ABSTRACT
The preventive detention laws in India are constitutionally provided through Article 22. These kinds of laws provide the government with the ability to arrest people in the anticipation of threats to the security of the state. Recent patterns establish the expansion of such laws to online posts on the internet in the form of videos and statements meant to incite violence. This paper will discuss the constitutional conflicts arising from such laws as they stand in relation to Articles 21 and 25 of the Indian constitution as well as the criminal law requirements to establish guilt prior to any punitive action.
KEYWORDS
Preventive detention, online expression, Article 19(1)(a), Article 21, public order, criminal justice, free expression.
INTRODUCTION
Preventive detention occupies a twilight realm that diverges from the usual criminal justice scenario because it entails imprisonment on behalf of potential, not actual, wrongdoing. In today’s digital India, in which social platforms magnify speech, the government wields this extraordinary measure against speech that can be labeled as disruptive, whether this is communal speech, politics, or otherwise. This approach raises deep concerns about the erosion of liberty within democracy.
As Supreme Court jurisprudence has often cautioned, preventive detention is always a last resort, not an instrument to be used as a matter of course, although evidence indicates its encroachment into cyberspace, largely without due process protections found in criminal law.
LEGAL FRAMEWORK OF PREVENTIVE DETENTION
The Indian Constitution has a special provision for preventive custody via Article 22(3)–(7), which sets it apart from others that are penal via Article 20(3), safeguarding against self-incrimination following arrest for a criminal offense. The main PVMD laws are National Security Act, 1980), also known as NSA, along with state laws known as Public Safety Acts, which allow for detention for a period not exceeding three months, but may be extended post-reviews.
Such laws are aimed at either ‘maintenance of public order’ or ‘security of state,’ which are narrower in scope than ‘law and order’ as understood in Ram Manohar Lohia v. State of Bihar AIR 1966 SC 740. Reasons must be given to the detenus in Article 22(5), but they are entitled to legal representation, and yet broad language was used.
ONLINE SPEECH AND PREVENTIVE DETENTION
Social networking reach has led to an expression that tests the call for preventive detention in the case of tweets deemed to incite riots or communal disturbances. Examples from cases involving UAPA, NSA, or local legislation include tweets, ‘WhatsApp forwards,’ or ‘YouTube clips’ that have been deemed ‘prejudicial’ to an actual offense that may not yet have occurred. For example, ‘Activists and journalists have been detained in several states for their online statements deemed anti-national or provocative.
This trend quickened following the protests and communal clashes in the aftermath of the year 2020, in which online speech led to arrests without evidence of actual damage. This effect confuses speech with a threatening risk, to the detriment of the medium, given the viral but transient nature of online communications.
CONSTITUTIONAL CONCERNS
Under Article 19(1)(a), freedom of speech is assured, to be restricted only by reasonable and present laws under Article 19(2) for the sake of public order or security. The case of Shreya Singhal vs. Union of India (2015) 5 SCC 808 declared that section 66A of the Information Technology Act is ultra-vires and that there must be a focus to prevent chilling effects both of which are breached through preventive detention that antedates speech without proving incitement.
Article 21 stipulates procedure “established by law” that must be “fair, just and reasonable” under Maneka Gandhi v. Union of India AIR 1978 SC 597. Indeed, subjective satisfaction in cases of preventive detention remains difficult to sustain under current jurisprudential interpretations under A.K. Gopalan’s inheritance regarding reasonable scrutiny by courts. Online activities amounting to detention may thus fall under thought-captivity by incarceration.
CRIMINAL LAW PRINCIPLES AT STAKE
Criminal jurisprudence is founded on notions of guilt ascertained through a trial, the presumption of innocence, and a punitive approach post-sentencing. All such norms are turned upside down by the pre-crime approach of preventive detention. The Bharatiya Nagarik Suraksha Sanhita (BNSS), replacing the CrPC, emphasizes freedom as a norm in the presumption of bail, but preventive detention bypasses this and relies on suspicion alone.
Misuse appears in self-renewing machine orders that recycle previous incidents, and in failure to consider the speech itself in contravention of section 50-like disclosures in CrPC. Judicial review by writ jurisdiction reveals inadequacies that result in the quashing of orders that lack recency and concreteness, as in recent supreme court cases.
JUDICIAL SAFEGUARDS AND MISUSE PATTERNS
“Live links” between past offenses and threatened danger, proximity of time, and specific facts must be established, instead of ipse dixit grounds. But figures provided by NCRB reveal that detentions have been increasing, with more citations for online speech under the intermediary liabilities of IT Rules 2021. Victims of abuse, generally marginalized voices, would suffer imprisonment, ruining of socioeconomic status, and stigma, reminiscent of the colonial Rowlatt Acts.
WHAT IS CHANGED BY THE BNSS?
The BNSS supports CrPC’s undertrial release on half maximum term (Section 479 analogy) in order to restrict undertrials by extending timelines for investigations and trials. The role of victim inputs is emphasized, including hardening positions in speech offenses, but discretion is still allowed in non-bailable instances.
For online speech detainees, the BNSS timelines help indirectly by expediting reviews by the board, while ignoring underlying problems such as magistrate abuse and speech as crimes.
PREVENTIVE DETENTION REFORM REQUIRED?
“Public order” thresholds are too vague to prevent abuse, but legislatively constrained to the same standards for incitement as Section 153A IPC. Prior hearings before mandatory detention and speech-related exemption would possibly comply with Article 19. However, trends in judicial jurisprudence reflect stricter standards for testing speech; but enforcement remains weak. Socio-economic biases are added to the effects, reflecting bail difficulties in which sureties do not include the poor—trends enhanced by preventive detention without changes.
PRACTICAL IMPLICATIONS
It becomes essential to distinguish hyperbole in cyberspace from threats through forensic science. The advent of digital forensics gives room for proportionality, but training needs remain unfilled. The active deletion of cases in courts deters abuse, but crowded dockets prevent expeditious action.
CONCLUSION
The gap between the needs of national security and the right of free speech, as manifested through preventive detention for cyberspace communications, is a dangerous nexus that has stretched the social contract between the constitution and the citizens of India to its furthest limit. Although the system has safeguards, the pervasiveness of abuse highlights the need for specific legislation, a vigilant judiciary, and the development of liberational norms for the right of free speech in cyberspace communications.
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WRITTEN BY: ARCHITHA MANIKANTAN
