Recent findings by the Supreme Court suggest that preventive detention provisions are remnants of colonialism and grant the state discretionary power. It was observed that they also pose a significant danger to an individual's entitlement to personal freedom, as protected by Article 21. Furthermore, apart from the remark made by the Supreme Court, there have been several instances where laws have been improperly employed, leading to the presentation of cases before the Courts. For the purpose of safeguarding public order or national security, the government has the authority to detain an individual in preventive custody without pressing charges or initiating a trial. The field of humanities has been a prominent subject of conversation since the General Assembly of the United Nations officially accepted the Universal Declaration of Human Rights on December 10, 1948. Human rights organizations have been diligently striving to safeguard these fundamental rights in numerous places across the globe. There are no constraints or prohibitions on the fundamental rights of individuals in any particular country. The right in question is a basic human entitlement that is universally applicable, irrespective of one's race, gender, sexual orientation, language, religion, political ideology, nationality, or any other characteristic. These rights should not be impeded by an autocratic government or a malevolent individual.
According to Jaques Maritian, "The human person possesses rights because of the very fact that it is a person, a whole, a master of itself and its acts and which consequently is not merely a means to an end but an end which must be treated as such." Preventative detention laws are present in all countries worldwide, however there is no universally agreed-upon definition of preventative custody due to variations in how the law is applied. Therefore, this paper will give a clear analysis of Preventive Detention And Violation Of Human Rights With Special Reference To Tamilnadu Act 14 Of 1982.
What is Preventive Detention?
Preventive detention means to detain a person so that to prevent that person from commenting on any possible crime. In other words, preventive detention is an action taken by the administration on the grounds of the suspicion that some wrong actions may be done by the person concerned which will be prejudicial to the state.
What are the Provisions related to Detention?
• Section 151 of Criminal procedure code provides a police officer may arrest a person without any orders from the magistrate and without any warrant, if it appears to him that the commission of the offence cannot be prevented without arrest.
• Article 22 of the Indian Constitution deals with the protection of rights in case of arrest and detention. It outlines certain safeguards that must be provided to individuals who are arrested or detained.
Here is a summary of the provisions of Article 22:
• Preventive detention finds a place in Article 22 of the Constitution.
• Preventive detention, is a detention without trial,
• It is a negation of the Rule of Law and the principle of fair trial.
• A person is deprived of his or her liberty and incarcerated on the basis of suspicion.
Article 22 grants specific fundamental rights and protections to those who are arrested and detained. The purpose of these laws is to prevent random arrests and ensure the protection of individuals' personal freedom. Preventive detention is the act of holding individuals in custody without a trial or formal charges, with the purpose of preventing future crimes or upholding public order. Although there are rare instances where preventative detention can be justified, it has the capacity to infringe upon human rights if not adequately regulated and protected.
In India, preventive detention is permitted under the Constitution and is regulated by laws such as the Maintenance of Internal Security Act (MISA), the Armed Forces (Special Powers) Act (AFSPA), and the National Security Act (NSA).
In the case of Ahmed Noor Mohamad Bhatti V. State of Gujarat, the Supreme Court confirmed that Section 151 of CrPC is constitutionally valid. The court ruled that even if a police officer abuses this power, it does not make the provision arbitrary or unreasonable.
In the case of Mariappan v. The District Collector and Others, it was determined that the purpose of detention and its associated legislation is not punitive, but rather to prevent the occurrence of specific crimes.
GROUNDS FOR DETENTION:
Preventive detention can only be justified on four specific circumstances:
1. State security,
2. Preservation of public order,
3. The upkeep of provisions and vital utilities, as well as the protection of the nation's security and defense.
4. Matters pertaining to international relations or the safeguarding of India's security.
An individual can only be held in custody without a trial based on one or more of the reasons mentioned above. An individual who is held in preventive custody does not have the right to personal freedom as granted by Article 19 or Article 21.
OBJECT OF PREVENTIVE DETENTION:
a) Preventive detention is implemented to provide security to society.
b) The purpose is not to punish an individual for their actions, but to intervene before they commit a crime and prevent them from doing so.
c) A preventative detention is a precautionary action that is not intended to be punitive.
The State of Tamil Nadu implemented legislation in 1982 with the aim of preventing the recurrence of crimes.
