DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

INTERPRETATION OF STATUTES

Interpretation of Preventive Detention Act, 1950

Name Of the Faculty: Prof. (Dr.) Aruna Sri Lakshmi

Name of the Student: Arthi Gaddipati

Roll No: 19LLB102

Semester VI
 TABLE OF CONTENTS

Acknowledgements……………………………………………………………...2

Introduction……………………………………………………………………...3

Historical Background for Preventive Detention………………………………..4

Preventive Detention Act 1950………………………………………………….8

Constitutional Validity of Preventive Detention………………………………10

Application of Preventive Detention Laws in India…………………………...11

Case Laws……………………………………………………………………...13

Conclusion……………………………………………………………………..21

Bibliography…………………………………………………………………...22

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 ACKNOWLEDGEMENTS

I would like to express my gratitude and heartfelt appreciation to my teachers who gave me
the golden opportunity to do this wonderful project on this interesting topic; which helped me
learn, analyze and explore this specific field of subject by digging deeper into the never
ending mine of knowledge through an extensive and thorough research.

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 INTRODUCTION

When a person is “held in police custody solely on the grounds of a suspicion that they would
commit a crime or harm society, this is known as preventive detention. Anyone who is
suspected of committing a crime may be detained by the police. In some circumstances, the
police are able to conduct arrests without a warrant or a magistrate's approval. Without a
doubt, preventive detention played a significant role in India's colonial legal structure.
Surprisingly, the Indian Constitution's authors, who had experienced the most oppression as a
result of the preventive detention laws, did not neglect to give the same legal standing in
independent India. In relation to India and the current portrayal of itself as a democratic
country, the latest article provides a full overview of preventive detention.

Detention simply refers to the act of having someone arrested or brought into custody. It may
be both legal and unlawful. However, a new concept known as preventive detention has
emerged when it comes to the security of the state and the good of society. Detentions
typically fall into one of two categories. Punitive detention is the term for detention used to
punish a criminal offence. It happens after a crime is actually done or after an attempt has
been made to commit the crime.1”

On the other hand, “preventive detention means a person’s incarceration in advance to

prevent any further possibility of the commitment of crime or its engagement. Preventive
detention is, therefore, an action taken on the basis of apprehension that the person in
question might do some wrongful act. The word preventive is different from punitive as also
been said by Lord Finley in the case of R. v. Halliday2, that it is not punitive but a preventive
measure.”

Preventive “detention is also referred to as administrative detention, since this detention is

directed by the executive and the decision-making authority lies exclusively upon the
administrative or managerial authority. Preventive detention is said to be the practice of
imprisoning accused persons prior to trial on the presumption that their discharge would not
be in favour of society, and, if discharged, they might commit multiple other crimes 3.
Whenever the discharge of the accused is deemed to be prejudicial to the ability of the state
1
Dicey, [T]he Law of Constitution 207-08.
2
[1917] UKHL 1
3
H. E. S. Freemantle, Liberty and Government, 10 INTERNATIONAL JOURNAL OF ETHICS pp. 439-463 (Jul.,
1900).

3
to conduct its investigation, then also the measure of preventive detention is used.
Understanding in a simple sense, preventive detention means that a person is detained
without trial and conviction by the court, based on mere apprehension formed in the
executive authority’s mind. In the case of Mariappan v. The District Collector and
Others4 held that the aim of detention and its laws is not to punish anyone but to stop certain
crimes from being committed.

In the case of Union of India v. Paul Nanickan and Anr5, the Supreme Court stated that the
purpose of the preventive detention isn’t to punish any person for doing something but to
obstruct him before he does it and deter him from doing so. The reasoning for such detention
is based on suspicion or reasonable possibility and not a criminal conviction, which can be
justified only by valid proof. The laws regulating preventive detention are repulsive to the
modern democratic constitution. These laws raise substantial queries about the protection of
the citizens, as mentioned under Article 22 of the Indian Constitution and the freedom of a
person detained on mere suspicion.

