Preventive arrest is a legal measure that allows law enforcement to detain an individual before they commit a crime, if there's reasonable belief they pose a threat to public peace, order, or national security or may commit any other cognizable offence. It's typically used to maintain public safety, prevent riots, protect the state, or thwart serious crimes.

For example, if intelligence agencies have information about a group planning a riot, police might make preventive arrests to stop the violence. Similarly, during elections, supporters who threaten to disrupt voting may be temporarily detained to safeguard the democratic process. Suspected terrorists with evidence suggesting imminent violent acts can also be arrested preventively.

The old Code of Criminal Procedure (CrPC), 1973, granted police the authority under Section 151 to arrest someone if their actions suggested they might commit a crime or disturb public order. This permitted police to detain the individual briefly without needing a warrant. The new Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, now addresses this issue in Section 170.

Laws Related to Preventive Detention:

Preventive detention involves holding someone without trial or conviction, not to punish past offences, but to prevent future ones.

Key laws enabling preventive detention are as follows:

1. Maintenance of Internal Security Act, 1971 (MISA) – since repealed
2. Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA)
3. Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA) – since repealed
4. Prevention of Terrorism Act, 2002 (POTA) – since repealed
5. Unlawful Activities (Prevention) Act, 1967 (UAPA) (Amended 2008)
6. Prevention of Money Laundering Act, 2002 (PMLA)
7. Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 170

These laws are generally enacted for national security, counter-terrorism, preventing cognizable offence, and maintaining law and order. Currently, COFEPOSA, UAPA, PMLA, and BNSS are active, while MISA, TADA, and POTA have been repealed.

Article 22 of the Indian Constitution provides safeguards regarding arrest and detention, divided into two parts.

The first part (Article 22(1)) pertains to ordinary arrests, requiring the arrested person to be informed of the grounds for arrest and produced before a court within 24 hours.
The second part (Article 22(2)) addresses preventive detention, allowing detention without a court ruling for a specified period of 24 hours. However, constitutional rules exist to prevent its misuse.

Section 170 of the BNS- Police Preventative Powers in Combating Criminal Organizations:

Section 170 of the BNNS (Bharatiya Nagarik Suraksha Sanhita, 2023) equips the police with preventative powers crucial for dismantling and disrupting criminal organizations before they can act. This section empowers law enforcement to proactively address potential threats to public safety and order. Specifically, if the police receive credible information or intelligence suggesting that a group or organization is planning to engage in unlawful activities such as drug trafficking, extortion, or other serious offences that pose a grave risk to the community, they are authorized to take pre-emptive action.

This includes the authority to apprehend and detain suspected individuals who are believed to be involved in the planning or execution of these criminal activities, even before the actual crime occurs. This pre-emptive measure allows the police to thwart criminal plans, prevent the commission of offences, and safeguard the well-being of citizens.

By utilizing this provision, the police can strategically weaken criminal networks at their nascent stages, hindering their ability to operate effectively. This proactive approach significantly contributes to the reduction of crime rates within society and the maintenance of peace and stability. Section 170 of the BNS serves as a deterrent, sending a clear message to potential offenders that law enforcement is vigilant and prepared to take swift action against anyone planning illegal activities. The knowledge that their plans could be uncovered and disrupted by the authorities discourages individuals from engaging in criminal behaviour.

It is vital to remember that the application of preventative detention under Section 170 of the BNNS is subject to specific safeguards and limitations designed to prevent abuse of power by law enforcement agencies. The decision to make a preventative arrest must be based on reasonable grounds, supported by credible evidence or reliable information. Hearsay or unsubstantiated rumours are not sufficient justification for such an arrest.
Furthermore, any individual apprehended under this section is entitled to certain fundamental rights and protections under the law.

These rights include the right to be informed of the reasons for their arrest, the right to legal representation, and the right to be produced before a magistrate within 24 hours of their detention. The detaining authorities must also ensure that the individual's rights are respected during their period of detention.

Thus, Section 170 of the BNS grants law enforcement the power to take preventative measures against individuals who pose a perceived danger to public order or safety. While this authority is essential for maintaining law and order, it must be exercised judiciously and in accordance with the principles of justice and human rights. By strategically employing preventative arrests, the police can effectively deter crime, protect potential victims, and uphold the rule of law within society. This power serves as a valuable tool for proactively addressing potential threats and ensuring the safety and security of the community, so long as it is used responsibly and ethically.

