THANESHWAR SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The Background : The objects and reasons of the law of preventive detention and the statutory content of it have recently undergone a sea change. While clauses (3) to (7) of Article 22 read with Article 21 enabled Parliament to validly enact a law relating to preventive detention, the statutes relating to preventive detention from 1950 onwards were generally aimed at those who were a danger to the security of the State or maintenance of public order. Later the law was broadened to strike at anti-social activities and economic offences also. Recently there was a general feeling against the preventive detention law so far as it could be used against political offenders. Not only the Maintenance of Internal Security Act, 1971 (MISA) was repealed, but a greatly liberalised version of it proposed by a Bill to be inserted into the Criminal Procedure Code was also withdrawn by the Government in Parliament. Steps had already been taken to separate preventive detention legislation aimed against social and economic crimes which culminated in the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). During the debates on the Constitution (Forty-fifth Amendment) Bill, 1978 in the last session of the Parliament, which has just come to an end, all the parties agreed that the provisions enabling enactment of preventive detention law in the Constitution should be continued and the Government defended their continuance only on, the ground that preventive detention was necessary to deal with anti-social and economic offences. The consensus must thus be taken to be in favour of continuing the COFEPOSA, but not the MISA, that is to say, a law of preventive detention should be used only against anti-social activities and economic offences' but not against political offenders, even though some hot-heads and revolutionaries among them may create law and order problems.

(2.) The Constitution of India stands alone in enabling the enactment of preventive detention laws. With the increasing awareness of the importance of personal liberty and the possibility of preventive detention being abused to put down political dissent, a consensus of public opinion has developed demanding abolition of such preventive detention laws as could be used against political opponents. The courts from the very beginning frowned upon preventive detention laws primairly aimed against political offenders and evolved special rules of interpretation of the preventive detention laws and the relevant provisions of the Constitution to narrow down the ambit of the preventive detention and to broaden the scope of personal liberty. Though this interpretation was intended to benefit the political offenders in preventive detention, it had the unintended effect of giving the same benefit to economic offenders also when the same law dealt with both. Differentiation between the two could not be made so long as the same law dealt with both of them. THE QUESTION :

(3.) For the first time now preventive detention for political offenders is abolished and a separate law is enacted to continue the same only against one section of the economic offenders covered by section 3 of the COFEPOSA. Further section 5A was inserted in the COFEPOSA by the amending Act of 1975 expressly changing the rule of interpretation which had been evolved by the Supreme Court primarily in construing preventive detention laws framed against political offenders (and at times economic offenders because they were then dealt with by the same law). A question of first impression, arises. Or it is a question of interplay between this case and the class of cases projected from it. It is this. Whether a new approach in the construction not only of COFEPOSA, but also of clause (5) of Article 22 would be warranted because of these changed circumstances ? Such a new approach would also be appropriate because of the basic differences in the nature of economic and social offences, on the one hand, and other officer (including political ones), on the other. These differences are summed up by the Law Commission in their Forty-seventh Report (p. 2 para 1.4) as follows : "By now, the concept of anti-social acts and economic offences has become familiar to those acquainted with the progress of the criminal law and its relationship to the achievement of social objectives. Still, it may not bf out of place to draw attention to some of the salient features of these. offences. Briefly, these may be summarised : (1) Motive of the criminal is avarice or rapaciousness (not lust or hate). (2) Backgrouund of the crime is non-emotional unlike murder, rape, defamation, etc.). There is no emotional reaction as between the victim and the offender. (3) The victim is usually the State or a section of the public, particularly the consuming public (i.e. that portion of the which consumes goods of services, buys shares or securities or other intangibles). Even where there is an individual victim, the more important element of the offence is harm to society. (4) Mode of operation of the offender is fraud, not force, (5) Usually, the act is deliberate and wilful. (6) Interest protected is two-fold (a) Social interest in the preservation of (i) the property or wealth or health of its individual members, and national resources, and (ii) the general economic system as a whole from (i) exploitation, or (ii) waste by individual or groups. (b) Social interest in the augmentation of the wealth of the country by enforcing the laws relating to the taxes and duties, foreign exci'iange, foreigncommerce, industries and the like." PREVENTIVE DETENTION AND THE RULE OF LAW