SAVITRIBAI PHULE PUNE UNIVERSITY

DEPARTMENT OF LAW

Comparative Public Law

2017-18

Submission of Long Term Paper on,

Preventive Detention in India

Submitted By,
Miss. Tejlaxmi Dhopaokar.

Roll No 21

DIV A

Under the guidance of

Prof. Sonia Nagarale

1
 Table of Contents

CHAPTER 1 INTRODUCTION TO RESEARCH STUDY 3

CHAPTER 2 HISTORICAL BACKGROUND OF PREVENTIVE DETENTION IN INDIA 8

CHAPTER 3: PREVENTIVE DETENTION AND THE CONSTITUENT ASSEMBLY 10

CHAPTER 4 NATIONAL CRIME RECORDS BUREAU STATISTICS 12

CHAPTER 5 PREVENTIVE DETENTION AND THE JUDICIARY 13

CHAPTER 6 THE CASE AGAINST PREVENTIVE DETENTION 17

CHAPTER 7 CONCLUSION 19

SUGESSION 20

BIBLIOGRAPHY 21

2
 CHAPTER 1 INTRODUCTION TO RESEARCH STUDY
1.1 INTRODUCTION:
The Indian Experience with Preventive Detention1 by David H. Bayley’s, discusses the
entrenchment of Preventive detention laws in India can mainly be attributed to the period
wherein Indian territories were under the control of the British Empire or the East India
Company. Preventive Detention is the imprisonment of an individual without trial, an act which
is putatively justified for non-punitive purposes. It is often characterized as a precautionary
measure rather than a punitive measure, in the sense, that the action arises out of suspicion and
seeks to prevent the committal of a crime. The objective is held to be interception than
punishment, but the idea that the State may detain an individual, without trial or much remedy,
seems like a draconian colonial aftertaste. Preventive detention impinges upon a person’s liberty,
which in the general sense of the term, refers to the basic principles of autonomy and freedom an
individual possesses. While in general context, freedom to association, to act freely in a lawful
manner and other such freedoms can be clubbed under liberty but in general practice, liberty is
referred to as freedom of movement and the freedom from detention of an individual. This then
inadvertently draws in the concept of rule of law, the notion that if the liberty of an individual is
to be denied, then it is to be denied via due process.

1.2 SIGNIFICANCE OF THE RESEARCH

The preventive detention in India has not been able to fulfill its underlying rationale of
ensuring security and stability while also giving rise to a repeated pattern of abuse and
Suppression. First, researcher traces the history of preventive detention laws in India, focusing
on the Indian Constitution, British colonial laws, and post-Independence Constituent Assembly
debates. It also looks at various national and state preventive detention laws drafted pursuant to
the Constitution. The researcher then considers judicial oversight of preventive detention as well
as the failure of the judiciary to adequately ensure fundamental rights. Moreover researcher
analyses India's preventive detention laws and Constitutional provisions. Finally, the researcher

1
David H. Bayley, The Indian Experience with Preventive Detention, 35 PACIFIC AFFAIRS pp. 99-115 (summer,
1962).

3
offers some basic recommendations on how to improve the preventive detention regime in
India.2

1.3 LITERATURE REVIEW

Moushumi Basu’s letter as the Secretary of the People’s Union for Democratic Rights
titled Preventive Detention3, shows active participation of the people of India in the public
domain, criticizing the arbitrary use of preventive detention laws by governments in order to
fulfill their own agendas. She argues that if the commission of crime is conducted in full public
view, as in the case of Varun Gandhi’s detention in Uttar Pradesh, the use of preventive
detention laws by the State of Uttar Pradesh can be only to serve the interests of the government
in question, which she believes is to soft pedal his offenses. She draws a parallel of the use of
preventive detention laws in Jammu and Kashmir where political dissidents are booked under the
same without a shred of evidence. This, she asserts, is evidence, that while the two instances
seems similar, the enforcement of the same laws is done so that the privileged and the powerful
escape justice whereas the vulnerable suffer injustice.

