Introduction
Imagine being picked up by the police on your way to a protest. You have not been tried. You have not been convicted. Yet you are detained.
Is that legal? Sometimes, yes. The law calls it preventive detention. It is a powerful tool, and a controversial one. Let us understand how it works.
What Sparked the Debate?
Recently, Delhi Police detained protesters. They were trying to reach Jantar Mantar. The protest demanded the resignation of Chief Election Commissioner Gyanesh Kumar and a rollback of the SIR.
The detained included many kinds of people:
- Opposition leaders and former Chief Ministers
- Lawyers and journalists
- Students and activists
- Reportedly, people who were not even part of the protest
Some were detained at the homes of their representatives. Others were stopped on the way. On October 11, the Supreme Court stepped in. It directed the Centre and the Delhi Police to allow free movement of people, “subject to law and order.”
This brought an old question back. What exactly is preventive detention?
What Is Preventive Detention?
It means holding a person without a trial or conviction by a court.
The goal is not to punish someone for a past crime. The goal is to stop a future one. Authorities can use this power on three grounds:
- Public order
- Security of the State
- Law and order
Think of it as a “better safe than sorry” rule. The problem is that it can also hurt personal freedom. That is why the law sets limits.
The National Security Act
The National Security Act (NSA), 1980 is a key law here. It allows preventive detention when the government is satisfied of a threat. This includes activities that harm:
- The defence of India
- India’s relations with foreign powers
- The security of the State
Preventive Detention vs Prohibitory Orders
People often mix these two up. They are different tools.
What is a Prohibitory Order?
Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) is the key provision. It largely keeps the spirit of the old Section 144 of the Criminal Procedure Code, 1973.
A District Magistrate, a Sub-Divisional Magistrate or another specially empowered Executive Magistrate can issue such orders. They do so when there is a need for quick action.
The aim is to prevent things like:
- Obstruction or annoyance to people
- Injury to anyone lawfully employed
- Danger to human life, health or safety
- A disturbance of public peace, a riot or an affray
How they differ
A prohibitory order controls what a crowd can do in an area. Preventive detention takes a specific person into custody.
Prohibitory orders are meant to be used when the situation is urgent. The Magistrate must be satisfied that quick action is needed. The order must state the material facts it relies on. This keeps the process open and challengeable. These orders can also be reviewed by the High Courts.
How did Preventive Detention evolve in India?
The story starts in the colonial era.
The British Period
Laws such as the Rowlatt Act of 1919 and the Defence of India Act of 1939 allowed detention without trial. They were often used against freedom fighters.
After Independence
India kept the idea, even after fighting for freedom. The timeline looks like this:
- 1950: The Preventive Detention Act came in. It remained in force until 1969.
- 1971: The Maintenance of Internal Security Act (MISA) expanded detention powers. It was widely used against political opponents during the Emergency (1975 to 1977). It was repealed in 1978.
- 1974: The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) allowed preventive detention for specific purposes.
- 1980: The National Security Act created a continuing legal framework.
- 1967 onwards: Amendments to the Unlawful Activities (Prevention) Act (UAPA) widened the state’s powers on terrorism and unlawful activities.
What does the Constitution say?
Article 22 is the main safeguard. It protects people from arbitrary detention.
The Key Protections
- Article 22(4): A person generally cannot be detained for more than three months. An Advisory Board must review the case, subject to constitutional requirements and exceptions.
- Article 22(5): The authorities must tell the detainee the grounds of detention as soon as possible. The person must also get a chance to make a representation against the order.
The grounds must be explained in a way that lets the detainee actually challenge them. A vague notice does not meet this test.
The “Golden Triangle”
The Supreme Court has spoken of a “golden triangle” of rights in the Ameena Begum v. State of Telangana (2023) case. It is formed by Articles 14, 19 and 21.
- Article 14: Equality before the law
- Article 19: Freedoms such as speech, expression, assembly and movement
- Article 21: The right to life and personal liberty
The court said these safeguards must be diligently enforced to keep preventive detention in check.
What have the Courts said?
Courts have played a big role in setting limits. Here are the key cases.