As per Section 151 of The Code of Criminal Procedure, 1973, a police officer can apprehend
any person without a Magistrate’s authority or without a warrant if he receives any such
information that the person is likely to commit any crime of cognizable nature and which
cannot be prevented otherwise.6”

HISTORICAL BACKGROUND FOR PREVENTIVE DETENTION

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-

“… [D]etaining 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 …”7

4
H.C.P. (MD) No. 244 of 2014
5
SCC 342 (8) of 2003
6
David H. Bayley, The Indian Experience with Preventive Detention, 35 PACIFIC AFFAIRS pp. 99-115 (summer,
1962).
7
East India Company Act, 1793

4
However, “there are concerns raised over whether the British actually put this Act into effect
because there are no records of any cases where the necessary clauses have been used.

Moving ahead, the Regulation III of 1818 allowed for the restraint of a person against whom
there may not be enough justification to pursue legal action or in sensitive cases. According
to its terms, the person could be put in prison for reasons of the state, such as upholding
alliances forged by the British Government, maintaining peace, or ensuring the security of the
British dominions.”

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

“… [P]rovide 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.

The Rowlatt 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 Provinces10, 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.”

8
Defence of India (Criminal Law Amendment) Act, 1915
9
Rowlatt Act, 1918
10
Government of India Act, 1935

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During the Second World War, “the British introduced the Defense 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.

The first Preventive Detention Act was passed on 26 February 1950, with a purpose to
prevent anti-national elements from carrying out acts that are hostile to Nation’s security and
defence. The said act was supposed to end after the remaining 2 years in practice. But, the
time limit of the act was increased from time to time, and finally, it was abolished in the year
1971.

In 1971 Maintenance of Internal Security Act, MISA was instituted to establish internal
security in India. It was regarded as a controversial act as it was being used continuously to
harass and detain people who put challenges to the governance of Congress including certain
opposition parties, reporters, and social workers. Even after making several alterations, the
act was finally removed when the Janata Party won in 197712.

Another Act named Foreign Exchange and Prevention of Smuggling Activities Act,
COFEPOSA, entered in 1974, which provided for preventive detention to maintain and
improve foreign exchange and to deter illegal trade. This act was like a backup for MISA,
1971 and despite the repealing of MISA in 1977, COFESA persisted. The detention period
for smugglers initially was for one year via another ordinance on 13 July 1984, this was
increased to two years.

In the year 1985 Terrorist and Disruptive Activities (Prevention) Act, TADA was brought in
the regard of Khalistan’s separatist movement. Originally the act was only for two years but it
was revised and reintroduced in the year 1987. This Act is deemed to be the most powerful
and restrictive laws drawn up under the system of preventive detention.”

The purpose of this legislation explicitly indicated that it was accepted on the basis of
practice that, in order to deter and successfully counter-terrorism and violent acts, it is
important not just to enforce current laws but also to render them stricter. “Till 1993 the
11
Defence of India Act, 1939
12
David G. Ritchie, Contributions to the History of the Social Contract Theory, 6 POLITICAL SCIENCE
QUARTERLY (DEC., 1891).

6
length of this act had been extended every two years. From the end of its time frame in 1995
until POTA’s enactment, there was no law centre level to combat terrorism in India. POTA,
or the Prevention of Terrorism Act of 2002, was proposed as a TADA-like law in April 2001.

In response to the terrorist events that occurred in the USA in 2001, the POTO (Prevention of
Terrorism Ordinance, 2001) was created as a binding regulation. The NDA government
passed the decree on October 24, 2001.

After the 13 December 2001 attacks on the parliament, the Parliament had to be suspended,
which led to the passage of another ordinance on December 30, 2001, without being passed
as an act. POTA was developed within the theoretical parameters of state national security
and international Islamic terrorism.

On September 21, 2004, an ordinance revoked the law. The Prohibited Activities
(Prevention) Act (UAPA), which was initially passed in 1967, declares all such groups that
are considered to be separatist supporters to be unlawful. In the 1990s, in the wake of the
Babri Mosque's destruction and the development of Kashmiri separatist activities, a number
of organisations were declared void under this legislation.

