Q) How far it is prudent to arrest a citizen even before commitment of a crime? Justify your answer with reasons in the context of preventive detention laws. (150 Words)
Source: The IE Editorial Page: THE BENCHMARK
GS 2: Polity
Introduction: Article 22 of the Indian constitution empowers the union and state legislatures to allow preventive detention up to three months and in exception cases beyond three month upon authorization by a competent advisory board. This is done on the ground of suspicion that a person may commit a crime in the near future. For this the Parliament has passed many laws for example Preventive detention act, 1950, Maintenance of Internal Security Act(MISA), 1971 and National Security Act(NSA), 1980. Of these all except NSA have been repealed expired.
The Law: The NSA empowers the Union Government & State Governments to detain a person to prevent him from acting in any manner prejudicial to :
1. the Defence of India,
2. Relations of India with foreign powers,
3. Security of India,
4. With respect to any foreigner with a view to regulating his continued presence in India.
Prudence of Preventive detention act:
1. To control secessionist and antisocial forces: It is been felt since the time of independence that many such forces are working to create disharmony in the country.
2. No other tool against terrorists: Many a time there is a sufficient reason to believe that a person is involved in an act of terror. Security forces need a law to make an arrest before commission of the crime.
3. A tool against enemies of the nation: This can be used against persons such as spies and those who commit seditious acts.
4. Adequate safeguard against misuse: The constitution allows longer arrests only by advisory board consisting of members qualified to be Judges of the High Court.
Arguments against such an act:
1. Subjective application: Governments apply such act on subjective satisfaction of the law enforcement agencies and thus goes against the rule of law.
2. An extra-judicial power: The government can arrest a person without any proof of crime, without the permission of the court or magistrate.
3. Historical Backlog: Preventive detention as a tool was used by the British Government through Enactments like Bengal Regulation act, Rawlatt Acts, Defence of India acts to silence criticism.
4. Against Democratic Principles: No democratic nation has made Preventive detention a part of the constitution. Even the Preventive detention act of 1950 had an expiry date of 1969 which was to apply only till the violent phase of post independence had last.
5. Overuse of the Law: For example in the recent times, in Uttar Pradesh, over the last three years, out of the 120 habeas corpus petitions that came before the Allahabad High court under the NSA, more than half of the preventive detentions of 94 individuals were struck down.
6. Availability of Alternatives: The law enforcement agencies can use Unlawful Activities prevention Act(ULPA), 1967 and Terrorist and disruptive activities(TADA) act, 1985, to prevent terrorist activities. These acts give powers not only to detain and investigate, but also to cease properties of those who are designated as terrorists under the act.
Conclusion: Therefore, there are various concerns of the misuse of the act by the law enforcement agencies. However, in various cases where a person cannot be defined as a terrorist and yet is prejudicial to the interests of the country, NSA becomes helpful. Thus preventive detention is prudent in certain cases. Nevertheless, care must be taken that the authorities don't overuse the law. For this adequate legal awareness training must be provide for the agencies.