Babulal Parate v. State of Maharashtra (1961)
- The Supreme Court upheld Section 144 of the old CrPC. But it said the power was not “unlimited or untrammelled.” It could only be used in emergencies and within legal limits.
Madhu Limaye v. Sub-Divisional Magistrate (1971)
- The court again stressed that such powers must be used with care. They should be proportionate. They should be used only when a threat to public order is imminent. They should not be a routine measure.
Maneka Gandhi v. Union of India (1978)
- This case established that procedures restricting personal liberty must be just, fair and reasonable.
Khudiram Das v. State of West Bengal (1975)
- The court said the grounds of detention must be told to the detainee. This acts as a check on arbitrary power. The detaining authority cannot simply whisk a person away at its own will. The detainee must also be able to use judicial review and make a representation.
Ramlila Maidan Case (2012)
- The Supreme Court criticised the government for imposing Section 144 against a sleeping crowd at Ramlila Maidan. It said such a provision can be used only in grave circumstances. The emergency must be sudden and the consequences serious enough.
Mazdoor Kisan Shakti Sangathan v. Union of India (2018)
- The court set aside a National Green Tribunal order that banned all protests along Jantar Mantar Road. It called a complete ban excessive. It told the authorities to create a system to regulate protests and grant permissions instead.
Shaik Naznen v. State of Telangana (2022)
- The court observed that preventive detention powers are exceptional. They strike hard at a person’s freedom. So they cannot be used in a routine manner.
What did the Supreme Court order recently ?
The court held an “extraordinary, exceptional” Sunday hearing. Here is what it directed.
- The Centre and Delhi Police must stop illegal detentions.
- Free and smooth movement of people and traffic must be allowed, subject to law and public order.
- Delhi Metro and railway services must run normally.
- Internet services must remain available in accordance with the law.
- Barricades must be reviewed based on law and order and traffic needs.
- Peaceful assemblies must be allowed, except in areas where Section 163 BNSS orders are in force.
- Any notice board announcing Section 163 restrictions near the Supreme Court must be removed, if still there.
- Lawyers, journalists and other professionals must not be stopped from doing their duties.
The court also issued notice in contempt proceedings. These allege a violation of its October 9 order. The authorities must submit a compliance report by October 13. Habeas corpus petitions on the mass detentions will be heard with the main cases on the same day.
The court stressed that the State must explain the circumstances, the manner and the legal basis for the alleged detentions. It linked this to its duty under Article 32 to protect fundamental rights.
State of the matter
The core idea is simple. The State can act early to prevent harm. But it cannot act without limits.
Here is the balance the courts keep pointing to:
- Safety is important, but so is freedom.
- Authorities need power, but that power must be used with reasons.
- A detained person must know why they are held and must be able to respond.
- Courts stand ready to check whether the law was followed.
The Gist
- Preventive detention lets authorities hold a person to prevent a future threat.
- It is different from prohibitory orders, which restrict activity in an area.
- Article 22 gives detained persons important safeguards.
- Laws like the NSA set out the grounds and procedures.
- Courts can review these actions and have repeatedly said they must be used with care.
Final thoughts
Preventive detention sits at a tricky crossroads. On one side is public safety. On the other is individual liberty. India’s history with this power, from colonial rule to the Emergency, shows why watchfulness matters.
The latest Supreme Court orders send a clear message. Even in tense times, the law must be followed. Freedom is not something to be switched off on a whim.
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Steve Ovett, the famous British middle-distance athlete, won the 800-metres gold medal at the Moscow Olympics of 1980. Just a few days later, he was about to win a 5,000-metres race at London’s Crystal Palace. Known for his burst of acceleration on the home stretch, he had supreme confidence in his ability to out-sprint rivals. With the final 100 metres remaining,
[wptelegram-join-channel link=”https://t.me/s/upsctree” text=”Join @upsctree on Telegram”]Ovett waved to the crowd and raised a hand in triumph. But he had celebrated a bit too early. At the finishing line, Ireland’s John Treacy edged past Ovett. For those few moments, Ovett had lost his sense of reality and ignored the possibility of a negative event.
