prevention of Terrorism (Temporary Provisions) Act, 1984 a person may be detained upto 7 days. In
In Australia preventive detention orders and prohibited conduct orders are two mechanisms available under criminal law for addressing terrorism concerns and dangerous sex offenders. The preventive detention order permits detention of a person for a short period of time ( upto 48 hours) subject to certain procedural rights. In Germany in 1998 law for the prevention of sexual offences and other dangerous criminal acts has been enacted.
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