The two sections from the Code of Criminal Procedure, when read together give the police the power of
preventive detention.
Preventive detention, a method solely reserved by the government to detain an individual, withholding his/her freedom, without the prior awareness of the courts about the matter, is always seen as an indicator of autocracy, the degree of which depends on the extent to which an individual’s right are repressed without the participation of the judiciary. Thus on the basis of this, a proper liberal democracy would have minimal
Preventive detention measures available for the government. The Indian government for instance has through
legislation passed several acts on central as well as the state level giving the powers of preventive detention in special cases, besides the sections provided in the CrPC. These laws namely Prevention of Terrorism Act, 2002 (POTA), a successor of Terrorist and Disruptive Activities (Prevention) Act (TADA) were brought up time and again to give boost to the government at fighting terrorism by providing it extraordinary powers like detention of an individual up to 180 days without filing of charges in the courts. These laws being controversial, as they were suspected to be tools of political vendetta are soon to be scraped. Repealing POTA is under way for now, and it is clear that the government is finding new ways of fighting terrorism through less harsh and direct means. Looking at any law prima-facie would not give a proper indication of the implementation of it in the practical world by less legally literate police personnel. As in the cases of section 107 read with section 151 of the CrPC, we see that the legislation gives the police only 24 hours to detain an individual without filing charges in the courts. These charges should be those of a cognizable offence and the individual must be shown before the Executive Magistrate under whose jurisdiction the individual was arrested from or the individual is from. The executive magistrate then may let the individual out on bail, if the matter is not as serious or may send the individual to judicial custody. The legislation thus has many checks on any apparent misuse by the police. However, the application of these laws is quite different, where we have the police not understanding the spirit of the legislation and detaining individuals for minor complaints where they pose no future threat to the peace of the society. The police also due to the ambiguous language of these provisions, find it an easier route to detain individuals for harassment or for imprisoning individuals who have committed cognizable offences under other acts, like NDPS Act. In order to file a report more conveniently the police, rather then charge an individual under an act like NDPS, which is a cumbersome process for them as it includes collecting evidence and investigating, goes instead for these provisions, which are easier to report. The Special Executive Magistrate, an officer of the rank of Additional Commissioner of Police (ACP), acts as the Executive Magistrate as provided in the provision to safeguard the individual’s rights, and the detainee is shown before him within 24 hours. This is the stage, which the legislation provides to check further wrongful detention of an individual. Here the Magistrate is to check the charges and whether further detention of the detainee is required. Here again due to lack of proper legal awareness and a laissez-faire attitude, the magistrate may not check charges, as often they do not amount to cognizable offences by any chance or may even send the bail’s surety for verification even when they have proper ID, and thus the detainee comes into judicial custody wrongfully. Thus it is evident that though the spirit of the legislation is right, the implementation is not done in the fair spirit. Amendment of the provisions may give only temporary relief as it is more to do with the attitude of the law enforcement agencies, as in the case of TADA or POTA, which were used more in cases of political vendetta than for prevention of terrorism. The law enforcement agencies should be sensitized and given the right education so that they do not use these provisions improperly. Therefore it will be right to conclude taking these provisions as an example, that merely legislating does not give a solution to a problem, it is the execution that matters most. As preventive detention being misused is major resource wastage for the law enforcement agencies, if restricted it may help manage resources more aptly.