The Act was then revised in 2004 by the Unified Progressive Alliance (UPA) administration.
After the 2008 Mumbai attacks, the act underwent another revision. With this revision, the
UAPA was given POTA and TADA clauses such the maximum time for police detention,
unwarranted detention, and bail restriction.”

These modifications enabled the government to detain suspects without the possibility of
posting bail for extended periods of time. The fabrication and distribution of high-quality
counterfeit money, as well as supporting groups deemed unlawful under the umbrella of
terrorism operations, were all included in the 2012 UAPA amendment as examples of actions
that pose a threat to the stability of the nation's economy.

The most recent revision to the statute was made in 2019, and it now gives the NIA the power
to designate people as terrorists on the grounds that they may have connections to terrorist
acts in addition to organisations.

PREVENTIVE DETENTION ACT 1950

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Short title

(1) This Act may be called the Preventive Detention Act, 1950.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall cease to have effect on the 31st day of December, 1969, save as respects things
done or omitted to be done before that date.

Definitions - In this Act unless the context otherwise requires, -

(a) "State Government" in relation to a Union Territory, means the Administrator thereof;

(b) "detention order" means an order made under Section 3; and

(c) "appropriate Government" means, as respects a detention order made by the Central

Government, or a person detained under such order, the Central Government, and as respects
a detention order made by a State Government or by an officer subordinate to a State
Government or as respects a person detained under such order, the State Government.

Objectives

The act comes within any of the grounds specified like

 Security of the State,

 Public Order,
 Foreign affairs,
 Services essential to the community.

The object “is not to punish a man for having done something but to interpret before he does
it and to prevent him from doing it. Justification of such detention is suspicion or reasonable
probability and not criminal conviction, which can only be proved through legal evidence.
Preventive detention aims at protecting society from potential threats and destructions,
whereas, punitive detention seeks to punish a person who is found by the judicial process to
have committed an offence. Nevertheless, all preventive laws are punitive in nature because
imprisonment - even for the purpose of prevention - is a punishment as it obstructs detained
person’s normal life. And similarly, punitive laws are preventive to some extent because

8
punishment is given with a view to deter the convict from further committing offence. In the
case.”

In the case of Ankul Chandra Pradhan Vs. Union of India13 it was held that “the object of
Preventive Detention is not to Punish but to prevent the detenu from doing something which
is prejudicial to the State. The satisfaction of the concerned authority is a subjective
satisfaction in such a manner.”

Non-Obstante Clause

The “word non-obstante stems from Latin and it means notwithstanding or despite a law.
When we see the words notwithstanding anything contained in this Act or notwithstanding
anything contained in some particular Act or notwithstanding anything contained in some
particular provіsіon іn the Act, we can call such a clause as a non-obstante clause. This is
always inserted at the beginning of a provision with the objective of giving the provision an
overriding effect over the statute or provision mentioned in the non-obstante clause. It
essentially means that in spite of the provision or Act mentioned in the non-obstante clause
being in force, the provision that comes after that would be fully enforced without being
restricted by the provision or Act mentioned in the non-obstante clause. Such a clause is used
to modify the Act or provision it carries or restrict its application in certain circumstances. “

The following are the Non-Obstante Clauses provided in the Act.

 “Notwithstanding anything contained in the Code of Criminal Procedure 1898 (5 of

1898), every offence under Cl. (b) of sub -section (1) shall be cognizable.
  Notwithstanding anything contained in sub-section (1), every detention order which
has been confirmed under Section 11 before the commencement of the Preventive
Detention (Second Amendment) Act, 1952 (61 of 1952), shall, unless a shorter period
is specified in the order, continue to remain in force until the 1st day of April, 1953,
or until the expiration of twelve months from the date of detention, whichever period
of detention expires later.
 The provisions of the above sub section shall have effect notwithstanding anything to
the contrary contained in Section 3 of the Preventive Detention (Amendment) Act,
1952 (61 of 1952), but nothing contained in this section shall affect the power of the
appropriate Government to revoke or modify the detention order at any earlier time.
13
Air 1997 Sc 2814

9
  Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897-
(10 of 1897), a detention order may at any time be revoked or modified-
 Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897-
(10 of 1897), a detention order may at any time be revoked or modified-
notwithstanding that the order has been made by an officer mentioned to sub-section
(2) of Section 3 by the State Government to which that officer is subordinate or by
Central Government;
 Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897-
(10 of 1897), a detention order may at any time be revoked or modified-
notwithstanding that the order has been made by a State Government, or by the
Central Government.”

