Preventive detention laws need review

The Supreme Court’s observations on preventive detention last week are in line with its restrictive view on the use of this power by the governments, given in many judgements in the past. It has again said that preventive detention laws are a colonial legacy that give arbitrary powers to the State that should be exercised with utmost caution and proper application of mind. It set aside a UP government order under the National Security Act against a legislator who was charged with threatening officials. It also quashed the detention of another person who had allegedly violated provisions of foreign exchange rules. The court said it was amazed that the UP government was slapping NSA provisions on the slightest pretext for detention of persons. The stated original intent of the law was to detain persons only if there was an immediate danger to peace. The court has in the past also said that the law can be invoked only if the commission of offence cannot be otherwise prevented.

The court has over the years narrowed the scope of the law and imposed many conditions and safeguards against its misuse. But it continues to be widely misused and there are many such cases. One person was held under the law in Telangana for allegedly selling bogus chilli seeds. Detenus often find it difficult to get relief from courts and when they get it, it is after spending many months in detention. In some cases, the detention orders are quashed after the full term of detention. Detenus are often not informed of the grounds for detention and the copies of orders are sometimes illegible. Courts have often pointed out the procedural flaws in the orders and insisted that the procedures should be adhered to strictly. The Supreme Court has said that every lapse of procedure must benefit the detenu. But the problem posed by these laws goes beyond procedures.

The National Crime Records Bureau figures show that there was a 23.7 per cent increase in the number of preventive detentions in 2021. States have their own detention laws, and these are also rigorously used. The laws are also being used for political reasons. Since the many conditions and safeguards prescribed for the use of the laws have been unable to prevent their misuse, there is a case for scrapping the laws altogether. They are an affront to personal freedom. They do not agree with the spirit of the basic axiom of the rule of law that no one should be considered guilty till found to be guilty by the court. So, it is unreasonable to detain a person just because of the suspicion that he may violate a law. The laws need a review.