Fiat justitia, et pereat mundus

The maxim in the heydays of Ferdinand I, said that “Justice must be done even if the world perishes over it.” The present era finds itself placed rather amusingly with regards to it.

The week which went by, Dr. Kafeel Khan had charges under NSA dropped and sent home, a free man. Hon’ble Justice Govind Mathur, CJ went on to say that the alleged speech was a call for national integrity and not one which would have divided the country.

We live in strange times, stranger because it took six months for a human being to be kept in prison and released of charges, something which anathematizes a democracy, and a vibrant democracy like ours shouldn’t be allowed to let that happen. It is not about Dr. Khan, it’s about the citizens and preventive detention.

Preventive Detention, from the days of the Brit, was to make sure that the participants of the freedom struggle were kept in check and things went the colonizers’ way. Soon, it paved the way for new laws, MISA was one.

Maintenance of the Internal Security Act was so draconian that Lalu Prasad Yadav who was jailed under it along with hundreds of others named his daughter after it. 1969-1971, 1977-1980 saw this country without any such law.

Then came the NSA with its wide powers of detention, and it became a tool in the hand of the State which was supposed to pride itself as a Welfare State was now baying for anyone who had an iota of criticism, was a non-conformist, was seen as troublesome, terrorists, history sheeters alike.

Soon, the country started seeing intellectuals as merely a class of persons having their judgments about the country from their plush residences/workplaces in Lutyens & this gave way to a latent indifference towards anyone who was different.

There is perhaps no authoritative definition of the expression ‘Preventive Detention’ (PD). The expression traces its origins in the language used by the Lord Justices in England while examining the nature of detention under the wartime provisions of the Defense of Realm Consolidation Act, 1914 which was enacted during the First World War The keyword in the expression is the adjective ‘Preventive’ which is used in contradistinction to ‘Punitive’, PD is thus not a punitive but a precautionary measure which has the rather pious object of not to punish a man for having done something wrong but to intercept him before he does it and to prevent him from doing it.

What the members of the Constituent Assembly tried to do was not to prohibit preventive detention but to incorporate safeguards against its abuse in the Constitution by limiting the period, by giving effective powers to the advisory board to review detention orders, etc.

This they failed to get. It was left to Parliament to prescribe the period and even that limit was flouted in spirit by the device, often adopted, of serving a fresh detention order a few hours after releasing the detained, advisory boards had no power to go into the merits of the detention.

Now, looking back at Dr. Khan, the only remedies he may have is wrongful imprisonment and compensation under Sec. 356-57 of the Criminal Procedure Code but even that would be subject to the Detention being arbitrary which would not be the case as per the State and concerned authorities.

If he gets through Victim compensation as Rudul Shah and others, for his illegal incarceration, ( post the judgment of Hon’ble HC at Allahabad), it may be a means of alleviating public interest or a more humane approach towards Preventive Detention.

To conclude, Preventive Detention shall be used with caution in a democratic society and the civic society needs to be at its absolute best to have unbridled powers in check. Preventive Detention acts as a bane and a boon, it depends on the way it is being utilized. Let it not be a tool to act as a catharsis to fundamental rights and basic human rights. Let it be a tool to punish hardened criminals and anti-social elements.

About the author –
Pragyan Mishra is a practicing advocate at the Supreme Court of India and the Delhi High Court. You can find him on 
LinkedIn and Instagram.

DISCLAIMER : Views expressed above are the author's own.

Leave a Reply

Your email address will not be published. Required fields are marked *