Kenneth Roth’s article, After Guantánamo: The Case against Preventive Detention4, not
only argues against the implementation of preventive detention laws in liberal democracies,
likening the behavior to authoritarian states, but also highlights that the criminal system can be
made use of in order to accomplish the same goals that preventive detention laws seek to
achieve. He argues that the criticisms of the people who support preventive detention over the
criminal justice system are flawed and not grounded in reality. He asserts that one of the lead
oppositions proposed by people who prefer preventive detention is the fact that the crimes are
preemptively acted upon and not committed, which is a requirement of the courts. However,
Roth argues that the existence of laws regarding conspiracy can serve the same purpose, since
they do not require the commission of an act in order to be applicable. The second reason he
contends with is that interrogators would no longer be able to unearth valuable information for
the state. However, Roth raises a point when he states that such information can still be drawn
out and is merely restricted from being used as grounds for conviction. He tackles the supporters

2
Preventive Detention - A.G. Noorani and South Asia Human Rights Documentation Centre
3
Moushumi Basu, Preventive Detention, 44 ECONOMIC AND POLITICAL WEEKLY pp. 4 (Apr., 2009).
4
Kenneth Roth, After Guantánamo: The Case against Preventive Detention, 87 FOREIGN AFFAIRS pp. 9-16 (May-
Jun., 2008).

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of Preventive Detention on other grounds as well, cementing his belief that Preventive Detention
laws could effectively be replaced by the Court systems. He does not however, surrender to this
notion, for he raises the possibility of governmental overreach, yet contends that judicial scrutiny
on this issue would curb abuse.

In his article The Anatomy of an Institutionalized Emergency: Preventive Detention and

Personal Liberty in India 5, Derek P. Jinks outlines the gradual development of preventive
detention laws in India, while contextualizing it to the developments of human rights and their
subsequent recognition in the international forum. He raises two significant flaws in the current
mechanism, firstly being, the fact that the ambiguous words used in the legislature can be
defined arbitrarily by those in power, and hence it cannot influence the conduct of the people
who do not know what the State can putatively punish them for. Second, he contends, that the
law allows for the subjective satisfaction of the detaining authority to be grounds for detention.
However, the existence of provisions which allow for the active concealment of reasons for
detention can leave this provision with much scope of abuse. However, unlike most authors, he
does not fail to take note of the reasons that the Indian state puts forward for the existence of
such laws. He takes note of the justifications provided by the State, namely being the structure
and history of law in India, the existence of fundamental rights in the Constitution and the
justifications the State offers in International forums. However, towards the conclusion, the
author establishes how a review of preventive detention laws are not only required at a national
level, but the attitude and actions of the International community too need reform.

However, the researcher did not choose to restrict himself to only the writings of various
authors. The researcher has also looked into case law, in order to understand the opinions of the
esteemed judiciary. Also, the researcher has made note of the legislature as it exists in the current
scenario and aims at providing a list of the states, and prevalent legislature which is used to
support the same. Central administrative detention laws include the National Security Act and
the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act.
State laws include the Jammu and Kashmir Public Safety Act, the Gujarat Prevention of Anti-

5
Derek P. Jinks, The Anatomy of an Institutionalized Emergency: Preventive Detention and Personal Liberty in
India, 22 MICHIGAN JOURNAL OF INTERNATIONAL LAW pp. 311 (2000-2001).

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Social Activities Act, and the Karnataka Prevention of Dangerous Activities Act (popularly
known as the 'Goondas Act').

Initially, so as to effectively analyze and perceive the multiple normative ideas that ar
tied inside the narrative of preventive detention, the researcher indulged in reading social
sciences books so as to determine a comprehensive and definition that he might work with,
considering that the majority ideas that ar related to the mechanism of preventive detention are
far and away thought of to be primarily contested ideas. Having created a base for himself, the
researcher proceeded to scan books that talked concerning the narrative with particularly with a
legal and social perspective.
Having analyzed the literature that exists as of currently, it strikes to the researcher that
there's a precise bias within the academe against the mechanism of preventive detention, because
it has been more and more troublesome for the researcher to seek out any literature that supports
an equivalent. However, it'd be unfair on a part of the researcher to not note the actual fact that
every piece of educational literature that seeks to contend against the rife mechanism, the
researcher saw the looks of points that sought-after to determine the necessity for an equivalent.
The researcher then touched towards the statues enacted within the past and any
statement offered on them, wanting to determine a written account list of an equivalent. Moving
to establishment, it had been way easier to determine the relevant provisions. However, within
the case of constitutional provision, the researcher has gone way enough to form not of the
debates close the relevant provisions moreover.