This analogy works well for the India story and our policy failures , including during the ongoing covid pandemic. While we have never been as well prepared or had significant successes in terms of growth stability as Ovett did in his illustrious running career, we tend to celebrate too early. Indeed, we have done so many times before.
It is as if we’re convinced that India is destined for greater heights, come what may, and so we never run through the finish line. Do we and our policymakers suffer from a collective optimism bias, which, as the Nobel Prize winner Daniel Kahneman once wrote, “may well be the most significant of the cognitive biases”? The optimism bias arises from mistaken beliefs which form expectations that are better than the reality. It makes us underestimate chances of a negative outcome and ignore warnings repeatedly.
The Indian economy had a dream run for five years from 2003-04 to 2007-08, with an average annual growth rate of around 9%. Many believed that India was on its way to clocking consistent double-digit growth and comparisons with China were rife. It was conveniently overlooked that this output expansion had come mainly came from a few sectors: automobiles, telecom and business services.
Indians were made to believe that we could sprint without high-quality education, healthcare, infrastructure or banking sectors, which form the backbone of any stable economy. The plan was to build them as we went along, but then in the euphoria of short-term success, it got lost.
India’s exports of goods grew from $20 billion in 1990-91 to over $310 billion in 2019-20. Looking at these absolute figures it would seem as if India has arrived on the world stage. However, India’s share of global trade has moved up only marginally. Even now, the country accounts for less than 2% of the world’s goods exports.
More importantly, hidden behind this performance was the role played by one sector that should have never made it to India’s list of exports—refined petroleum. The share of refined petroleum exports in India’s goods exports increased from 1.4% in 1996-97 to over 18% in 2011-12.
An import-intensive sector with low labour intensity, exports of refined petroleum zoomed because of the then policy regime of a retail price ceiling on petroleum products in the domestic market. While we have done well in the export of services, our share is still less than 4% of world exports.
India seemed to emerge from the 2008 global financial crisis relatively unscathed. But, a temporary demand push had played a role in the revival—the incomes of many households, both rural and urban, had shot up. Fiscal stimulus to the rural economy and implementation of the Sixth Pay Commission scales had led to the salaries of around 20% of organized-sector employees jumping up. We celebrated, but once again, neither did we resolve the crisis brewing elsewhere in India’s banking sector, nor did we improve our capacity for healthcare or quality education.
Employment saw little economy-wide growth in our boom years. Manufacturing jobs, if anything, shrank. But we continued to celebrate. Youth flocked to low-productivity service-sector jobs, such as those in hotels and restaurants, security and other services. The dependence on such jobs on one hand and high-skilled services on the other was bound to make Indian society more unequal.
And then, there is agriculture, an elephant in the room. If and when farm-sector reforms get implemented, celebrations would once again be premature. The vast majority of India’s farmers have small plots of land, and though these farms are at least as productive as larger ones, net absolute incomes from small plots can only be meagre.
A further rise in farm productivity and consequent increase in supply, if not matched by a demand rise, especially with access to export markets, would result in downward pressure on market prices for farm produce and a further decline in the net incomes of small farmers.
We should learn from what John Treacy did right. He didn’t give up, and pushed for the finish line like it was his only chance at winning. Treacy had years of long-distance practice. The same goes for our economy. A long grind is required to build up its base before we can win and celebrate. And Ovett did not blame anyone for his loss. We play the blame game. Everyone else, right from China and the US to ‘greedy corporates’, seems to be responsible for our failures.
We have lowered absolute poverty levels and had technology-based successes like Aadhaar and digital access to public services. But there are no short cuts to good quality and adequate healthcare and education services. We must remain optimistic but stay firmly away from the optimism bias.
In the end, it is not about how we start, but how we finish. The disastrous second wave of covid and our inability to manage it is a ghastly reminder of this fact.
On March 31, the World Economic Forum (WEF) released its annual Gender Gap Report 2021. The Global Gender Gap report is an annual report released by the WEF. The gender gap is the difference between women and men as reflected in social, political, intellectual, cultural, or economic attainments or attitudes. The gap between men and women across health, education, politics, and economics widened for the first time since records began in 2006.