CONSTITUTIONAL VALIDITY OF PREVENTIVE DETENTION

Preventive Detention Act, 1950 reinforces human detention in situations where state
conditions are involved, such as national defence, the preservation of peace and public order,
international affairs, etc.

The validity of the “Preventive Detention Act, 1950 was challenged before the court in the
case of AK Gopalan vs The State of Madras where it was apparent that freedom of an
individual does not qualify as provided under Article 21. The Supreme Court, having taken a
limited view of Articles 21 and 22, refused to entertain whether there were any inadequacies
in the procedure provided by law. It was of the faith that each constitutional article was
autonomous of each other. When the petitioner questioned the validity of his detention on the
grounds that it violated his rights pursuant to Articles 19 and 21 of the Indian Constitution,
the Supreme Court disregarded all the arguments that the detention could be justified merely
on the ground that it was conducted in accordance with the legally established procedure.

In the case of Maneka Gandhi v. Union of India14, the court considerably broadened the
range of the expression ‘personal liberty’ and interpreted it in its broadest extent. The court
noted that Article 21 does not exclude Article 19 and that any statute depriving a citizen of
personal liberty will have to concurrently stand up to the scrutiny of Article 21 and Article
19.

14
1978 SCR (2) 621

10
Justice Chandrachud in the case of Justice K. S. Puttaswamy (Retd.) and Anr. v Union of
India and Ors.15 established threefold conditions in the case of an infringement of personal
liberty of individuals: (i) validity, which presupposes the presence of law; (ii) need, identified
as a valid purpose of the State; and (iii) proportionality, which guarantees a fair relationship
between the objects and the ways pursued to attain them.”

APPLICATION OF PREVENTIVE DETENTION LAWS IN INDIA

National Security Act, 1980 Allows for detention without charge or trial for up to 12 months
to prevent a person “from acting in any manner prejudicial to the defence of India, the
relations of India with foreign powers, or the security of India” or “from acting in any
manner prejudicial to the security of the State or from acting in any manner prejudicial to the
maintenance of public order or from acting in any manner prejudicial to the maintenance of
supplies and services essential to the community”. Conservation of Foreign Exchange and
Prevention of Smuggling Act, 1974 Allows for detention without charge or trial for up to two
years to prevent a person from

 “Smuggling goods, or
 abetting the smuggling of goods, or
 engaging in transporting or concealing or keeping smuggled goods, or
 dealing in, smuggled goods otherwise than by engaging in transporting or
concealing or keeping smuggled goods, or
 harbouring persons engaged in smuggling goods or in abetting the smuggling of
goods.”

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 The
Act allows for detention without charge or trial for up to two years to prevent a person “from
engaging in illicit traffic in narcotic drugs and psychotropic substances”. Prevention of
Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980 Allows
for detention without charge of trial for up to six months to prevent a person “from acting in
any manner prejudicial to the maintenance of supplied of commodities essential to the
community”.

TN ACT 14, 198216

15
AIR 2017 SC 4161

11
Allows for detention without charge or trial of up to 12 months of “any bootlegger or drug
offender or forest offender or goonda or immoral traffic offender or sand offender or offender
or slum grabber or video pirate...to prevent him from acting in any manner prejudicial to the
maintenance of public order”.