1.4 AIM AND OBJECTIVES

1. To study the meaning, definition of Preventive Detention
2. To study the recent scenario and the cases relating to Preventive Detention
3. To study the factors regarding Preventive Detention
4. To study the various aspects of Preventive Detention
5. To study the constitutionality of Preventive Detention

1.5 HYPOTHESIS
The operating hypothesis is trend of preventive detention in India is changed after Independence
by legislatons and judiciary.

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1.6 RESEARCH METHODOLOGY
The research methodology of the research on Preventive Detention in India here as under-

This research is purely a doctrinal research. This research is based on collecting data and
based on secondary sources of books, journals, reports, articles, newspapers, etc. However the
nature of the study is primarily qualitative, descriptive and analytical.

1.7 SOURCES OF DATA COLLECTION

1. Primary Source
2. Secondary Source.

In present research, the researcher will use Primary as well as secondary source of data
collection. That means researcher will collect data through textbooks, articles and reports,
reference books, internet access etc.

1.8 TOOLS OF DATA COLLEC TION

The main tools used for doctrinal Data Include Articles, news, websites, books etc,

1.9 RESEARCH MODELS

a. Historical model is to discuss past and present events in the context of the present
condition, and allows one to reflect and provide possible answers to current issues and
problems regarding Preventive Detention in India
b. Analytical model is to study the present scenario regarding or relating to Preventive
Detention in India by using facts and information already available and analyze these in
order to make a critical evaluation

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 CHAPTER 2 HISTORICAL BACKGROUND OF PREVENTIVE
DETENTION IN INDIA
The entrenchment of Preventive detention laws in India can mainly be attributed to the
period wherein Indian territories were under the control of the British Empire or the East India
Company. The law of preventive detention which has been codified in a way in Article 22 of the
Constitution, can be traced to as early as 1793, The East India Company Act, 1793 provided that-
“Detaining in custody any person or persons suspected of carrying on immediately any illicit
correspondence dangerous to the peace or safety of any of the British settlements”6

However, doubts are expressed with regard to the question of whether the British called
this Act into force, for no records of any case which make use of relevant provisions have
surfaced.

Moving forward, the Regulation III of 1818, provided for the restraint of an individual
against whom there might not be sufficient grounds to initiate any judicial action against or if the
case was a sensitive one. Under its provisions, the individual could be imprisoned for reasons of
the state which included the maintenance of alliances formed by the British Government, the
preservation of tranquility and the security of the British dominions. 7

The outbreak of the First World War called for legislature such as the Defence of India
(Criminal Law Amendment) Act of 1915, the objective of which was to,

“Provide for special measures to secure the public safety and the defense of British India” 8

Section 2(1) (f) of the act authorized the Governor-General-in-Council to make rules
which could in turn empower any civil or military authority to direct the conduct of an
individual, if the said authority in question had a reasonable suspicion that the individual, if left
to his or her own devices, would indulge in conduct that would be prejudicial to the security of
the state.

6
East India Company Act, 1793
7
Regulation III of 1818
8
Defense of India (Criminal Law Amendment) Act, 1915

8
 The Rowlett Act, 1918 is another one of the laws, which caused widespread outrage in
the public domain against the British because of the unjust powers over Indians it afforded to the
British State in power at that time. 9

It is contended that the roots of the modern Preventive Detention Laws lay in the
Government of India Act 1935 because there exists a similarity in the pattern of distribution of
authority amongst the Federation and the Provinces 10, which the Constitution translates to the
power sharing agreement between the Union and the States. However, the primary distinction,
which in a manner increases the complexity of the matter of civil liberty and the ways in which it
can be regulated, because unlike the Government of India Act, the Constitution allows the
judiciary to subvert the opinions of the Legislature if in case the laws prescribed by the same are
in contravention to the rights declared by the Constitution.

During the Second World War, the British introduced the Defence of India Act, 1939,
which was enacted in order to contend with war emergencies, thus ensuring public safety,
defense of British India and for the conviction of certain crimes. Of significant interest is
Section 2(2), Clause (X), which empowers authorities to act upon reasonable suspicion and
detain an individual on grounds of the same, if the conduct of the individual can be foreseen to
be one which is detrimental to the security of the State11.

