PREVENTIVE DETENTION - POLITY
News: 'Preventive
detention es ariary gives power to state'
What's in the news?
● The
Supreme Court observed in a judgment that preventive detention laws in India
are a colonial legacy and confer arbitrary power to the state.
Key takeaways:
● A
27-page judgment authored by a Bench led by Justice Krishna Murari de- scribed
preventive detention laws as "extremely powerful". The court warned
that the prevention detention has an ability to provide the state with
unfettered discretion.
● The
court said judges should ensure that the government has followed every
procedure of law while flexing preventive detention powers against individuals.
Preventive detention:
● Preventive
detention means detention of a person without
trial and conviction by a court.
● The
purpose is not to punish a person for a past offence but to prevent him from
committing an offence in the near future.
● Thus,
preventive detention is only a precautionary measure and based on suspicion.
● Still
now, no democratic country in the world has made preventive detention as an
integral part of the constitution.
Constitutional provision:
● The
Article 22 (3) of the Indian
constitution provides that if a person is arrested or detained under a law
providing for preventive detention, then the protection against arrest and
detention under Article 22 (1) and 22 (2) shall not be available.
● The
provision is available to both citizens
as well as aliens.
● The
detention of a person cannot exceed three months unless an advisory board reports sufficient cause for the extended detention.
The board is to consist of judges of a
high court.
● The
grounds of the detention should be communicated to the detenu. However, the
facts considered to be against the public interest need not be disclosed.
● The
detenu should be afforded an opportunity to make a representation against the
detention order.
● The
Article 22 also authorises the parliament
to prescribe
○ the
maximum period for which a person is detained in any case under a preventive
detention law.
○ the
procedure to be followed by an advisory board in an inquiry.
○ the
circumstances and the classes of cases in which a person can be detained for
more than three months under a preventive detention law without obtaining the
opinion of an advisory board.
● 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.
Grounds for preventive detention:
Parliament:
The Parliament has exclusive
authority to make law of preventive detention for reasons connected with
● Defence
● Foreign
affairs
● Security
of India.
Both Parliament and State legislature:
Both the parliament and state
legislatures can concurrently make a law of preventive detention for reasons
connected with
● Security
of a state
● Maintenance
of public order
● Maintenance
of supplies and services essential to the community.