Misuse of Section 170 BNSS:

• While the constitution guarantees the right to peaceful assembly, Section 170 of the BNSS is sometimes misused as a tool to suppress dissent.
• In a democratic society, citizens have the right to express their opinions through peaceful protests and demonstrations. However, authorities sometimes invoke this section to pre-emptively arrest individuals participating in peaceful gatherings, citing concerns about potential disruption of public order.
• For example, there have been allegations of law enforcement agencies indiscriminately detaining protestors under Section 170 BNSS during political rallies or protests against government policies, often without sufficient evidence of impending violence or unlawful activity. Such actions not only violate the constitutional rights to freedom of expression and assembly but also undermine the democratic principles of transparency and accountability.
• Section 170 BNSS is also sometimes exploited as a means of settling personal disputes or enacting revenge. Individuals may attempt to use law enforcement to harass or retaliate against opponents.
• In cases such as property disputes, family conflicts, or disagreements with neighbours, false accusations may be made to ensure the pre-emptive arrest of the opposing party, resulting in the unjust detention of innocent individuals and the infringement of their liberty.
• Furthermore, there have been instances where law enforcement agencies have misused Section 170 of the BNSS, disproportionately targeting impoverished, marginalized, or members of specific religious and social groups. This discriminatory application based on ethnicity, religion, or caste has led to the wrongful arrest and detention of many innocent individuals. Consequently, tensions within society have escalated, and injustice has become more pervasive.
• It's crucial to recognize that the misuse of Section 170 BNSS is symptomatic of deeper systemic issues, including a lack of accountability, inadequate police training, and the absence of consequences for misconduct. Preventive arrests, devoid of proper judicial oversight or due process, can inflict severe physical and psychological harm on individuals, causing lasting damage to their lives and livelihoods.
• Moreover, the misapplication of Section 170 BNSS not only violates individual liberties but also erodes the credibility of the criminal justice system. When law enforcement abuses the law to suppress dissent or settle personal scores, public trust in the legal framework diminishes. This undermines justice, weakens the rule of law, and allows perpetrators to evade accountability.
• To prevent the misuse of Section 170 BNSS, comprehensive reforms are essential to make the police and law enforcement agencies more accountable, transparent, and respectful of human rights. Police training programs should prioritize constitutional rights and emphasize the need for careful consideration before making any arrest.
• To prevent the misuse of Section 170 BNSS, it is imperative to establish strong legal safeguards and comprehensive oversight mechanisms. Furthermore, judicial intervention plays a crucial role, ensuring that arrests under this section are only authorized when there is a demonstrable and imminent threat to public safety or when supported by substantial evidence indicating the commission of a serious offence.

The Role of Civil Society in Addressing Misuse of Laws:

Human rights activists, civil organizations, and the media play a crucial role in identifying and reporting instances of legal misuse. They demand accountability and advocate for change, which helps protect people's rights. This, in turn, can hold law enforcement agencies responsible for their actions.

Concerns Regarding Application of Laws:

Officials sometimes enforce the law for trivial reasons. For example, a driver may be detained for minor documentation errors in a vehicle, even if they possess valid paperwork. Due to vague language in some parts of state laws, it is often unclear why a person is detained. As a result, not only criminals but also innocent individuals may face punishment.

Critics argue that these outdated laws are no longer necessary. In the past, they were used against freedom fighters. Moreover, these laws allow for the detention of individuals without clear justification, which goes against fundamental human rights.

Court Decisions:
Here is a summary of court rulings addressing legal issues and police powers:

• Supreme Court Observation on Preventative Detention: Justices Krishna Murari and V. Ramasubramanian, while overturning a preventative detention order, stated that such laws are a legacy of the British era and are highly susceptible to abuse. The court emphasized that the power granted to the government should be examined with extreme caution and used only in exceptional circumstances – as a last resort when no other options are available.
   
• Ahmed Noor Mohamad Bhatti v. State of Gujarat: The Supreme Court upheld the constitutional validity of Section 151 of the Criminal Procedure Code (CrPC) (Now Section 170 of BNSS). The court clarified that abuse of this power by a police officer does not render the section irrational or unconstitutional. In other words, the law itself cannot be invalidated simply because of potential misuse by the police.
• Mariappan v. The District Collector and Others: This case established that the purpose of detention orders is not to punish offenders but to prevent the commission of specific offences. The primary aim of detention is to ensure public safety by preventing crime.
   
• Medha Patkar v. State of M.P. and Anr. (2007): In this case, protesters were advocating for better resettlement provisions related to a dam project. Despite lacking any criminal intent, the police arrested and detained them under Section 151 of the Criminal Procedure Code, 1973 (Now Section 170 of BNSS). The court deemed this a violation of Article 21 of the Constitution, which guarantees the right to life and personal liberty, and ordered compensation for the protesters.
   
• Rajender Singh Pathania & Ors. v. State of NCT of Delhi & Ors. (2011): The Supreme Court clarified that police must adhere to specific conditions before making an arrest under Section 151 of the Criminal Procedure Code (Now Section 170 of BNSS). The court stated that arrests are justified only when the police have credible information that an individual is planning to commit a cognizable offence (serious crime). Failure to meet these conditions could result in the police being held liable for violating Article 21 of the Constitution.

Conclusion:
While Section 170 of the BNSS serves a necessary purpose in preventing crime and maintaining peace, its misuse poses a significant threat to individual liberty, democracy, and the rule of law. To mitigate this risk, greater transparency and accountability within the police and administration are crucial, along with a strong emphasis on protecting human rights.

Simultaneously, public awareness needs to be raised to ensure a clear understanding of the proper application of the law. Improper use of this law can infringe upon fundamental rights and undermine democratic principles. Therefore, striking a balance between effective law enforcement and safeguarding human rights is essential to ensure the law is applied correctly and individual freedoms are protected.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: imranwahab216@gmail.com, Ph no: 9836576565