SOAS Research Online

Abstract

The thesis deals with the law relating to preventive detention in Pakistan. It is an extraordinary law which empowers the executive to deprive citizens of their liberty without trial in regular court of law. Legislative powers may, under the constitution, be used in the interest of the state for reasons connected with defence, security, maintenance of public order and internal peace. The chapters on fundamental rights in the Constitutions of 1956 and 1962 place restrictions on these powers. The evolution of fundamental rights from the time of the British Raj are discussed in detail, and after a general discussion of fundamental rights, the thesis deals with the demands made by various political parties for their incorporation in the Indian constitution to be made by Parliament at Westminster. The All Party Report, The Simon Commission Report, The Round Table Conference Report and report of The Joint Parliamentary Committee on Indian Constitutional reform are dealt with in this Chapter I, along with the abrogation of the two constitutions of Pakistan. In Chapter II, the history of preventive detention has been traced from 1775 with Bengal State Prisoners Regulations of 1818 and 1850, the Criminal law Amendment Acts, 1908, 1915, the Sedition Report, 1918, the Rowlatt Act, 1919, and the Defence of India Act, 1939. The necessity for preventive detention is discussed in Chapter III; after a general consideration, such provisions in England and America in time of war are discussed. Chapter IV discusses the nature of preventive detention laws and the constitutional restrictions on them. Chapter V discusses judicial review and the jurisdiction of the High Courts to set aside detention orders when there is any irregularity or the order is made mala fide. Chapter VI deals with the detaining authority, the nature and reasonableness of its satisfaction to pass detention orders. The justification of preventive detention is discussed in Chapter VII, in which the situation in Pakistan is outlined; alternative remedies have been discussed to show how far they are inadequate to meet the needs of the country. The next two chapters deal with the constitutional remedies for loss of personal liberty, in which the writ procedure in England and Pakistan is discussed in detail, as well as Article 2 of Constitution of Pakistan, 1962. In the last Chapter some conclusions have been drawn from the research and some suggestions have been made.