[wptelegram-join-channel link=”https://t.me/s/upsctree” text=”Join @upsctree on Telegram”]No need to remember all the data, only pick out few important ones to use in your answers.
The Global gender gap index aims to measure this gap in four key areas : health, education, economics, and politics. It surveys economies to measure gender disparity by collating and analyzing data that fall under four indices : economic participation and opportunity, educational attainment, health and survival, and political empowerment.
The 2021 Global Gender Gap Index benchmarks 156 countries on their progress towards gender parity. The index aims to serve as a compass to track progress on relative gaps between women and men in health, education, economy, and politics.
Although no country has achieved full gender parity, the top two countries (Iceland and Finland) have closed at least 85% of their gap, and the remaining seven countries (Lithuania, Namibia, New Zealand, Norway, Sweden, Rwanda, and Ireland) have closed at least 80% of their gap. Geographically, the global top 10 continues to be dominated by Nordic countries, with —Iceland, Norway, Finland, and Sweden—in the top five.
The top 10 is completed by one country from Asia Pacific (New Zealand 4th), two Sub-Saharan countries (Namibia, 6th and Rwanda, 7th, one country from Eastern Europe (the new entrant to the top 10, Lithuania, 8th), and another two Western European countries (Ireland, 9th, and Switzerland, 10th, another country in the top-10 for the first time).There is a relatively equitable distribution of available income, resources, and opportunities for men and women in these countries. The tremendous gender gaps are identified primarily in the Middle East, Africa, and South Asia.
Here, we can discuss the overall global gender gap scores across the index’s four main components : Economic Participation and Opportunity, Educational Attainment, Health and Survival, and Political Empowerment.
The indicators of the four main components are
(1) Economic Participation and Opportunity:
o Labour force participation rate,
o wage equality for similar work,
o estimated earned income,
o Legislators, senior officials, and managers,
o Professional and technical workers.
(2) Educational Attainment:
o Literacy rate (%)
o Enrollment in primary education (%)
o Enrollment in secondary education (%)
o Enrollment in tertiary education (%).
(3) Health and Survival:
o Sex ratio at birth (%)
o Healthy life expectancy (years).
(4) Political Empowerment:
o Women in Parliament (%)
o Women in Ministerial positions (%)
o Years with a female head of State (last 50 years)
o The share of tenure years.
The objective is to shed light on which factors are driving the overall average decline in the global gender gap score. The analysis results show that this year’s decline is mainly caused by a reversal in performance on the Political Empowerment gap.
Global Trends and Outcomes:
– Globally, this year, i.e., 2021, the average distance completed to gender parity gap is 68% (This means that the remaining gender gap to close stands at 32%) a step back compared to 2020 (-0.6 percentage points). These figures are mainly driven by a decline in the performance of large countries. On its current trajectory, it will now take 135.6 years to close the gender gap worldwide.
– The gender gap in Political Empowerment remains the largest of the four gaps tracked, with only 22% closed to date, having further widened since the 2020 edition of the report by 2.4 percentage points. Across the 156 countries covered by the index, women represent only 26.1% of some 35,500 Parliament seats and 22.6% of over 3,400 Ministers worldwide. In 81 countries, there has never been a woman head of State as of January 15, 2021. At the current rate of progress, the World Economic Forum estimates that it will take 145.5 years to attain gender parity in politics.
– The gender gap in Economic Participation and Opportunity remains the second-largest of the four key gaps tracked by the index. According to this year’s index results, 58% of this gap has been closed so far. The gap has seen marginal improvement since the 2020 edition of the report, and as a result, we estimate that it will take another 267.6 years to close.
– Gender gaps in Educational Attainment and Health and Survival are nearly closed. In Educational Attainment, 95% of this gender gap has been closed globally, with 37 countries already attaining gender parity. However, the ‘last mile’ of progress is proceeding slowly. The index estimates that it will take another 14.2 years to close this gap on its current trajectory completely.