Karnataka Prevention Act, 198517

Allows for detention without charge or trial of up to 12 months of “any acid attacker or
bootlegger or depredator of environment or digital offender or drug offender or gambler or
goonda or immoral traffic offender or land-grabber or money launderer or sexual predator
or video or audio pirate...to prevent him from acting in any manner prejudicial to the
maintenance of public order”. Similarly, in Kerala it allows for detention without charge of
trial for up to six months to prevent “any known goonda or known rowdy...from committing
any anti-social activity”18

Andhra Pradesh Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug

Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986

It allows for detention without charge of trial of up to 12 months of any bootlegger, dacoit,
drug-offender, goonda, immoral traffic offender or land grabber; with a view to preventing
him from acting in any manner prejudicial to the maintenance of public order. Another
similar Act in Andhra Pradesh allows for detention without charge of trial for up to six
months to prevent “a communal offender from acting in any manner prejudicial to the
maintenance of public order”.19

Telangana Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug-

Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986

The Act allows for detention without charge of trial of up to 12 months of any bootlegger,
dacoit, drug-offender, goonda, immoral traffic offender or land grabber; with a view to
preventing him from acting in any manner prejudicial to the maintenance of public order.

16
Tamil Nadu Prevention Of, Boot-Leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and
Land Grabbers, Sexual Offenders, Slum-Grabbers and Video Pirates Act, 1982.
17
Karnataka Prevention of Dangerous Activities of Acid Attackers, Bootleggers, Depredator of Environment,
Digital Offenders, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Land Grabbers, Money
Launderers, Sexual Predators and Video or Audio pirates Act, 1985
18
Kerala Anti-Social Activities (Prevention) Act, 2007
19
Andhra Pradesh Prevention of Dangerous Activities of Communal Offenders Act, 1984

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 CASE LAWS

A. K. Gopalan v. State of Madras

A. K. Gopalan a communist “leader had been under detention since December 1947, under
ordinary criminal law. The convictions were set aside. While he was in Madras Jail, dated
March 1, 1950, he was served with an order under Section 3(1) of the Preventive Detention
Act, 1950.

The provision enabled the Central Government or the State Government to detain someone in
order to avoid them from acting in any manner that challenges or violates the national
defence, foreign relations, national security, state security, public order, or the maintenance
of essential supplies and services. In the matter of A K Gopalan vs. State of Madras, AIR SC
27, the petition was made by AK Gopalan under Article 32(1) of the Constitution of India. A
writ of habeas corpus was filed against his detention under the Preventive Detention Act,
1950.

AK Gopalan was a communist leader and under detention since December 1947, as
imprisonment under ordinary criminal law, he was convicted and sentenced. However, these
convictions were overruled by the Court, and hence when A. K. Gopalan was served upon an
order by the State or Central Government, made under Section 3 (1) of the particular act,
which gave upon the State & Central Government. Later he challenged the legitimacy of the
order under the Act on the grounds that the Act violates the Fundamental Rights as the
provisions contradict Article 13, 19 &21, and the Provisions Act 4 of 1950 does not comply
of Article 22 of the Indian Constitution. AK Gopalan also stated they the order issued was
mala fide.”

Legal Issues

 Whether Article 19 and 21 of the Indian Constitution contradict the detention Act of
the Madras State Government?

 Whether the State’s detention Act, 1950 provisions under Article 22 of the Indian
Constitution?

Contentions

Article 21 of India’s Constitution says: “No person shall be deprived of his life or personal
liberty except according to procedure established by law.” The “genuine and original debate

13
starts with the words “procedure according to law”. In the first prime Article 21 case A. K.
Gopalan v.  The State of Madras, Gopalan was detained under the Preventive Detention Law.

However, AK Gopalan moved the Court that his detention was unlawful to practice as it
contradicted the right to personal liberty. The Court held the term used in Article 21 was
meant to just describe the procedural due process and since the Preventive Detention Law
under which A K Gopalan was detained was a genuinely valid and reasonable law.

A.K Gopalan’s detention was lawful even though the said law would have contradicted and
violated some other of his Fundamental Rights some of which were the Right to Freedom of
Movement under Article 19, or the detention was arbitrary under Article 14.” The conclusion
that came out was that the Fundamental Rights were silos in themselves and are not
interconnected, and constituted independent articles. The doctrine is commonly known
as “procedural due process”.

Decision

 AK “Gopalan judgement was contended by a bench of six judges where the major and
primary opinion in the matter was that Article 21 which covered procedure
established by law would simply mean to established by the state.

 The term Law is intended upon, and it is confined to hold that it would provide a wide
understanding of reading it within rules prescribed of natural justice as the implication
of natural justice leaving them formerly undefined. This verdict moves forward from
the notion of law and morals which are unclear.

