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  • 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

  1. 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.
  2. Arrested persons must be produced before the nearest magistrate within twenty-four hours, excluding the travel time.
  3. A person cannot be kept in custody beyond the said period without the permission of a magistrate.
  4. These provisions don’t apply to:
    • A person of an enemy alien.
    • A person arrested under a law providing for preventive detention.
  5. 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.
  6. A person cannot be detained for more than the maximum punishment period prescribed by the detention law under which they were arrested.
  7. If a person is detained under a preventive detention law, the authority must:
    • Inform grounds for the detention order.
    • Allow them to challenge it.
  8. Authority can choose not to disclose the fact if it is against the public interest.
  9. 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.
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