Chapter 2
CONCEPT OF PREVENTIVE DETENTION
2.1 Definition
Arbitrary arrest, detention and custodial torture by law enforcing agencies have remained a persistent feature of our 4 criminal justice system. Though the concept of Preventive Detention is acknowledged all over the world, no universal definition exists. The term preventive detention means a detention the aim of which is to prevent a person from doing something which is likely to endanger the public peace or safety or causing public disorder.
Preventive detention is a special from of imprisonment that is putatively justified for non-punitive purposes. According to “Black’s law dictionary” preventive detention means confinement imposed upon a criminal defendant who has threatened to escape, possesses a risk of harm, or has otherwise violated the law while awaiting trial or on a mentally ill person who may cause harm”.
Preventive detention means detention of a person without trial and without conviction by a court, but merely on suspicion in the minds of the executive authority. In A.K. Gopalan vs. State of Madras[1], it was held that there is no authoritative definition of Preventive Detention. The word “Preventive” means that restrain, whose object is to prevent probable or possible activity, which is apprehended from a would be detenu on ground of his past activities[2]. “Detention” means keeping back[3]. Preventive detention means detention of a person only on suspicion in the mind of the executive authority without trail, without conviction by the court.[4]
The detention, the aim of which is to prevent a person from doing something which is likely to endanger the public peace or safety or causing public disorder.[5] Preventive detention is an abnormal measure whereby the executive is authorized to impose restrain upon the liberally of a man who may not have committed a crime but who it is apprehended, is about to commit acts that are prejudicial to the public safety etc.[6] As David H. Bayley said “A law of Preventive detention sanctions the confinement of individuals in order to prevent them from engaging in forms of activity considered injurious to the community and the like hood of which is indicated by their past action”[7]
According to Article 3 of the Special Powers Act-1974[8], if the concern executive authority is personally satisfied that there is sufficient cause of suspicion against any person of committing any of the acts prohibited by the Special Powers Act, he can give order for punitive detention.
So preventive detention means the confinement in a secure facility of a person who has not been found guilty of a crime. We can also say that preventive detention is holding of an accused in the custody of a law enforcement agency, to prevent the accuser’s escape or risk of harm to others.
2.2 Development of Preventive Detention
In R. vs. Halliday[9], the expression, the word Preventive detention was used in Britain first time. Preventive detention was first introduced in our sub-continent in1818 by the Bengal State Prisoners Regulation iii. Under this regulation the Governor-General was authorized to order detention and for this purpose he was invested with wide discretion; the jurisdiction of a court of law to question the legality was barred. Under this regulation detention order could be made only on grounds connected with the maintenance of public order and a person could be detained without trial for an unlimited period. The Presidencies of Madras and Bombay made similar regulations in 1819 and 1827. Later on under the authority of the Government of India Act, 1919 several emergency Power Ordinance were promulgated. Also the Anarchical and Revolutionary Crimes Act, 1919 popularly known as the Rowaltt Act was passed. In 1935 through Government of India Act, provided for scope of Preventive detention and under the Defense of India Ordinance was promulgated. Afterward it was transferred into the Defense India Act 1939 and continued during the period of the World War ii and was in force till 6 months after the war ended in 1945.
Besides the two instrument i.e. the Defense of India Act, 1915 and of 1939 of First and Second World War dealing with preventive detention in in war time several ordinances dealing with Preventive detention were promulgated both under the Government of India Act of 1919 and of 1935. Needless to say that these preventive laws in peace time which are alien to the British systems, were made and used by the British rules with a view to perpetuating their colonial interests and rule. “Hundreds and thousands of Indians both Muslims and Hindus and almost all their leaders had suffered imprisonment or regours of these laws in some way or other. Particularly a detention without trial was considered by all during the Indian Independence movement as a crime against humanity”[10]. But it was the fact though it was unfortunate that after partition and independence both the Pakistan and India retained these laws in peace time. The Indian Constitution empowers the parliament to legislate on preventive subject to limitation laid down by Article 22[11].
In India the Preventive detention was enacted in 1950 as named “Preventive Detention Act,1950”. Afterward it was amended and replaced by Maintenance of Internal Security Act, (MISA) 1971. Preventive detention also introduced by Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) 1974, National Security Act 1980, The Essential Services Maintenance Act (EMS) 1981, and lastly by the Terrorist and Disruptive Activities (Prevention) Act 1985.
In Pakistan through Public Safety Ordinance Act 1949[12], Public Safety Act (Amendment) 1950[13], Public Safety Ordinance 1952 and lastly The Security of Pakistan Act 1952 were provided Preventive detention in various ways. The constitution of Pakistan of 1956 and 1962 empowered and also constitution of1973 empowered parliament of Pakistan to enact Preventive detention laws.