 Professor Hart said that there is a bond between law and morals but there is no
interdependence among them. The court in the matter overemphasized this notion via
interpretation that there is a specific standard set for law which is the formulation
through legislation and legitimizes it.

 The court well quoted that law was meant to be “jus” that is, a law in the abstract
sense of principles of natural justice, and not as “rex” that is, enacted law. The true
form of legitimacy for any law is the recognition of the principles of natural justice.
Though all six judges gave a different understanding of the same.

14
  However, the vast majority held that Section 14 of the Act, which restrained
disclosure of the grounds of detention, was unconstitutional. Justice Fazal Ali wrote a
dissenting judgement.”

Relevance of the Judgement

 In the “case of Menaka Gandhi vs. Union of India20, the apex court held that the
procedure for Article 21 has to be just, fair and reasonable and also should agree with
the principles of equality and freedom under Articles 14 and 19 of the Indian
Constitution, thus fundamental rights were established to be read together.

 The Fundamental Rights via the validated reasoning of procedural by the due process
are now read independently as interpreted in the Gopalan’s case, which was
denounced, and the understanding of the substantive due process which was brought
in for the upcoming cases.”

Interpretation

The above judgement has been held using the rule of literal interpretation where the words
“established by law” have been interpretated in its simplest form prima facie. The
Fundamental Rights are now read independently in light of the Gopalan case, which was
condemned, and the understanding of the substantive due process, which was introduced for
the forthcoming cases. This is done via the justified reasoning of procedural by the due
process.

Nand Lal Bajaj v The State of Punjab

Facts

On 1st June,1981, “Billa was detained by District Magistrates Order under Section-3(2) of

Prevention of Black-marketing Act and Maintenance of Supplies of Essential Commodities
Act,1980. On 11th June,1981, the accused was arrested by serving him the order of detention
with the grounds of detention. A request was made by the detenue to have an attorney to
assist him in the proceedings of the Advisory Board which got rejected as per Section-11(4)
of the act. Detaining authority was represented by the State Counsel along with two attorneys
and one Legal Representative.

20
AIR 1978 SC 597

15
Detenue again requested from the Advisory Board to have legal assistance which again got
rejected. The court asked for the file of the proceedings of Advisory Board but they provided
them the Advisory Board and the reason reported that their proceedings are confidential and
they cannot disclose them. As per Article-22(3) (b) of Constitution of India every detenue has
a right to right to be consulted and defended by a legal practitioner but as per Section-11(3)
of the act such accused cannot consult a legal practitioner.

No lawyers involved in the proceedings of Advisory Board but in the proceeding’s lawyers
were present. Advisory Board is an independent body established under section-9 of the act
with Chairman as a Judge and two members. It was expected by the Advisory Board to act in
just and fair manner but they blindly applied the provisions of Section-11(4).

As per the report, detenue called upon certain witnesses for cross-examination and in total
there were 11 witnesses. Hearing before the Advisory board lasted for 4 to 5 days. Both the
parties should be given equal opportunities to present their cases. 

Issues

 Whether the accused has a right to be consulted and defended by a lawyer of not

 Whether the detenue can be seek for legal assistant if detained under section-11 of
Prevention of Black-marketing Act and Maintenance of Supplies of Essential
Commodities Act,1980?

 Whether the detention was legal or not?”

Judgement

Supreme “Court in this case, held that the right to get protected and to be defended by an
attorney depends upon case to case. In this case there was no procedural denial guaranteed by
Article-21 and no request was made by the detenue in front of the advisory board and in the
case of Kavita, when the detention is made under section-8 of the act then the detenue has no
right to get legal assistance.

It is clear that in such case a detenu cannot get any legal assistance but it will also be unfair if
the State will get assisted by an attorney. In the case there is a serious infirmity and
continuation of detention will be regarded as illegal.”

Interpretation

16
The above case has been judged using the rule of harmonious interpretation. This rule is used
when the meaning or the definition of a statute differs based on the circumstances of the case.
Here, we can claim this is harmonious interpretation since the judgement text itself states that
the interpretation of Section 22 (3) is subjective to the case in question.