In Health and Survival, 96% of this gender gap has been closed, registering a marginal decline since last year (not due to COVID-19), and the time to close this gap remains undefined. For both education and health, while progress is higher than economy and politics in the global data, there are important future implications of disruptions due to the pandemic and continued variations in quality across income, geography, race, and ethnicity.
India-Specific Findings:
India had slipped 28 spots to rank 140 out of the 156 countries covered. The pandemic causing a disproportionate impact on women jeopardizes rolling back the little progress made in the last decades-forcing more women to drop off the workforce and leaving them vulnerable to domestic violence.
India’s poor performance on the Global Gender Gap report card hints at a serious wake-up call and learning lessons from the Nordic region for the Government and policy makers.
Within the 156 countries covered, women hold only 26 percent of Parliamentary seats and 22 percent of Ministerial positions. India, in some ways, reflects this widening gap, where the number of Ministers declined from 23.1 percent in 2019 to 9.1 percent in 2021. The number of women in Parliament stands low at 14.4 percent. In India, the gender gap has widened to 62.5 %, down from 66.8% the previous year.
It is mainly due to women’s inadequate representation in politics, technical and leadership roles, a decrease in women’s labor force participation rate, poor healthcare, lagging female to male literacy ratio, and income inequality.
The gap is the widest on the political empowerment dimension, with economic participation and opportunity being next in line. However, the gap on educational attainment and health and survival has been practically bridged.
India is the third-worst performer among South Asian countries, with Pakistan and Afghanistan trailing and Bangladesh being at the top. The report states that the country fared the worst in political empowerment, regressing from 23.9% to 9.1%.
Its ranking on the health and survival dimension is among the five worst performers. The economic participation and opportunity gap saw a decline of 3% compared to 2020, while India’s educational attainment front is in the 114th position.
India has deteriorated to 51st place from 18th place in 2020 on political empowerment. Still, it has slipped to 155th position from 150th position in 2020 on health and survival, 151st place in economic participation and opportunity from 149th place, and 114th place for educational attainment from 112th.
In 2020 reports, among the 153 countries studied, India is the only country where the economic gender gap of 64.6% is larger than the political gender gap of 58.9%. In 2021 report, among the 156 countries, the economic gender gap of India is 67.4%, 3.8% gender gap in education, 6.3% gap in health and survival, and 72.4% gender gap in political empowerment. In health and survival, the gender gap of the sex ratio at birth is above 9.1%, and healthy life expectancy is almost the same.
Discrimination against women has also been reflected in Health and Survival subindex statistics. With 93.7% of this gap closed to date, India ranks among the bottom five countries in this subindex. The wide sex ratio at birth gaps is due to the high incidence of gender-based sex-selective practices. Besides, more than one in four women has faced intimate violence in her lifetime.The gender gap in the literacy rate is above 20.1%.
Yet, gender gaps persist in literacy : one-third of women are illiterate (34.2%) than 17.6% of men. In political empowerment, globally, women in Parliament is at 128th position and gender gap of 83.2%, and 90% gap in a Ministerial position. The gap in wages equality for similar work is above 51.8%. On health and survival, four large countries Pakistan, India, Vietnam, and China, fare poorly, with millions of women there not getting the same access to health as men.
The pandemic has only slowed down in its tracks the progress India was making towards achieving gender parity. The country urgently needs to focus on “health and survival,” which points towards a skewed sex ratio because of the high incidence of gender-based sex-selective practices and women’s economic participation. Women’s labour force participation rate and the share of women in technical roles declined in 2020, reducing the estimated earned income of women, one-fifth of men.
Learning from the Nordic region, noteworthy participation of women in politics, institutions, and public life is the catalyst for transformational change. Women need to be equal participants in the labour force to pioneer the societal changes the world needs in this integral period of transition.
Every effort must be directed towards achieving gender parallelism by facilitating women in leadership and decision-making positions. Social protection programmes should be gender-responsive and account for the differential needs of women and girls. Research and scientific literature also provide unequivocal evidence that countries led by women are dealing with the pandemic more effectively than many others.
