Preventive Detention : Legal aspects – UPSC GS2

Preventive Detention:
  • Preventive Detention is the most contentious part of fundamental rights in the Indian constitution.
  • 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.
Types of arrests:
  • Punitive Detention: Detention as a punishment for the crime committed by an individual. It takes place after the actual commission of an offence or at least after an attempt has been made.
  • Preventive Detention: The imprisonment of a person with the aim of preventing them from committing further offences or of maintaining public order.
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.
What is the Government’s justification?
Several protests from history to the present day like the demand of statehood, reservation, labour & peasant issues, communal rights etc. have justified the need for Prevention detention to preserve the public order.
What are the constitutional safeguards against preventive detention?
  • Right to be informed on Grounds of arrest
  • Right to consult & be defended by a lawyer
  • Right to produce before the magistrate within 24 hours (excluding travel time)
  • Right to be released after 24 hours unless magistrate authorizes further detention
Supreme Court’s View:
  • Detention of a person was a serious matter affecting the liberty of the citizen. Hence, preventive detention cannot be resorted to when sufficient remedies are available under the ordinary laws of the land for any omission or commission under such laws.
  • The detention of an individual under preventive detention law should be based on apprehensions that the concerned person is a threat to “public order” affecting the community at large. Mere ‘law and order’ problems such as indulging in cheating or criminal breach of trust would not be sufficient.
  • The state should not arbitrarily use preventive detention to deal with all “law and order” problems, which could be dealt with by ordinary law.
  • In all such cases, the court must ask one question in deciding its legality, i.e. was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal.
  • Preventive detention must fall within the four corners of Article 21 (due process of law). It must be read with Article 22 (safeguards against arbitrary arrest and detention) and the statute in question.
Section 41 of CrPC:
  • