Preventive Detention Vis-À-Vis Rule of Law in India- A Critical Study

Abstract

The principle of the rule of law is increasingly threatened in the war against terrorism. The preventive detention law, enacted in post-independence India, grants the state vast powers to arrest and detain anyone before the commission of a crime. These powers can be exercised by the state against a person who may be a threat to the security or public order of the State. Such laws that emphasize on detaining a suspect restrict the liberty of individuals who may not have even committed a crime. A person detained under the Preventive Detention Law is neither charged nor brought to trial and denied constitutional protection of rights guaranteed under Article 22 of the Constitution of India. The courts are precluded from determining the legality of any such order passed by the government. Further, the presumption of innocence of the accused until proven guilty, which forms a cardinal principle of criminal law, is compromised. Such unbridled powers vested in the State entail grave violations of human rights and fundamental freedom of the detainee and threaten the rule of law. This paper explores the necessity and rationale of preventive detention laws to counter terror and the role of the judiciary in averting the misuse of such laws. It outlines instances where the incumbent governments have sought to use this legislation as a weapon to suppress dissent and crush opposition. The author argues that it is significant to enact strict laws to deal with grave offenses, but necessary safeguards should be incorporated within the realm of legal framework to protect the most fundamental rights of the detenue and prevent their potent abuse by the state.