In News:

• Detention in its simplest sense means to curb the liberty of an individual
• There are 2 types of Detention:
• Preventive Detention
• Punitive Detention

Preventive detention

• 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.

Constitutional legitimacy

• Article 22 of the Indian Constitution provides protection against arrest and detention in certain cases.
• Article 22 (1) of the Indian Constitution says an arrested person cannot be denied the right to consult, and to be defended by, a legal practitioner of his choice.
• It allows for preventive detention and restriction on personal liberty for reasons of state security and public order.
• Article 22 (4) states that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless:
  • An Advisory Board reports sufficient cause for extended detention.
  • Such a person is detained in accordance with the provisions of any law made by the Parliament.
  • The 44th Amendment Act of 1978 has reduced the period of detention without obtaining the opinion of an advisory board from three to two months. However, this provision has not yet been brought into force, hence, the original period of three months still continues.

The grounds for Preventive detention are:

• Security of state.
• Maintenance of public order.
• Maintenance of supplies and essential services and defence.
• Foreign affairs or security of India.

Different Cases

• Alijav vs. District Magistrate, Dhanbad
  • The Supreme Court stated that, while criminal proceedings involve punishing a person for an offense committed by him, preventive detention does not.
• Ankul Chandra Pradhan vs. Union of India
  • The Court stated that the purpose of preventive detention is not to punish but to keep the detainee from doing anything that would jeopardize the state’s security.
• AK Gopalan vs. State of Madras
  • The Supreme Court upheld the constitutionality of the Preventive Detention Act.
  • Furthermore, the Court held that Article 22 of the Constitution includes extensive procedural safeguards for preventive detention.
  • As a result, the Court determined that the contested act did not violate fundamental rights because it met all of the procedural safeguards outlined in Article 22(5).

Preventive Detention Act

• The Parliament has enacted several laws in this respect which in addition to the notorious Preventive Detention Act include:
• The National Security Act, Section 13, 1980 (provides for administrative detention for a period of up to one year)
• The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) (provides for administrative detention for a period of up to six months)
• The Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, Section 13, 1980 (six months)
• The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, Section 10, 1988.

Concerns

• The power of preventive detention is mostly misused by the authorities.
• The use of preventive detention even during peacetime denotes ‘anachronism’.
• It is a matter of irony that the makers of our Constitution, who themselves were once victims of the tyranny of preventive detention laws, still chose to grant powers to governments under the Constitution to enact such laws.
• According to Section 50 of the Criminal Procedure Code (CRPC), any person arrested has to be informed of the grounds of arrest and has the right to bail. But getting bail is not a simple task in reality.

Way Ahead

• The preventive detention should be strictly used with the delicate balance between social security and citizen freedom.

Note:

This topic is Covered on 08.09.2022

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