Gendered inequality, thereby, is a global concern. India should focus on targeted policies and earmarked public and private investments in care and equalized access. Women are not ready to wait for another century for equality. It’s time India accelerates its efforts and fight for an inclusive, equal, global recovery.
India will not fully develop unless both women and men are equally supported to reach their full potential. There are risks, violations, and vulnerabilities women face just because they are women. Most of these risks are directly linked to women’s economic, political, social, and cultural disadvantages in their daily lives. It becomes acute during crises and disasters.
With the prevalence of gender discrimination, and social norms and practices, women become exposed to the possibility of child marriage, teenage pregnancy, child domestic work, poor education and health, sexual abuse, exploitation, and violence. Many of these manifestations will not change unless women are valued more.
[wptelegram-join-channel link=”https://t.me/s/upsctree” text=”Join @upsctree on Telegram”]2021 WEF Global Gender Gap report, which confirmed its 2016 finding of a decline in worldwide progress towards gender parity.
Over 2.8 billion women are legally restricted from having the same choice of jobs as men. As many as 104 countries still have laws preventing women from working in specific jobs, 59 countries have no laws on sexual harassment in the workplace, and it is astonishing that a handful of countries still allow husbands to legally stop their wives from working.
Globally, women’s participation in the labour force is estimated at 63% (as against 94% of men who participate), but India’s is at a dismal 25% or so currently. Most women are in informal and vulnerable employment—domestic help, agriculture, etc—and are always paid less than men.
Recent reports from Assam suggest that women workers in plantations are paid much less than men and never promoted to supervisory roles. The gender wage gap is about 24% globally, and women have lost far more jobs than men during lockdowns.
The problem of gender disparity is compounded by hurdles put up by governments, society and businesses: unequal access to social security schemes, banking services, education, digital services and so on, even as a glass ceiling has kept leadership roles out of women’s reach.
Yes, many governments and businesses had been working on parity before the pandemic struck. But the global gender gap, defined by differences reflected in the social, political, intellectual, cultural and economic attainments or attitudes of men and women, will not narrow in the near future without all major stakeholders working together on a clear agenda—that of economic growth by inclusion.
The WEF report estimates 135 years to close the gap at our current rate of progress based on four pillars: educational attainment, health, economic participation and political empowerment.
India has slipped from rank 112 to 140 in a single year, confirming how hard women were hit by the pandemic. Pakistan and Afghanistan are the only two Asian countries that fared worse.
Here are a few things we must do:
One, frame policies for equal-opportunity employment. Use technology and artificial intelligence to eliminate biases of gender, caste, etc, and select candidates at all levels on merit. Numerous surveys indicate that women in general have a better chance of landing jobs if their gender is not known to recruiters.
Two, foster a culture of gender sensitivity. Take a review of current policies and move from gender-neutral to gender-sensitive. Encourage and insist on diversity and inclusion at all levels, and promote more women internally to leadership roles. Demolish silos to let women grab potential opportunities in hitherto male-dominant roles. Work-from-home has taught us how efficiently women can manage flex-timings and productivity.
Three, deploy corporate social responsibility (CSR) funds for the education and skilling of women and girls at the bottom of the pyramid. CSR allocations to toilet building, the PM-Cares fund and firms’ own trusts could be re-channelled for this.
Four, get more women into research and development (R&D) roles. A study of over 4,000 companies found that more women in R&D jobs resulted in radical innovation. It appears women score far higher than men in championing change. If you seek growth from affordable products and services for low-income groups, women often have the best ideas.
Five, break barriers to allow progress. Cultural and structural issues must be fixed. Unconscious biases and discrimination are rampant even in highly-esteemed organizations. Establish fair and transparent human resource policies.
Six, get involved in local communities to engage them. As Michael Porter said, it is not possible for businesses to sustain long-term shareholder value without ensuring the welfare of the communities they exist in. It is in the best interest of enterprises to engage with local communities to understand and work towards lowering cultural and other barriers in society. It will also help connect with potential customers, employees and special interest groups driving the gender-equity agenda and achieve better diversity.