The laws of West Bengal in India that provide for one year of preventive detention and auctioning of offenders’ property are analyzed constitutionally
Two important Bills were passed by the Legislative Assembly of West Bengal that introduce tougher laws to fight organised crime and serious criminal activities in the state. One of the most prominent features is that of preventive detention which can be imposed for up to one year and the other is the attachment and auction of the assets of the offenders in certain specified circumstances. The law has sparked considerable controversy in the legal and constitutional arena, with some commentators arguing that it is a step too far and infringes on the right to fundamental rights.
The bill aims to enhance the State’s ability to address organised crime, repeat offenders and those activities deemed a risk to public order. The preventive detention provision allows the detention of a person without trial for a maximum period of one year, with proper procedures provided by law. Further, the law gives the powers to designate, attach and finally auction-off houses suspected to be acquired by criminals and/or applied in the commission of crimes.
Preventive detention is a unique area of constitutional law in India. preventive arrest and detention is different from the ordinary criminal arrest or detention which is the result of the arrest of a person for an alleged offence and which would lead to a trial, as preventive arrest and detention is used to prevent the commission of acts prejudicial to the public order or national security. The Constitution itself acknowledges the preventive detention under Article 22 but at the same time lays down safeguards against the misuse of this extraordinary power.
Under Article 22(4) no law permitting preventive detention shall allow for release after three months unless a report is made by an Advisory Board to the law authorising the detention and it is found that there is sufficient cause for the detention to be continued. Articles 22(5) and 22(6) also stipulate that the detainee be communicated with concerning the reason for detention, and be given the earliest opportunity of submitting a representation against the detention order (with limited exceptions in the public interest).
There are already various existing legislation in India to prevent detention such as the National Security Act, 1980, Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), and the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. The Supreme Court has always emphasized that preventive detention laws are valid but must be read narrowly as they directly impinge on the right to personal liberty guaranteed by Article 21.
The second, major provision of the West Bengal law is the attachment and auction of the offenders’ property. There are similar provisions in other laws like the Prevention of Money Laundering Act, 2002 (PMLA), Narcotic Drugs and Psychotropic Substances Act, 1985 and the State laws pertaining to organised crime. Confiscation of property is aimed at two goals: to deny to criminals the economic fruits of their crime and to provide adequate recovery for victims of crime, or for the State if it is a victim.
No property can be taken away from a person without the authority of law – this is the constitutional guarantee, but property attachment has to comply with the constitutional requirement. Past judicial decisions have consistently stated that confiscation may not be arbitrary and must be based on a fair process, on sufficient evidence and on a reasonable opportunity to challenge.
The bill is a reflection of the State’s resolve to deal with the issue of organised crime but it also contains important constitutional issues. The use of preventive detention has long been criticized for the ability to keep people in prison without a conviction. Civil liberty groups have said that these powers can easily be used to target political opponents, activists or even people who have been arrested without proof of guilt. The Supreme Court has hence often warned that preventive detention should not be an alternative to a regular criminal trial in the absence of adequate evidence.
Likewise, the concept of auctioning property could be a hot topic if it is not administered in a strict judicial manner. No assets should automatically be confiscated in the absence of clear statutory conditions and when procedural safeguards have not been maintained, unless there are allegations of criminal involvement. Attachment of property too early can also have a negative impact on innocent family members who have legitimate interests in the property.
But the impact of the new law will rely more on the fairness with which it is applied than on the severity of its provisions. The prevention is to be accompanied at all times by suitable, clear procedures, effective review mechanisms and judicial oversight to minimise the possibility of abuse.
In the end, the West Bengal bill is a major step towards a situation where the State has more powers to control public order and fight organised crime. The effectiveness of the measures to enhance law enforcement while protecting constitutional freedoms of expression and religion will rely on the degree to which the protections in Articles 21, 22, and 300A of the Constitution are upheld in practice. It is expected that the law will be challenged in court, especially in regards to proportionality, procedural fairness, and a balance between collective security and individual rights and liberties.
