What is Preventive Detention? What are the constitutional provisions related to Preventive Detention? What are the arguments in favor or against Preventive Detention? To answer these questions, read further.
Preventive detention refers to taking into custody an individual who has not committed a crime yet but the authorities believe him to be a threat to law and order.
The power to make preventive detention in India comes from the constitution itself which empowers the parliament to make such laws for ensuring the safety and security of the country.
The parliament has exclusive legislative powers concerning preventive detention.
Types of Arrests
Punitive detention is when someone is detained due to a crime they committed. It happens following the actual commission of the crime, or at the very least following the attempt.
- Punitive detention is governed by various provisions in the Indian Penal Code (IPC) and other specific laws related to offenses.
- The duration of punitive detention is determined by the court judgment and the nature of the offense committed.
- Punitive detention applies to individuals convicted of criminal offenses, ranging from minor offenses to serious crimes such as murder or fraud.
- Punitive detention follows a judicial process that involves a trial, presentation of evidence, legal representation, and a judgment. The court imposes a specific sentence based on the severity of the offense.
- Individuals subjected to punitive detention have the right to appeal against their conviction and sentence. Higher courts may review the case, and legal avenues for appeal are available.
- Individuals undergoing punitive detention are entitled to certain human rights safeguards, including the right to legal representation, a fair trial, and protection against cruel and unusual punishment.
Detention to stop a person from committing additional crimes or from upholding the peace is known as preventive detention.
Constitutional Provisions Related to Preventive Detention
Article 22(3)(b): It allows for preventive detention and puts restrictions on personal liberty to ensure state security and public order.
Article 22(4): States that no law providing for preventive detention shall authorize the detention of a person for a period longer than three months. In case of extended extension, a report by the advisory board is required for sufficient cause.
44th Constitutional Amendment Act: The amendment reduced the period of detention without obtaining the opinion from the advisory board from three to two months, however, this provision has yet to be implemented and thus the original period of three months continues.
Some important judgments
Alijav vs District Magistrate, Dhanbad: In this case, the Supreme Court of India has stated that while the criminal proceedings are related to punishing someone for an offense already done by him. The preventive detention does not relate to an offense but rather is related to the suspicion of threat.
Ankul Chandra Pradhan vs UOI: Here the Supreme Court of India stated that the aim of preventive detention is not to punish but to prevent the person from doing anything detrimental to the security of the state.
Safeguards provided against the misuse of Preventive Detention
Every case of preventive detention must be authorized by the law and not at the will of the executive. It means the executive cannot use this power of preventive detention arbitrarily and it has the backing of the law.
Prevention detention has a fixed time and it cannot be extended beyond a period of three months. It also states that no person can be detained indefinitely.
There is a provision for early representation, the person will be given the earliest opportunity to make a representation against the preventive detention.
Every case of preventive detention must be placed before an advisory board composed of the High Court judges or persons qualified as high court judges, the case of detention must be placed before the advisory board within three months, and continued detention after three months must have the consent of the board.
Grounds for Preventive Detention
Prevention Detention can be made on four grounds which are,
- the security of the state,
- maintenance of the public order,
- maintaining essential services and defense,
- and foreign affairs with the security of India.
Legislation in India on Preventive Detention
National Security Act, 1980: This act provides for administrative detention for a period of up to one year.
COFEPOSA 1974: The act provided for preventive detention to maintain and improve foreign exchange and also to deter illegal trade.
TADA 1985: The fundamental objective of this legislation is to demonstrate that it was agreed based on practice that preventive detention is required to deter and successfully counteract terrorism and violent acts.
Arguments in favor of Preventive Detention
Acts like preventive detention are required to deal with the terror elements prevailing in society such as terrorist attacks on innocent people targeting lots of lives. Having such acts tries to restrain the anti-social elements in society and protects the public from unnecessary violence.
The concept of personal liberty provided in the constitution takes an idealistic view and it becomes vital to put some reasonable restrictions for reasons of state security, public order, etc. to administer such evils.
This act is not used arbitrarily and there are only limited uses, the persons detained in these acts are not very large, and due attention is paid before preventive detention. There is also written protection provided by Habeas corpus under articles 32 and 226 in the Supreme Court and High Court.
This act becomes very important for the state as the state will have effective powers to deal with and protect the citizens in hostile activities. India is a large country having many separatist tendencies against national security and integrity and hence strict law becomes a necessity to counter subversive activities.
Arguments against Preventive Detention
Under Article 22 preventive detention may be implemented at any time and the Constitution also allows an individual to be detained even without a trial. Detaining anyone without a trial is a severe blow to the personal liberty of the individual.
It can result in a threat to the minorities as in the absence of proper safeguards it can be misused, especially against the Dalits and the minorities.
The long period of three months for detention which may also be extended on the recommendation of the advisory body in some instances can pose a threat to psychological and physical torture.
There is no procedure for the protection against any procedural vulnerabilities like torture and discriminatory treatment. The advisory board examines whether the detention is justified or not even before the high court, and the proceedings of the board are also confidential and accept their opinion.
Many democratic countries do not have such detention laws, even the UK which brought this law to India has also repealed it in their country. It also affects the International Covenant on Civil and Political Rights which permits detention only in matters of public emergency that threaten the nation’s life.
Protecting the limited resources while preserving the peace and order of the country is essential for a developing country like India.
India has undergone many rebellions since independence. Though preventive detention is not completely just or fair, however, it is also not completely useless too. What is required is some changes and alterations to fit well within the constitutional articles of the right to personal life and liberty.
The Law Commission of India report 2001 reveals that more than 14 lac persons were arrested under preventive detention and the Supreme Court also clarified that the law has to be strictly constructed with procedural safeguards.
It is paramount to close the existing loopholes that permit law enforcement agencies to misuse constitutional and statutory rights.
Article written by Chetna Yadav.