9
Rowlett Act, 1918
10
Government of India Act, 1935
11
Defense of India Act, 1939

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 CHAPTER 3: PREVENTIVE DETENTION AND THE
CONSTITUENT ASSEMBLY
The articles of the current Constitution, which deal with preventive detention and
constitutional safeguards that apply to the same by acting as a check on the power wielded by the
Parliament i.e. the Legislature and the Executive, appeared in front of the Constituent Assembly
as Article 15 on 15th September, 194912.

Honorable Dr. B.R. Ambedkar proposed Article 15-A [Article 22 in the present
Constitution of India] as a safeguard provided by the Constitution against the arbitrary exercise
of state power by the governments to come. He was however, dissatisfied by the final product of
his efforts, since he felt that the exclusion of the word “due process of law” from its language
removed any conditions or limitations from laws. The article was taken from the Code of
Criminal Procedure and given place in the Constitution in order to put the fundamental right to
personal liberty in the matter of arrest and detention on a pedestal, where it would be free from
infringement by the unreasonable exercise of authority by the Legislature or the Executive.

In regards to the same, he spoke,

“…But we are, as I contend, making a fundamental change because what we are doing by the
introduction of article 15A is to put a limitation upon the authority both of Parliament as well as
of the Provincial Legislature not to abrogate these two provisions, because they are now
introduced in our Constitution itself…”13

The debates that surrounded the introduction of such an article were highly controversial,
as the members of the Assembly who had faced detention under the British Raj found the
contents of the provision lacking and as such denied the accused a fair trial. Skepticism prevailed
in the minds of the members through the course of the debate, as they doubted the credentials of
the executive in matters of arrest and detention.

However, concerns were raised also as to regards with the security of the State. It was
argued that the concern of security was as important as the protection of liberty. The members

12
CAD, Volume IX, pp 35, Accessed at: http://parliamentofindia.nic.in/ls/debates/vol9p35a.htm on 2:43AM,
16/11/2015.
13
ibid

10
recognized the perils that a multicultural state as India faced and as such deemed, after
deliberation, to be a necessary evil required under the existing conditions of India.

A major proponent of such a school of thought was Mr. Alladi Krishnaswami Ayyar, who
expressed that,

“It is agreed on all hands that the security of the State is as important as the liberty
of the individual. Having guaranteed personal liberty, having guaranteed that a person should
not be detained or arrested for more than 24 hours, the problem necessarily had to be faced as
to detention, because detention has become a necessary evil under the existing conditions of
India. Even the most enthusiastic advocate of liberty says there are people in this land at the
present day who are determined to undermine the Constitution and the State, and if we are to
flourish and if liberty of person and property is to be secured, unless that particular evil is
removed or the State is invested with sufficient power to guard against that evil there will be
no guarantee even for that individual liberty of which we are all desirous. That is the object of
the provision.”14

An inspection of the debate that surrounds the article, amendments proposed to it and
reasons which extolled upon the necessity for rejection of the same, shows a meticulous
approach taken by the members with regard to the mammoth task that lay in front of them, the
task of finding the middle ground between individual interest and protection of the fundamental
right of liberty and the wants of the State with concern to its security. The debates, as well as the
Article, demonstrates the intertwining principles of criminal procedure and constitutional
principles and the faith expressed by the members in the powers of the magistrate in keeping a
check on the arbitrary use of power.

14
ibid

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 CHAPTER 4 NATIONAL CRIME RECORDS BUREAU
STATISTICS
In its publication Prison Statistics India, the data accumulated by the National Crime
Records Bureau shows that Tamil Nadu leads the charts with the number of detainees under
preventive detention, with a statistic of 1892 prisoners 15. There is a marked rift between the first
place holder, Tamil Nadu and the second, which is Gujarat at 594 prisoners 16.

A bias against the sections of society that have not been able to receive competent
education and literacy is observable in the statistics provided, since 78% of total detenues were
either illiterate or received education only up to the tenth standard 17.

A trend is also observable on caste lines considering the fact that merely a 5.1% of total
detenues belong to the General category.

While such statistics majorly weaken the credibility of the use of Preventive Detention
clauses, a truly crippling blow is delivered to the argument that preventive detention can lower
crime rates by the statistical evidence that while number of detenues increased treble since 2012,
only a 6.77% drop was observed in violent crimes, a chunk of which can be attributed to the fact
that rape cases are now reported separately in statistics.

