Preventive Detention

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By admin April 23, 2019 16:31

Issue : Abuse of Preventive detention law

Recent Activists detained under Preventive detention law:

  • Hardik Patel
  • Professor and activist Jayaraman, director Divya Bharathi who have agitated against the government were carried out by the Tamil Nadu police. 
  • Recently, Maharashtra Police had arrested five left-wing activists – Sudha Bhardwaj, Varavara Rao, Gautam Navlakha, Vernon Gonsalves, and Arun Ferreira for alleged Maoists links from different parts of the country

Arguments against Preventive Detention

Preventive Detention in India is considered as a Constitutional Tyranny:

  • Well, The India is one of the few countries in the word whose Constitution allows for the preventive detention during the peacetime without safeguards that elsewhere are understood to be basic requirements for protecting fundamental human rights.
  • The European Court of Human Rights has long held that preventive detention, as contemplated in the Indian Constitution, is illegal under the European Convention on Human Rights regardless of the safeguards embodied in the law.
  • South Asia Human Rights Documentation Centre (SAHRDC), in its submission to the NCRWC in August 2000, recommended deleting those provisions of the Constitution of India that explicitly permit preventive detention.
  • The Constitution expressly allows an individual to be detained – without charge or trial – for up to three months and denies detainees the rights to legal representation, cross examination, timely or periodic review, access to the courts or compensation for unlawful arrest or detention. In short, preventive detention as enshrined under Article 22 strikes a devastating blow to personal liberties.  

Safeguards needed to avoid abuse of preventive detention

Procedural safeguards to:

    • Reduce detainees’ vulnerability to torture and also discriminatory treatment
    • Prevent officials misusing preventive detention to punish dissent from Government or from majority practices
    • Prevent overzealous government prosecutors from subverting the criminal process.

Need clear guidelines for implementing preventive detention:

    • lacking clear guidance from the Constitution, courts have applied vague and toothless standards – such as the subjective “satisfaction” of the detaining authority test – to govern the implementation of preventive detention laws.
    • A well-defined criteria specifying limited circumstances in which preventive detention powers may be exercised – and these standards must be designed to allow meaningful judicial review of official’s actions.

Miscellaneous:

    • the Government should finally bring Section 3 of the Forty-fourth Amendment Act, 1978 into effect, thereby reducing the permitted period of detention to two months.
    • periodic review of the conditions and terms of detention.

Conclusion:

  • The Gardiner Committee Report highlighted: ‘”Preventive Detention can only be tolerated in any democratic society in the most extreme circumstances. It must be used with the utmost restraint and retained only so long as it is strictly necessary”
  • In keeping with the overriding spirit of the Constitution and with minimum standards of international human rights law, it is essential that the Constitutional reforms be adopted.
  • The process set in motion by establishing the National Commission to review the working of the Constitution (NCRWC) provides a unique opportunity for such an important realignment of India’s Constitution with prevailing international human rights standards.
  • The key will be the political willpower and the commitment to seeing justice done.

Question

Preventive detention law is considered as a constitutional tyranny in a democratic setup. Critically examine.

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admin
By admin April 23, 2019 16:31