Comparative legal analysis of preventive detention laws in India

ABSTRACT: 

This paper provides a comparative analysis of preventive detention laws, such as

• NSA (National Security Act)

• UAPA (Unlawful Activities (Prevention) Act)

• PSA (Public Security Act, J&K)

• MISA (Maintenance of Internal Security Act)

• AFSPA (Armed Forces (Special Power) Act, 1958)

  
  

It also examines the preventive detention principle, sections and its interpretation. Moreover, it also covers the ambit, jurisdiction and authority of the act. 

Preventive Detention means prevention of future act that can be unlawful and opposite to the public policy (law and order). The detention is not to punish any one for any offence but to prevent them from committing a future offence (As discuss in the case of Ankul Chandra Pradhan, 1997) and these acts were solely jurisdiction of the state or central government. In Indian constitution, Article- 22 deals with the arrest and detention of the individual. This article also distinguishes punitive detention (after an offence) and preventive detention (future offence). Most of the detention in Indian were punitive not preventive, it is because preventive detention have some limitation like “public order” or “national security”. Now, let’s discuss the applicability of preventive detention in contemporary times.  

Relevance of the topic: 

• NSA (national security act)

The NSA (national security act) is preventive detention act that barred future offence. It is an act of parliament promulgated on 23 September 1980. The act contains 18 Section, and extends to the whole of India. This act was extended in 2019 to the Jammu and Kashmir, after repeal of article- 370. The act deals with the period of the detention, authority of the government, communication of detention ground to the detenue and other. The act also gives the power to detain a foreigner meaning it is not limited to the citizens. It is the most stringent preventive detention laws. 

The national security act is not the first law that prevent the future offence, there was an act- the defense of Indian act 1915 which was amended during the 1^st world war that enable a state to detain a citizen. This defense of Indian act was repealed by the repealing and amending act, 1947 (ACT II OF 1948). The government act, 1935 also gave the power of preventive detention to the state, condition “defense” “external affairs” of Indian state. 

In NSA detention order must be passed by the district magistrate or commissioner of police with duly considering the material and after subjective satisfaction on the circumstances, and it also reported to the government along with ground. 

In NSA (preventive act) the principle of natural justice is not absent but curtailed. Without any information of arrest, police can detain accused up to 5 days and in special circumstances it can be extended up to 10 days. Advisory board (judges of the high court) review the detention of the accused within in a prescribed time (3 week) and if he find that there is no sufficient cause then the detainee will be released under this act. 

One of the most cardinal principles of fundamental right is also curtailed due to the provisions of the aforesaid act. Principle said that accused without a warrant must be produced before a nearest magistrate within 24 hours (Section-56, 57 of CR.P.C, 1973 and Article 22(2) of Indian constitution) deals with it. However, it is not applicable in the case of NSA. This is because Some Articles of the Indian constitution were repugnant in the context of Preventive Detention. However, it is constitutionally valid in the eye of law. Judicial remedies in these circumstances are to file a writ petition of habeas corpus under High Court or Apex court (under article 226 and 32 of Indian constitution respectively). 

As per the report of national security act (NSA) 1993 in India, 72.3% of 3,783 people were released due to lack of evidence. So, by virtue of this we can say that the increasing reliance on this act can Raises a concern regarding its use as an alternative mechanisms to conventional criminal prosecution. 

Case law: KAFEEL KHAN VS STATE OF UP:  Dr. Kafeel khan a lecturer at department of pediatrics in BRD Medical College, at Gorakhpur, Uttar Pradesh. He was arrested in 13 December, 2019 under NSA, 1980. He was arrested in relation to a speech that was made by him at Aligarh Muslim University; it vitiates the peaceful atmosphere and disturbs the communal harmony. He approached to the Allahabad High Court against his detention. Thereafter, on 1 September, 2020. He was released by the HC and all charges against him were set aside. 

