Prevention Detention- A necessary evil

The power of preventive detention has been recognized as a necessary evil and is tolerated in a free society in the larger interest of security of the State and maintenance of public order. It is a drastic power to detain a person without trial and there are many countries where it is not allowed to be exercised except in times of war or aggression.

Provisions for Preventive Detention in our Constitution

Our Constitution does recognize the existence of this power, but it is hedged-in by various safeguards set out in Articles 21 and 22.

Art. 22 in clauses (4) to (7), deals specifically with safeguards against preventive detention and any law of preventive detention or action by way of preventive detention taken under such law must be in conformity with the restrictions laid down by those clauses on pain of invalidation.

But apart from Art. 22, there is also Art. 21 which lays down restrictions on the power of preventive detention.

Current Position on Article 21

The position now is that Art. 21 as interpreted in Maneka Gandhi’s case requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful and it is for the Court to decide in the exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure, which is reasonable, fair and just or it is otherwise.

Rights of Preventive Detainees

The question which arises is whether a person preventively detained in a prison has any rights which he can enforce in a Court of law. Once his freedom is curtailed by incarceration in a jail, does he have any fundamental rights at all or does he leave them behind, when he enters the prison gate? The answer to this question is no longer res integra. It has been held by this Court in the two Sunil Batra cases that

“fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration.”

The prisoner or detenu has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarceration. Even before the two Sunil Batra cases, this position was impliedly accepted in State of Maharashtra v. Prabhakar Sanzgiri and it was spelt-out clearly and in no uncertain terms by Y.V. Chandrachud, in D. B. Patnaik v. State of Andhra Pradesh:

Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails to by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to “practice” a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment. Likewise, even a convict is entitled to the precious right guaranteed by Art. 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law.”

This statement of the law was affirmed by a Bench of five Judges of this Court in the first Sunil Batra case and by Krishna Iyer, J. speaking on behalf of the Court in the second Sunil Batra case. Krishna Iyer, J. in the latter case proceeded to add in his characteristic style;

“The jurisdictional reach and range of this Court’s writ to hold prison caprice and cruelty in constitutional leash is incontestable” and concluded by observing;

“Thus it is now clear law that a prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through ‘writ’ aid. The Indian human has a constant companion-the Court armed with the Constitution.”

 It is interesting to note that the Supreme Court of the United States has also taken the same view in regard to rights of prisoners. Mr. Justice Douglas struck a humanistic note when he said in Eve Pall’s case:

“Prisoners are still persons entitled to all constitutional rights unless their liberty has been constitutionally curtailed by procedures that satisfy all the requirements of due process.”

So also in Charles Wolff’s case, Mr. Justice White made the same point in emphatic terms.

“But, though his rights may be diminished by environment, a prisoner is not wholly stripped off constitutional protections, when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country.”

Mr. Justice Douglas reiterated his thesis when he asserted:

“Every prisoner’s liberty i.e. of courses, circumscribed by the very fact of his confinement, but his interest in the limited liberty left to him is then only the more substantial. Conviction of a crime does not render one a non-person whose rights are subject to the whim of the prison administration, and therefore, the imposition of any serious punishment within the system requires procedural safeguards.”

Mr. Justice Marshall also expressed himself clearly and explicitly in the same terms:

“I have previously stated my view that a prisoner does not shed his basic constitutional rights at the prison gate, and I fully support the court’s holding that the interest of inmates in freedom from imposition of serious discipline is a ‘liberty’ entitled to due process protection.”

What is stated by these learned Judges in regard to the rights of a prisoner under the Constitution of the United States applies equally in regard to the rights of a prisoner or detenu under our constitutional system. It must, therefore, now be taken to be well-settled that a prisoner or detenu is not stripped of his fundamental or other legal rights, save those which are inconsistent with his incarceration, and if any of these rights are violated, the Court which is to use the words of Krishna Iyer, J., “not a distant abstraction omnipotent in the books but an activist institution which is the cynosure of public hope,” will immediately spring into action and run to his rescue.


Francis Coralie Mullin vs The Administrator, Union Territory of Delhi: 1981 AIR 746, 1981 SCR (2) 516