Surprisingly, only 1077 detenues were imprisoned till the expiration of the detention
period stipulated under the provisions applied to the fact situation, whereas a startling 5138
detenues were released before the same, simply because the State could not provide adequate
justification in order to validate such detention18.

15
Prison Statistics India 2014, National Crime Records Bureau, pp. 31 (Sept., 2015).
16
ibid
17
Id at 96.
18
Id at 93.

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 CHAPTER 5 PREVENTIVE DETENTION AND THE JUDICIARY
The area of preventive detention, its conception and implementation is a sphere of law
biased towards the administrative authority, designed in such a manner so as to leave a very
narrow margin for judicial intervention. However, the judiciary has been conscious of the fact
that preventive detention infringes upon the liberty of an individual, which is a fundamental right
of the individual guaranteed by the Constitution, a guarantee which cannot be undermined by
arbitrary use of power. In order to safeguard said liberty from undue exercise of power, the
Courts have evolved a few principles that tackle administrative discretion to an extent, which has
been achieved by a liberal interpretation of Article 22 and by applying vigorously and creatively
some principles of administrative law 19.

THE A.K. GOPALAN VS UNION OF INDIA 20 CASE

The case of A.K. Gopalan was one of the first cases that brought into question the
validity of such archaic laws before the Supreme Court. Our Supreme Court, which at occasions
has risen up to the occasion and delivered judgements that have held first and foremost the rights
of the people, unfortunately, failed to address this case properly. In fact, in his book, “The Court
and the Constitution of India Summits and Shallows”, the author O Chinnappa Reddy, asserts
that the Court did not rise to any new heights but on the contrary it failed to rise to the
occasion21.

A.K. Gopalan was a communist leader detained under the Preventive Detention Act in
order to prevent him doing any act whatsoever which would have served to debase the State or
the maintenance of law and order in the same. An understanding of the backdrop of this case
plays an important role in understanding the reasons as to why the conduct of the Court and the
State. Historically, the case came at a time when India had newly gained its independence and as
such its democracy was still being exercised in its nascent stages, which led to threats arising in
the sustainment of the same. Most communist leaders back then were plotting to topple the
government and it was suspected that the means would be violent. In such a backdrop, the task of
the Court was to harmonize the two conflicting ideas, that of individual liberty and that of State
control.

19
M.P. Jain, “Indian Constitutional Law”, pp 615 (1987).
20
A.I.R. 1950 S.C. 27.
21
O Chinnappa Reddy, The Court and the Constitution Of India Summits and Shallows, at 28, (7th ed. 2014)

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 The first argument put forward was that the fundamental rights should be looked at as a
cohesive unit rather than in singularity. This meant that the provisions of Art. 19 in the
Constitution relating to freedoms secured to the individual by the state should be read in the
provisions of Art. 21 securing right to life and personal liberty and Art. 22 which provided the
State the leeway to make preventive detention laws22. However, this argument was dealt with by
stating that the rights raised where the rights of free men alone and thus were outside the scope
of either punitive or preventive detention laws due to the existence of the exception clause in
Article 19(5). Furthermore, the Court contended that each fundamental right is a code by itself
and as such must be independently construed in isolation from one another.

The second argument was that the word ‘law’ in the phrase procedure established by law
should be abstracted to an extent that it included notions of natural justice within the same, yet it
was dismissed by the Court as it asserted that it would merely mean that the procedure prescribed
by the Legislature must be properly followed.

The Court contended that since the Constitution did not provide for explicit guidelines as
regards to conduct which should not be pursued by the citizens of the state, therein the argument
that the subjectivity of the State is wrong fails, simply because there exist no objective standards
which may be used. This principle is reflected in a judgement passed in the British era, where in
the case of Liversidge v. Anderson23, it was held that the executive decision of branding a person
as a threat to society was a purely executive action and as such did not require the interference of
the courts. This is the doctrine which is widely followed in India while dealing with the cases of
preventive detention which subjugates the authority of the judiciary in preventing against the
arbitrary detention notwithstanding the fact that the “House of Lords have put the same doctrine
to the place where it belongs- The War Museum”24.

