Source: The Hindu
Manifest pedagogy:Preventive detention is a controversial subject matter in Indian constitution. There is a tussle between Individual freedom and need for Societal and state security in preventive detention. Indian constitution provides for Preventive detention along with numerous safeguards to prevent its misuse. With the amendments to Article 370 in Indian constitution and the subsequent disturbances in Jammu and Kashmir the provisions of detention are being repeatedly invoked. This makes it an area of interest for UPSC for Polity section in Paper 2 and Internal security section in Paper 3.
In news: Farooq Abdullah, a three-term Chief Minister of J&K, is under detention.
Placing it in syllabus: Fundamental rights- writs
- Constitutional provisions on detention
- Public Safety Act
- Haebas corpus- what is it , when can be it issued, conditions to file it (in detail)
Current dimensions: Detention of Farooq and issue of children detention
Content:Farooq Abdullah, Lok Sabha MP and former chief minister of Jammu and Kashmir, is under detention under the stringent Public Safety Act (PSA).
Detention of Farooq and issue of children detention:
- Farooq Abullah was reportedly detained under the PSA which is applicable to J&K and allows detention of any person without a trial for two years.
- Abdullah is the first Chief Minister to have been detained under this law.
- On August 6 in Parliament, Home Minister Amit Shah had said that Abdullah had neither been detained nor arrested.
- On the same day, Abdullah while speaking to TV channels had said that he had been kept under arrest in his house.
- Abdullah’s son Omar Abdullah, himself a former chief minister, and Mehbooba Mufti, also a former chief minister, have also been under detention since August 5.
- As a habeas corpus petition was filed by Rajya Sabha MP and MDMK leader Vaiko to know the whereabouts of his “friend” and colleague, the Supreme court issued notices to the Centre and the State and fixed Vaiko’s plea for hearing on September 30,2019.
The Supreme court has simultaneously termed as “very very serious” the allegation that it is very difficult for people in the J&K to access the High Court. This particular issue was pertaining to a PIL seeking SC’s intervention on the issue of detention of children in the State.
- The Supreme Court has assigned the J&K High Court’s Juvenile Justice Committee to inquire into allegations of illegal detention of young children by the security forces in J&K.
- Solicitor General Tushar Mehta however objected to the issuance of notice or mention in the order of “detention of children”, as it would have huge and wide repercussions.
- But the court did not concede to the request and maintained that the panel should initiate an inquiry into the allegations.
Constitutional provisions on detention:
Article 22: Protection against arrest and detention in certain cases
(1) No person who is arrested shall be detained in custody without being informed of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) If a person is an enemy alien or is arrested or detained under a law providing for preventive detention, then the protection against arrest and detention under Article 22 (1) and 22 (2) shall not be available.
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless an Advisory Board consisting of persons who are qualified to be appointed as Judges of the High Court has opined that there is sufficient cause for such detention.
(5) When any person is detained under preventive detention, the authority making the order shall communicate to such person the grounds on which the order has been made and give him the earliest opportunity of making a representation against the order.
The grounds for Preventive detention are—
- security of state,
- maintenance of public order,
- maintenance of supplies and essential services and defence,
- foreign affairs or security of India.
A person may be detained without trial only on any or some of the above grounds. A detainee under preventive detention can have no right of personal liberty guaranteed by Article 19 or Article 21.
Note: Preventive detention is different from punitive detention. Punitive detention is punishment for illegal acts done. Preventive detention on the other hand is action taken beforehand to prevent possible commitment of crime.
Public Safety Act (PSA):
- The law was introduced by Sheikh Abdullah in 1978 in order to prevent timber smuggling, and keep the smugglers “out of circulation”.
- After the emergence of militancy, the J&K government frequently invoked the PSA to crack down on separatists.
- The PSA allows for administrative detention for up to two years “in the case of persons acting in any manner prejudicial to the security of the State”, and for administrative detention up to one year where “any person is acting in any manner prejudicial to the maintenance of public order”.
- In the aftermath of the killing of Hizbul Mujahideen commander Burhan Wani in July 2016, hundreds of youths in the Valley were detained under PSA, with extendable detention periods.
- In August 2018, the Act was amended to allow individuals to be detained under the PSA outside the state as well.
- Detention orders under PSA can be issued by Divisional Commissioners or District Magistrates.
- The detaining authority need not disclose any facts about the detention “which it considers to be against the public interest to disclose”.
- Section 22 of the Act provides protection for any action taken “in good faith” under the Act.
What happens after PSA is used?
- Within four weeks of passing the detention order, the government has to refer the case to an Advisory Board.
- This Advisory Board will have to give its recommendations within eight weeks of the order.
- If the Board thinks that there is cause for preventive detention, the government can hold the person up to two years.
The person detained has limited rights.
They do not have the right to legal representation and cannot challenge the arrest unless sufficient grounds can be established that the detention is illegal.
Habeas Corpus:The Writ Jurisdiction of Supreme Court can be conjured under Article 32 of the Constitution for the infringement of central rights ensured under Part – III of the Constitution. Similarly Article 226 deals with the writ jurisdiction of high courts. The Supreme Court has been made the defender of the Fundamental Rights.
One of the important writs for individual freedom is “Habeas Corpus” which signifies “You may have the body”. It first originated in 1215, in 39th clause of Magna Carta, signed by King John. It is used to secure a person who has been detained unlawfully or illegally.
Habeas Corpus writ is called “Bulwark of Individual Liberty against arbitrary detention”.
- It is an exception such that anybody on behalf of the detainee can file a petition.
- It is applicable to preventive detention also.
- It can be issued against both public authorities as well as individuals also.
When can it be issued?
When the detention is :
- not according to law.
- not strictly following the procedure established by law.
- when invalid law is followed ( if the law infringes Fundamental Law).
- exceeds the law enacted by legislature.
Who can apply?
Not only the prisoner or detained, but any other person who knows the merits of the case, acquainted with the facts and circumstances and has recognized interest in moving of such application in front of the court can apply under Art. 32 and Art. 226 of the Constitution.
Conditions of refusal:
i) when the person or authority i.e. detainer does not come under the territorial jurisdiction of the court,
ii) when the imprisonment is in nexus with the order or decision rendered by the court,
iii) when the detenu has already been set free,
iv) when the writ is sought during emergency situations
v) when the petition has been dismissed by a competent court by looking into the merits.
Limitation for Habeas Corpus:
‘Though a writ of right, it is not a writ of course’ – means it provides only procedural remedy (guarantees against any detention that is forbidden by law), but it does not provide any other remedy (does not protect any other rights such as fair trial etc.)