• Now, take the data of Allahabad HC on NSA Detention: Detenues under this preventive law spent 314 days or 76% of their maximum detention period in jail before hearing were completed in Allahabad high court. 9 year of study found that these cases were further quashed or set aside by the High court. According to the report in 19% (Approx) cases, the detention of the detenues extends beyond the stipulated statutory period of 12 months i.e prescribed under the aforesaid Act. 

• The unlawful Activities (prevention) Act (UAPA): also known as ACT NO. 37 OF 1967. It was enacted in 1967. It is also preventive law; it barred terrorist activities against the nation. This act recently amended in 2019 and includes “individual” (designated) in the category of terrorist. Before this amendment only “organization” was designated in the category of terrorist. This act is amended many times, followed by 2008, 2004, 1986, 1972 and 1969. The central government have full jurisdiction under the Act. Government can designate any “individual” or “organization” terrorist under the Act, if it commits/ participate/ prepare/ promotes (if any) terrorism or its activities. 

  
  

Under this act, the 180-day period refers to the maximum time allowed for investigation before filing a charge sheet. 

In pursuant to the data of NCRB (national crime records bureau): 4,231 FIRs were filed in 2016-2019 under the aforesaid act i.e UAPA and the conviction is merely 112 (cases) while the acquittal is 187. This data shows the pendency of cases before the court under the Act. 

• The conservation of foreign exchange and prevention of smuggling activities (COFEPOSA) ACT, 1974: It is one of the important prevention Laws of India. Actually, it was passed by the parliament on 13^th December, 1974. The main aim of the act is to control or curb the foreign exchange or smuggling through the agencies (In this act government doesn’t involve or administer directly). The power to issue the detention order under this act is assign with the central or state government. Its ground for detention is 1) smuggling 2) Abetting of smuggling 3) storing or transport of smuggled goods 4) supporting or indulging in smuggling. There is also advisory board (constituted with HC JUDGES) that examines the detention within 5 weeks and it has to report within 11 weeks of detention to the government for further proceeding. The detention can be extendable up to 1 year (like NSA). 

• Public safety Act, 1978 of J&K:  Also known as with the ACT NO. VI of 1978. This act is solely enacted for the state of Jammu and Kashmir. The ground for detention under this act is also same. But, the territorial jurisdiction is only state of (J&K). The grounds are “security of the state” or “public order”. A noteworthy point is that “public order” because there is a vast difference between law and order or public order.  Moreover, the law and order affect only individual but public order affect the whole community. PSA, 1978 empowers the government to detain any person without any Trial and this power is align with the district magistrate (DM) and divisional commissioner. The maximum detention is up to 2 years for the purpose of state security and up to 1 year for the threat to public order. 

Case law: JAFFER HUSSAIN BUTT VS UNION OF TERRITORY OF JAMMU AND KASHMIR (HCP No. 41/2025) (Coram: Hon’ble Mr. Justice Vinod Chatterji Koul): The Hussain butt was a constable of Jammu and Kashmir police, but he was dismissed from his post in September, 2021. Hussain was alleged for the offence related to terror (terror link), for providing his vehicle to two militants (FIR was lodged against him by the senior superintendent of police at Kishtwar police station under section-8 of the J&K public safety Act). Hussain butt alleged that his vehicle had been stolen but he didn’t have lodged any complaint against it. Hussain was also accused for providing fake registration number of his Car, in pursuant to the dossier that was prepared by the SSP. He was also arrested for the same on October 2019, but released on bail. After that, Hussain was detained under the preventive detention act (PSA) and at the end the Jammu and Kashmir and Ladakh HC quashed his detention and said that “under – trail prisoner was entitle or likely to get bail” and was not the grounds for the prevention detention act. 

Conclusion: That it is constitutionally valid but it has some challenges which must be corrected with the view of citizen and it is necessary to ensure that the fundamental rights of the individual are not unduly infringed. In pursuant to the interpretation of the case law Ameena Begum Vs The state of Telangana (2023): The apex court held that it is exceptional measure and should not be used routinely. 

Author: Aniket Kumar, BComLLB, Central University of Chhattisgarh (GGU).