Preventive Detention Laws

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Preventive Detention Laws legal instruments applied by the executive primarily to detain any person without any charge and trial. Seemingly, these instruments run parallel to the penal laws that include all the grounds for which the detention law in general is enforced. Preventive detention has three specific features, first, it is detention and not imprisonment; second, it is a detention by the executive without trial or inquiry by a court; and third, its object is preventive and not punitive. The concept of preventive detention in operational terms seems to have been in existence in some forms since the early period of British rule in India. The departure of the British from India in 1947 leaving many unresolved issues led India and Pakistan to adopt preventive detention statutes. Pakistan adopted preventive detention statutes much before it had a Constitution. Bangladesh retained most of the statutes that were adopted by Pakistan.

The British settlement in India began through the east india company's domination over all aspects of life after it assumed the revenue collection authority (diwani) of Bengal. The early statutes such as the Regulating Act of 1773 and the Permanent Settlement Act of 1793, though not specifically meant to be statutes for preventive detention, did directly encroach upon the fundamental rights of the local people. The first statutes which contained specific provisions for preventive detention were the East India Company Act 1784 and the East India Company Act 1793. The imposition of martial law through the Bengal State Offences Regulation 1804 remained enforceable for 118 years till it was repealed by another law in 1922. The Foreign Immigrants Regulation 1812 contained provision for detention, though meant for the foreigners, which included those who were settled in Bengal for generations. The East India Company promulgated the Bengal Prisoners Regulation 1818 containing specific provisions for preventive detention. It was truly a preventive detention statute which remained in force till 1947.

The Code of Criminal Procedure 1898, enacted with limited power for detention was followed by the ingress into India Ordinance 1914 and the Defense of India Act 1915 which provided for much wider power for the same purpose. As the demand for freedom continued, the Anarchical and Revolutionary Crimes Act 1919 was passed which enabled the police and other government officers to preventively detain, for a limited period of time, any individual on suspicion of commission of a future offence. The Government of India Act of 1919 and the Government of India Act of 1935 containing provisions for preventive detention were the interim constitutions, of which the latter continued till partition of India in 1947, and in Pakistan it remained in force till 1956, when it was replaced by the Constitution of Pakistan. The Bengal Special Powers Ordinance 1946 also contained provision for preventive detention. As a matter of fact, this Ordinance later turned out to be a Pakistani legislation vide East Bengal Temporary Enactment and Re-enactment Ordinance 1949 containing provision for preventive detention. It was replaced by the East Bengal Preventive Detention Ordinance 1949.

By this time, Pakistan Public Safety Ordinance 1949 was passed containing provision for preventive detention, and the East Bengal Public Safety Ordinance 1951 was promulgated with wider power for preventive detention, which was followed by the Security of Pakistan Act 1952 containing provision for the same purpose. In 1953, martial law was declared in Lahore and its proclamation provided for detention. Thereafter the Constitution of Pakistan 1956 was adopted containing provision for preventive detention, but it was short-lived as martial law was proclaimed on 7 October 1958. The martial law administration issued several orders containing provisions for detention, while the East Pakistan Public Safety Ordinance 1958 was also promulgated with the same provisions for detention. This statute had been carried through to Bangladesh arena though it was supposed to become obsolete automatically by virtue of article 26(1) of the Constitution. But it remained effective till it was replaced by the Special Powers Act 1974.

The long-standing feud between India and Pakistan on Kashmir issue led Pakistan to promulgate the Defense of Pakistan Ordinance 1965 with wider power for detention, despite the existence of several statutes containing provision for the same. Under popular dissent from both East and West Pakistan, President Ayub Khan had to leave power in 1969. But he handed it over to General Yahya Khan who naturally proclaimed martial law in 1969 with wider power for preventive detention. By this time the socio-politico and legal arena in East Pakistan changed so fast that on 26 March 1971 Bangladesh was declared as an independent state, and earned its independence on 16 December 1971 after a War of Liberation. However, during the liberation war, military government of Pakistan issued the Regulation No. 78 containing provision for preventive detention, and almost at the end of the war promulgated the Defense of Pakistan Ordinance 1971 with the same provisions for detention.

The popular government adopted a Constitution without any provision for preventive detention. The original Constitution did not contain any provision that could put the state under emergency withholding the enforcement of fundamental rights of the people. But under the Constitution (Second Amendment) Act 1973, articles 26 and 33 of the Constitution were amended making provisions for preventive detention. In addition, a new part IXA was also inserted in the Constitution, which deals with emergencies during which Part III of the Constitution containing the fundamental rights could be suspended. Interestingly, however, the East Pakistan Public Safety Ordinance 1958, and the Bangladesh Scheduled Offences (Special Tribunal) Order 1972 were retained for a while to detain people into custody. The only legislation that presently contains provisions for preventive detention is the Special Powers Act 1974.

During the two martial law periods of 1975-1979 and 1982-1986, and four emergency periods of 1974-1979, 1981, 1987 and 1990 fundamental rights of the people came under serious threat and thousands of people were made victims of detention. The fundamental rights during the period of emergencies as guaranteed in Part III of the Constitution were suspended. Emergency, martial law and constitutional rule co-existed during the period of 1975-1979. During the martial law of 1982-86, the Constitution remained suspended though had partially been revived in 1985 till its full restoration in 1986.

The number of persons preventively detained by the executive authority since independence is not available. Yet, attempts have been made to prepare a working estimate of the detainees from the available number of cases, which came up before the High Court Division of the Supreme Court by way of writ of habeas corpus. The most important source seems to be the registers of the Writ Bench and Criminal Miscellaneous Benches of the High Court Division in which the cases are entered at the time of filing the writ petitions and thereafter the remarks at the end of their respective judicial decisions. The total number of writ petitions that came up before the High Court Division till 1998 since independence was 20,572 as moved by way of writ of habeas corpus under the provisions of Article 102 of the Constitution, and under section 491 of the criminal procedure code. [Quazi Reza-Ul Hoque]

Bibliography T Patel, Personal Liberty Under the Constitution of India, Delhi, 1993; VG Ramachandran, Law of Writs, Lucknow, 1990. MI Patwari, Liberty of the People: Britain and Bangladesh, Dhaka, 1987; AC Banerjee, A Comprehensive History of India, Vol. 9 (1712-1772), London, 1978.