Chapter

The Legal Framework of Preventive Detention and Anti-Terror Laws

Shylashri Shankar

in Scaling Justice

Published in print February 2009 | ISBN: 9780195693201
Published online October 2012 | e-ISBN: 9780199081998 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780195693201.003.0003
The Legal Framework of Preventive Detention and Anti-Terror Laws

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This chapter evaluates the legal framework of preventive detention and anti-terror cases. It describes the evolution and judicial interpretations of PDA 1950, TADA 1985, and POTA 2002. It is noted that the independent Indian state was an embattled entity and the provisions were created for the state agencies to deal with the situation. These extraordinary provisions became normalized over a period of time. The rights were seen as ‘gifts’ of a benevolent state. Textual analysis of Supreme Court rulings shows that the judges nevertheless have found ways to tinker with the procedures and expand some of the detainee's rights. The Supreme Court justices ‘affirmed the duty of every court to see that a law depriving a person of his liberty without the safeguards available even to a person charged with crime was strictly complied with’. The legal approach alone cannot explicate judicial behavior.

Keywords: preventive detention; anti-terror; PDA 1950; TADA 1985; POTA 2002; Indian state; Supreme Court; Constitution

Chapter.  13460 words. 

Subjects: Human Rights and Immigration

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