Prem Narayan V. Union of India

Facts

The present “writ petition is preferred against the impugned order dated 03.07.2019 passed
by District Magistrate, Kheri pertaining to Preventive detention under the National Security
Act, 1980 & impugned order dated 10.07.2019 passed by the State Government, for the
purpose of issuance of the writ of CERTIORARI & HABEAS CORPUS.

The incident in respect of which the order was passed pertains to that of dated 21.03.2019
(the day of Holi festival) it was alleged by the original informants that when they were
heading back to their homes after Holi party on their motorcycles, suddenly at 15.30 hrs, the
accused persons Prem Verma, Naseem, Pinki Saxena who were already present at the culvert
came in front of their motorcycles and stopped them. After hurling the abuses, all the accused
persons started firing at the informants by which brother of the informant sustained injury on
his left leg.

This incident made hue and cry in the area, which resulted all the persons present them to
close their shops and run immediately for the sake of safety.

The motive or purpose quoted behind the acts of accused person, as pinpointed by the
informant was that, the same was the Member of Legislative Assembly and due to their
initiation of the task to stop & wither the illegal mining which was being carried in that area.

The allegations were countered by the accused persons, on the ground that the detention order
was illegal and passed upon the extraneous, invalid and non-existent ground. Further, the
order is a clear-cut outcome of the political influence of the MLA associated with the present
case.”

Moreover, a representation dated 16.08.2019 was also made by the accused persons, which
gave the specific details of the incident which took place on that day quoting that, “The
informant and his brother and his numerous supporters were dancing in an inebriating

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condition and it was the present petitioner, who was assaulted by Shri Yogesh Verma and his
supporters, which was captured in the CCTV camera installed nearby”.   

Thus, being a case fully made-up the aggrieved approached the Hon’ble High Court for
requisite redressal of their grievances.

Issues

 Whether the Preventive Detention order is illegal, extraneous and made-up?

 Whether the casual nature as adopted by not appreciating the electronic evidence is
substantial to quash the order of preventive detention?

 Whether the presence of political influence is of great concern in the cases similar to
that of the present one?

Judgement

The Hon’ble High “Court quashed and set-aside the order of preventive detention, by
upholding and observing the following:

 The preventive detention is an encroachment upon the personal liberty of an

individual and cannot be said to be encroached in a casual manner as has been done in
the instant case

 For an act to fall within the category of public order problem, it should be of a nature
to disrupt the ordinary tempo of public life. Also, it should be beyond the capability of
ordinary law to deal with the alleged activities; in other words, if recourse to ordinary
criminal law could have efficaciously dealt with the alleged activities the need to take
recourse to preventive detention law does not arise. The facts and circumstances of
the present case, especially, the changed version of the detaining authorities fall to
establish that the alleged act was one threatening public order

 That it was clearly seen in the detention order that it was based upon false facts and
also that the preventive detention is an encroachment upon the personal liberty of an
individual. While saying that the possibility of political influence leading to the
passing of the impugned detention order cannot be ruled out, the court also observed
that the order shows no application of mind by the detaining authority and that the
said authority has acted merely on the basis of the reports of the Sponsoring

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 Authority, wherein the petitioner was referred as a hardened criminal and a mining
maa having a gang, which is irrelevant and non- existent beyond doubt.

 Further, the non-appreciation of CCTV evidence makes it a clear casual nature to

falsely implicate the accused persons.”

Interpretation

The above judgement has been held using the rule of literal interpretation. Preventive
detention violates a person's personal liberty and cannot be described as being done carelessly
as it has been in this particular case. It was evident from the detention order that it was based
on erroneous information and that a person's personal freedom was being violated by the
preventative custody.

Khudiram Das v. State of West Bengal

An order of the “District Magistrate detained the petitioner under Sec. 3(1) and (2) of the
Maintenance of Internal Security Act, 1971. The grounds of detention stated that the
petitioner was involved in 3 incidents of removing transformers and theft of copper wires.
Disrupting the supply of water and electricity and thus acted in a manner prejudicial to
maintaining supplies and services essential to the community.

