Preventive Detention

• Context (IE): DY Chandrachud called Telangana’s use of the preventive detention law “a callous exercise of exceptional power.”
• Preventive detention means the detention of a person by the state without trial and conviction but merely on suspicion. The detention could be up to a year unless extended.
• The district magistrate can order to detain a person to maintain “public order.” The state can delegate this power to the police as well.
• The state must inform the detainee of the grounds for their detention.
• The grounds must be presented in a language the detainee can understand.
• A basic set of facts justifying detention must be communicated at once, and the state cannot later include new reasons to strengthen the original detention order.
• The state does not need to disclose facts if it is against the public interest to do so.
• The detainee can challenge the detention order in a court of law.
• If the detention is ordered for more than 3 months, it requires the approval of an Advisory Board.
• States set up these Boards, which generally consist of retired judges and bureaucrats.
• A detainee is generally not allowed legal representation before the Board.
• If the Board confirms the detention, the detainee can move to court challenging the detention order.

Examples of Central laws under which preventive detention can be ordered include: National Security Act (NSA) Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974

Role of Court

• Judicial review for preventive detention is limited because IC prioritises the state’s “subjective satisfaction” when ordering a detention.
• A judicial review is limited to whether the Advisory Board applied its mind, considered all material facts and whether the state showed obvious malafide in ordering detention.

Preventive detention under IC

• IC contains provisions for preventive detention under clauses (4) to (7) of Article 22 (Part III: FRs).
• Article 22 of IC prescribes protection against arrest and detention.
• However, it has a major exception under Article 22 (3) (b), which states that none of those safeguards apply to any person arrested or detained under any law providing for preventive detention.

Preventive detention is a wartime measure in countries such as Britain, the US, and Canada.

Way forward

• Preventive detention is an exceptional law and should be used sparingly. It shouldn’t be used to avoid bail and keep someone in jail longer.
• The SC, on many occasions, said that:
  • Preventive detention cannot be invoked to circumvent the granting of bail.
  • The state cannot detain an accused when he is likely to be released on bail for the same offence.

Article 22 of IC: Protection against arrest and detention in certain cases An arrested person has the right: To know about the grounds of arrest. To consult and to be defended by a legal practitioner of his choice. Arrested persons must be produced before the nearest magistrate within twenty-four hours, excluding the travel time. A person cannot be kept in custody beyond the said period without the permission of a magistrate. These provisions don’t apply to: A person of an enemy alien. A person arrested under a law providing for preventive detention. Any law allowing preventive detention cannot detain a person for more than three months unless: The advisory board believes there is a good reason for such detention. If a person is detained under certain circumstances or for a specific case, parliamentary law may state that the opinion of an advisory board is not required in such situations. A person cannot be detained for more than the maximum punishment period prescribed by the detention law under which they were arrested. If a person is detained under a preventive detention law, the authority must: Inform grounds for the detention order. Allow them to challenge it. Authority can choose not to disclose the fact if it is against the public interest. The Parliament can make laws prescribing: The circumstances or cases under which a person can be detained for longer than three months under preventive detention law without the opinion of an Advisory Board. The maximum period of detention for different categories under the preventive detention law. The procedure to be followed by an Advisory Board.