Immediately after independence the constitution of Bangladesh was adopted on 4th November, 1972 and it came into force on 16th December, 1972. Taking the bitter experience of arbitrary arrest and detention under various preventive laws during the 23-year history of Pakistan into serious consideration the Constitution makers did not want to leave any scope for preventive detention.
In Bangladesh the original constitution, there was no provision in support of Preventive detention. But through 4th amendment by “The Special Powers Act1974” (9thFebruary) enacted Preventive detention act which was an anti-people black law still continuing. After enacting the provision by the Special Powers Act, Sheikh Mujibur Rahman used Preventive detention against the tribal people of Chittagong Hill Tracts, and against the suspected members of Jatio Shomajtantirik Dol and Shorbohara Party. President Ershad govt. used this Preventive detention against Awami League and BNP during his regime (1982-90). But unfortunately two elected party BNP Govt. (1991-95) and Awami League Govt. (1996-2001) used it to oppress the opposite party severely.
2.3 Nature and Justification of Preventive Detention
For every matter, there is nature and justification behind it. The nature of Preventive detention is different from the nature of punitive detention. The word Preventive detention is used in contradiction to the word punitive detention.[14] Few people have described both actions as restraint of individual’s freedom and personal liberty[15].
When a person comes within the satisfaction of the government authority that a person is going to commit prejudicial acts[16], he may be detained by Preventive detention to defend him from doing that act. In Sasti vs. State of West Bengal[17], Indian Supreme Court elucidated the nature of Preventive detention as a detention of a person without trial in such circumstances that the evidence in possession of the authority is not sufficient to make a legal charge or to secure the conviction of the detenu by legal proof but may still be sufficient to justify his detention. On the other hand, the philosophy lying behind the preventive detention is the greater interest and security of the state and nation because National Security is more important than the personal liberally of citizen. Justifying the measure Lord Atkinson in R. vs. Halliday said, “…..where preventive justice is put in force some sufferings and inconveniences may be caused to the suspected persons. This is inevitable but the suffering is….inflicted for something much more important than his liberty or convenience, namely for securing the public safety and the defense of the realm”[18].In the same case Lord Finlay has said, “Any preventive measure even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the state”[19].
Similar view also expressed by Lord Alfred Denning. He said, “If there are traitor in our midst, we cannot afford to wait until we catch then in the act of blowing up our bridges or giving our military secrets to the enemy, we cannot run the risk of living then at large, we must detention then suspicion”[20].
Regarding preventive detention the Indian Supreme Court observed, “That appears to have been done because the constitutions recognize the necessity of preventive detention on extraordinary occasion when control over public order, security of the country, etc., are in danger of breakdown. But while recognizing the need of preventive detention without recourse to the normal procedure according to law, it provided at the same time certain restrictions on the power of detention, both legislative and executive, which it considers as minimum safeguards to ensure that the power of such detention is not illegitimately or arbitrary used”[21].
2.4 Preventive Detention and Human Rights
Right against arbitrary arrest and detention is one of the important element of Human Rights emphasized by numerous international human rights instrument. Preventive detention, though an evil, is sometimes a necessity for state security. Although this detention has to be only under special circumstances and with accordance with the due procedure of law. Unlawful detention affects several other rights guaranteed by the Constitution consequently it violates Human Rights of a person.
Amongst the national institutions, the judiciary always comes in the forefront of the national systems for the protection of human rights. One of the main functions of the judiciary is to protect human rights guaranteed in constitutions and laws. In protecting human rights, the function of the judiciary is to oversee the way in which the diverse powers of government are exercised within the framework of laws and a set of values, and to protect individuals from arbitrary governmental action.[22]
Preventive detention is a serious encroachment upon the personal liberty of a person, for the simple reason that, unlike ordinary arrest or imprisonment, preventive detention is effected without trial. But in guise of preventive detention law, most of the times the executive authority exercise discretionary power regarding arrest and detention and violates human rights.
2.5 Preventive Detention and Punitive Detention
Punitive detention is the detention as a punishment for the crime committed by an individual. It takes place after the actual commission of an offence or at least after an attempt has been made. The time taken from actual offence to detention can vary in length. It is a punishment imparted to the wrongdoer and involves strict measures. The duration of such a detention depends on what the law stipulates for the particular offence.
Preventive detention is the detention made as a precautionary measure. This kind of detention can be made by the authorities even on a slight apprehension that the person can commit a crime. It is generally made for protecting the society from any future happening. It is not a punishment but a precaution. This detention comes to an end the moment the apprehension of danger ends.
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