The District Magistrate sent a report to the State Government, sending along with the report
the petitioner’s history-sheet.”

After receiving the report from the Advisory Board, the State Government, confirmed the
detention. In a petition under Art. 32, the petitioner challenged his detention on the following
grounds:

1. The “three incidents of theft mentioned as grounds of detention were not sufficient,
objectively, to justify the District Magistrate’s satisfaction that it was necessary to
detain the petitioner,
2. If the power to detain could be exercised on the detaining authority’s subjective
satisfaction under the section, then it imposed. Unreasonable restrictions on the
fundamental right of the petitioner under Art. 19(1),
3. The history sheet of the petitioner was before the Dist. Magistrate, who, though he
stated that beyond the three incidents mentioned in the grounds he did not take any
other material into account in passing the detention order, must have been influenced

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 by the other material in the history sheet. Since that material was not disclosed to the
petitioner, there was a violation of Art. 22(5), and ss. 3 and 8 of the Act, and
4. The petitioner’s history sheet was also before the State Government when it approved
the order of detention and the State Government must also have taken the material
into account in confirming the detention order and this was also.

Contrary to the Constitutional mandate in Art. 22(5) and the legal mandate in ss. 3 and 8 of
the Act to allow him to make an effective representation against his detention. Thus,
dismissing the petition.”

Issues

The case raised the question upon the validity of preventive detention (Article 22)

Judgement

These “three incidents were objectively not sufficient to justify such satisfaction, and the
order of detention based on such satisfaction was bad. If the view is taken that the power to
detain a person could be exercised by the detaining authority merely on its subjective
satisfaction which could not be tested concerning objective standards, Section 3 of the Act,
which empowered the detaining authority to exercise the power of detention based on its
subjective satisfaction, imposed unreasonable restrictions on the fundamental rights of the
petitioner under Article 19(1) and was ultra vires that article. The communication of the
grounds of detention is also intended to sub serve the purpose of enabling the detenu to make
an effective representation.

Interpretation

The above case has been judged with the help of beneficial interpretation of laws. Since every
preventive measure is based on the principle that a person should be prevented from doing
something which, if left free, would probably do it, it must necessarily proceed in all cases to
some extent on suspicion or anticipation as distinct from proof. In the area of preventive
detention, the range of administrative control over an individual’s personal liberty is vast.
However, being conscious of the fact that to maintain constitutionalism within the country. If
the country cannot get rid of preventive detention, it is necessary to reduce its misuse.”

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 CONCLUSION

For a “developing nation, maintaining peace and order and safeguarding the scarce resources
are both crucial. Since its independence, India has experienced numerous rebellions based on
factors such as gender, class, colour, and religion. Through the application of these
preventive detention techniques and national security legislation, India has largely been
successful in maintaining its independence, dignity, and autonomy. The rules governing
preventative detention require some modifications or amendments in order to be fully
consistent with the Right to Life and Liberty. Some criticisms contrast security with the idea
that human rights are important. India is a huge country with extensive boundaries and many
different identities, and as a result, the neighbouring countries are hostile to it. Under these
circumstances, it is the duty of these security-related laws, deeds, and provisions to safeguard
India's independence, dignity, and sovereignty.

Preventive detention laws cannot be invalidated on the flimsy pretext that they are used to
restrict people's freedoms as long as they are made within the bounds of the legislative entry
and do not violate any conditions or limitations on that power. In this regard, a moral
judgement must be made since, on the one end of the moral spectrum, the lives and individual
liberties of sizable segments of society must be respected, and on the other, the imprisoned
person's life and liberties must be protected.”

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 BIBLIOGRAPHY

1. Preventive Detention in India by A.G. Noorani

2. Habeas Corpus and Preventive Detention by A.G. Noorani

3. Contributions to the History of the Social Contract Theory by David G. Ritchie

4. The Indian Experience with Preventive Detention by David H. Bayley

5. The Anatomy of an Institutionalized Emergency: Preventive Detention and Personal

Liberty in India by Derek P. Jinks

6. East India Company Act, 1793

7. Regulation III of 1818

8. Rowlatt Act, 1918

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