Rowlatt Act another dutiful Act introduced by the Imperial Legislative Council in 1919, officially named the Anarchical and Revolutionary Crimes Act. Due to the able and pleasing governance of the British in India, the revolutionary and extremist ideas brimmed among the people especially among the youth of the country. British, now, having too many territories to handle had to maintain an iron fist on all its colonies and thus in India introduced a bill that could enable the rulers to have unlimited and unquestionable power to imprison without trial or warrant anyone that sought to question British policies or challenge their power, for upto 2 years. “A juryless trial, anonymity of accuser and evidence” -Sir Sydney Rowlatt, truly in word and spirit was anti-Indian. This infamous Act marked the beginning of the Gandhian Era and also active independent struggle.
Post independence the laws of India were greatly influenced by the common law. The British rule evidently made a mark on the Indian administration especially on the judicial wing of the state.The System and proceedings have a splitting resemblance. The courts of India still close for winter breaks, which was initially instituted for the British Judges to visit their homes back in the United Kingdom.
Preventive Detention thus can be compared and contrasted to the erstwhile Rowlatt Act. It can be considered to be more reasonable, justifiable and in general in good faith to the people and nation, though it is a denial of liberty, as it aims to avoid any disturbances of public tranquillity and peacekeeping. Thus it finds its place in the Indian Constitution under the Fundamental Rights.
It is justifiable as the provisions are more justifiable and can be reasoned with, unlike the Rowlatt Act. The Preventive Detention calls for the best interest of the society by incarcerating accused before a trial when convinced that their release can cause trouble in the society. The framers who have been long subjected to more stringent preventive detention laws also write down safeguards for the accused:
(i) A person can be taken under preventive detention for only three months and if he has to be kept detained for longer, an approval from the Advisory Board must be obtained. The Advisory Board shall consist of people with the qualifications for appointment as a judge of the High Court.
(ii) The detainee or accused is entitled to know the reason for his detention though it is upto the state, considering the public interest to whether or not to disclose the same. This might lead to the arbitrary use of the Preventive Detention laws by the state. As once observed during the Emergency Period declared by Indira Gandhi, MISA(Maintenance of Internal Security Act ) that gave unlimited power to the government to detain any person they deemed to be a threat to the internal and external security and peace. It was however repealed in 1977 when Indira Gandhi lost the general elections to the Janata Party.
(iii) The detaining authorities must give the detainee the earliest opportunities for making representation against the detention.
Though it is humane when compared to the Rowlatt Act, it is a strong tool for tyranny in the hands of an overzealous executive wing. It can easily be utilized for factional or personal interests and benefits. Thus the constitutional validity of the Preventive detention laws has been a long debated question. From the Abdul Karim v.s State of West Bengal Case(1969) to the 2014 case – Subhash Popatlal v.s Union of India, this question has been relevant throughout. The Supreme Court in the Hemm Lal Bhandari v.s State of Sikkim (1978) held that:
“It is not permissible, in matters relating to the personal liberty and freedom of acitizen, to take either a liberal or a generous view of the lapses on the part of the officers. In matters where the liberty of the citizens is involved, it is necessary for the officers to actwith utmost expedition and in strict compliance with the mandatory provisions of law. Expeditious action is insisted upon as a safeguard against manipulation.”
Over the years of cases, the Courts have ruled, for the best interest of the citizens, that the detention powers can not be used to subvert, supplant or substitute punitive laws of the Indian Penal Code. The court also held that the detainee is to be informed of the cause of detention and also provided the right to the detainee to get help from an acquaintance who is not a legal practitioner to appear for him before the Advisory Board. The Apex court held that the order for preventive detention can be quashed if it is proven to be mala fide.
Thus Preventive Detention can be said to be a logical and progressive law relative to the Rowlatt Act, Is it actually completely and utterly used for its designated and oriented purpose is a question. Is it being overused or underused has been a constant query raised before the court amounting to over 120 writ petitions and an umpteen number of cases questioning the particulars of detentions of certain people like Chandra Shekar Azad, Khaleef Khan and others.