ARTICLE 32 AND PREVENTIVE DETENTION

The Supreme Court does not contend appeals on orders of preventive detention under
Article 32, rather it can merely consider whether the requirements of Article 22(5) of the

22
O Chinnappa Reddy, The Court and the Constitution Of India Summits and Shallows, at 29, (7th ed. 2014)
23
[1942] AC 206
24
A.G. Noorani, Habeas Corpus and Preventive Detention, 36 EPW 746, (2001)

14
Constitution have been complied with in a particular case 25 and that is all. The Court cannot
examine the materials which is the grounds of preventive detention and attempt to replace the
subjective satisfaction of the detaining authority with its own, in order to withdraw detention 26.

COURT’S POWERS WITH REGARD TO THE ADMINISTRATION

OF PREVENTIVE DETENTION LAWS
There are a few circumstances, wherein the Courts may consider the release of the
detained person. The following are the circumstances among other things, where the Court’s
intervention may lead to the release of the detained person, yet by no means is this list
exhaustive. This is merely a list of circumstances which have already appeared before the
contention of the Court.

Firstly, the Court may consider the validity of the detention of an individual if the
detention violates the requirements laid down by Article 21 of the Indian Constitution in so much
as that it is a contravention of statutory requirements27.

The Court also considers the validity of an individual’s detention if the validity of the
same is questioned under Article 22(5).

The validity of detention can also be challenged if in case here are absolutely no reasons
are shown to support the need for detention28. If it is shown before the Court that the detaining
authority has not applied its mind to relevant considerations and issued detention orders based on
extraneous matters, then too the Court can question the validity of the detention order29. The
Court has also prohibited detention orders which rely on materials of a previous order of
detention which had been quashed already in the Court 30.

25
Hemlata Kantilal Shah vs State Of Maharashtra & Ors, 8 1982 SCR (1)1028
26
ibid
27
Sat Pal vs. State of Punjab and others, AIR 1981 SC 2230.
28
Kamaladevi vs State of Punjab, AIR 1984 SC 1895
29
Mehboob vs Police Commissioner, (1989)2 SCJ 92
30
Ramesh vs State of Gujarat, (1989)2 SCJ 193

15
 If the detained person is not afforded the opportunity to appear before the Advisory
Board, within the statutory period of submission of report by the Board, the validity of the
detention order can be put to question31.

However, the Court may not reduce or enlarge the period of detention passed by the
detaining authority, considering that the objective of said detention is the subjective satisfaction
of the detaining authority and thus offers the Court with no leeway to interfere with the terms of
the detention order32.

31
State of Punjab vs Sukhpal Singh, AIR 1990 SC 231
32
Poonam vs Wadhwan, AIR 1987 SC 1303

16
 CHAPTER 6 THE CASE AGAINST PREVENTIVE DETENTION

Before constructing a case against Preventive Detention, it is the researcher’s burden to

truly expound upon preventive detention from multiple views and show why an individual’s
liberty is to be protected by the State.

The general consensus is the fact that while the right of liberty should very well be held
sacrosanct, it is recognized as a right which is not absolute in nature. However, it should not be
transgressed, unless specific conditions are met and certain safeguards of certainty, objectivity
and independence are present.

The first reason put forward against the arbitrary contravention of liberty is the existence
of the social contract, as propounded by Locke, where he asserts that each State exists due to a
contract which allows it to regulate and govern the behavior of individuals, only because in
return, the State guarantees certain fundamental rights to the individual 33. It is further expounded
upon in order to include the notion of a good life for an individual, which is asserted to require
the existence of certain basic rights, amongst which liberty shines first and foremost.

A case against prevailing preventive detention laws can be that their enforcement is on
the subjective satisfaction of the detaining authority, which provides the State with a legal
leeway it may enforce in order to not deal with threats to society in general, but instead tackle
with individuals it finds problematic. The fact remains that the doctrine that allows for the
absolute subjectivity in terms of the decision for preventive detention is an archaic one, which
was applicable merely through wartime and is a doctrine that should be done away with in times
of peace. The laws of preventive detention also do not conform to principles of natural justice,
where the requirement is to declare laws before they are enforced. Yet ambiguous terms cannot
serve to influence conduct and are as good as no declaration at all in the mind of the researcher.
Provisions that deny the reasons for detention to be known further add to the violations that these
archaic laws stand for.

33
David G. Ritchie, Contributions to the History of the Social Contract Theory, 6 POLITICAL SCIENCE QUARTERLY
(DEC., 1891).