In 1982, Ordinance 1 of 1982 was promulgated by the Governor of Tamil Nadu titled "Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Ordinance, 1982". The statement of object and reasons, so far as they are presently relevant, reads as under:
"In order to ensure that the maintenance of public order in this State is not adversely affected by the activities of these five classes of known anti-social elements without resorting to the National Security Act, 1980, it was considered necessary to enact a special legislation to provide as follows: (a) To define with precision the terms "bootleggers", "drug offender", "goonda", "immoral traffic offender" and "slum grabber"; (b) To specify their activities which adversely affect public order; and (c) To provide for preventive detention of the persons indulging in these dangerous activities." The ordinance was replaced by Act 14 of 1982 with effect from 10.02.1982. Forest offenders were subsequently added to the original five categories of offenders vide Amendment Act 1 of 1988. Video Pirates and Sand Offenders were added in 2004 and 2006 respectively. In 2014, cyber law offenders and sexual offenders were added to the kitty taking the total tally to 10.
SALIENT FEATURES OF ACT 14 OF 1982:
i) Enacting legislation to deter hazardous behaviors of specific individuals who exhibit anti-social tendencies.
ii) To uphold societal harmony and guarantee the well-being of the general population.
iii) To provide a clear and exact definition of the terms "bootleggers", "drug offender", "goonda", "immoral traffic offender", and "slum-grabber".
iv) To delineate the specific actions that has a negative impact on public order.
v) To establish provisions for the apprehension of individuals engaging in these hazardous activities.
vi) To detain the wrongdoers through the use of prejudicial detention.
WHO IS A GOONDA?
Section 2(f) states "goonda" means a person, who either by himself or as a member of or leader of a gang habitually commits, or attempts to commit or abets the commission of offence, punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code (Central Act XLV of 1860)".
Goondas Act also defines:
• bootleggers,
• drug offenders,
• forest offenders,
• immoral traffic offenders,
• sand offenders,
• slum grabbers
• sexual offenders
• cyber-law offenders
• video pirates
As per the 2011 judgment of the Madras High Court in the case of "Arumugam vs. State of Tamilnadu", a person can be detained as a goonda even for a single crime under the Act.
ORDER FOR DETENTION (SECTION 3):
The order was issued to prevent anyone from engaging in any activities that could harm public order, when it is deemed essential, and it mandates the detention of such individuals.
The individual held by this order is referred to as a "detenu".
According to Section 3(1) of the Act, the State Government is empowered to authorize the detention of individuals who are believed to be engaging in prejudicial activities, thereby endangering public order. The government may, by an order, instruct that such individuals be detained for the purpose of preventing them from acting in any way that could disturb public order. The government has the authority to pass this order under Section 3(2) of the Act.
MAXIMUM PERIOD OF DETENTION (SECTION 13):
According to Section 13, the maximum period of detention is set at 12 months unless the government is satisfied that it is necessary to revoke the detention order before that time has elapsed.
In the case of Rajammal v. State of Tamil Nadu, it was determined that this is a constitutional duty that must be carried out without fail.
CONDITIONS FOR DETENTION:
a) Valid order from a lawful authority.
b) The grounds for detention must be stated.
c) A provision of fair hearing for the detained person.
d) Detention without trial is limited to a maximum period of one year.
SAFEGUARDS AGAINST DETENTION:
a) Article 22(5) of the Constitution: Detainee has the right to be informed of the grounds of detention and make a representation against it.
b) The detaining authority is required to provide the detainee with a copy of the detention order along with the grounds of detention, as well as any other information necessary for the detainee to make a representation against the order. (Kumar v. Union of India).
c) Article 22(6) of the Constitution: Prohibits disclosure of facts that the detaining authority deems to be against the public interest.
JUDICIAL REVIEW OF DETENTION ORDERS:
a) Courts can examine the legality of the detention order, and if the order is found to be in violation of legal provisions or based on insufficient evidence, it can be quashed.
b) Judicial review acts as a safeguard to ensure that the power of preventive detention is not misused by the executive.
c) In the case of Rekha v. State of Tamil Nadu, the Supreme Court held that judicial review of detention orders is a fundamental right under Article 226 of the Constitution.
CONCLUSION:
Although preventive detention is considered a necessary measure to safeguard public order and national security, it must be exercised with caution and in strict accordance with the law.
The power to detain individuals without trial can have a significant impact on personal liberty, and its misuse can lead to violations of human rights.
The courts play a crucial role in ensuring that the power of preventive detention is not abused and that individuals are not wrongfully detained.
It is important for the government to strike a balance between national security and individual rights while using the power of preventive detention.
This research paper, therefore, focuses on the Preventive Detention And Violation Of Human Rights With Special Reference To Tamilnadu Act 14 Of 1982.