17
 Another line of argument which can be drawn is that the existing justice system provided
by the Courts are of a nature where the need for preventive detention merely does not exist.
Clauses such as the 41 of the Criminal Procedure Code can be used to prevent individuals from
committing crimes, whereas all other concerns, which the supporters of Preventive Detention
shall surely raise can be contended with to a great extent. Criminal Courts allow for the
conviction of individuals via charges of conspiracy, ensure that the rights of the individual
against whom the prosecution is run are safeguarded yet do not serve as a bar for interrogation,
choosing merely to not acknowledge such information as part of the case, thus creating a method
to collect tactical information. Certain procedural concerns, such as secrecy are addressed by
classification and as such, no true argument can be made against the same, except for the
argument that it is an onerous task, the conviction of an individual under the Court system. To
this, the researcher contends that the task of protecting the rights of people, from day one, was an
onerous task indeed and that is no excuse to allow any dereliction of duty in the same.

18
 CHAPTER 7 CONCLUSION
India’s commitment to human rights and civil liberties is something held sacrosanct in
the Constitution and is a feature of the basic structure of the Constitution. It is also reflected in
the institutional mechanisms which allow for the independence of the judiciary, the freedom of
the press and the promise of fair elections.

Preventive Detention in independent India is an anathema which has existed since 1950,
barring brief respites34 . As such, while the leeway granted to the State is exceptionally broad and
allows for gross abuse of power, it would be absurd to suggest that the evils of preventive
detention have been recognized to their fullest extent. The lack of a Union Government more
inclined towards authoritarian tendencies is the sole barrier between social reality and the
dystopia that preventive detention can cause.

While Preventive Detention can be held as an aftereffect of the British laws in India, it
would be impudent to suggest that such laws were not required by the State in its nascent years,
where civil strife was at its peak and threats of destabilization hung like Damocles’ sword over
the necks of the people in power. Yet the continuation of such laws, without review, based on the
principle that should have existed only in wartime, is a contravention of the social contract
envisioned by the founding fathers of our Constitution.

A review of laws and their enforcement is required and it is required now.

The author’s hypothesis stands true, as the author has demonstrated how the preventive
detention laws in India are changed after Independence. The statistics provided by the National
Crime Records Bureau also fall in line with the assertions of the author about the flaws in the
implementation of such provisions and the inherent biases that govern the same.

At the conclusion of this debate, one fact gleans true, the fact that the State can no longer
hide behind the argument of collective interest in order to justify the existence of archaic laws
regarding preventive detention. While the concerns for security may stand justified, it would be a
case of extreme fallacy to ignore status quo, which shows ample misuse of the provisions that
allow for preventive detention.

34
M.P. Jain, Indian Constitutional Law

19
 SUGESSION
It is the author’s suggestion that whereas preventive detention laws cannot be actually
done away with, the supply that enables for the grounds of detention being the “subjective
satisfaction of the detaining authority” be modified, for such a clause permits for rampant
misuse, as highlighted by the author within the text. It’s additionally essential that basic rights of
detenues be recognized and therefore the reason for his or her detention ought to be expressed to
them as shortly as attainable. so as to subsume issues of knowledge breaches, the author suggests
privately hearings, wherever the defense will examine proof against a personal freely.

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 BIBLIOGRAPHY
1. Constituent Assembly Debates
2. Preventive Detention in India by A.G. Noorani
3. Habeas Corpus and Preventive Detention by A.G. Noorani
4. Contributions to the History of the Social Contract Theory by David G. Ritchie
5. The Indian Experience with Preventive Detention by David H. Bayley
6. The Anatomy of an Institutionalized Emergency: Preventive Detention and Personal
Liberty in India by Derek P. Jinks
7. The Law of Constitution by Dicey
8. Liberty and Government by H.E.S. Freemantle
9. After Guantánamo: The Case against Preventive Detention by Kenneth Roth
10. Preventive Detention by Moushumi Basu
11. Indian Constitutional Law by M.P. Jain
12. The Court and the Constitution Of India Summits and Shallows by O Chinnappa Reddy
13. Prison Statistics India by National Crime Records Bureau
14. East India Company Act, 1793
15. Regulation III of 1818
16. Defense of India (Criminal Law Amendment) Act, 1915
17. Rowlett Act, 1918
18. Government of India Act, 1935
19. Defense of India Act, 1939

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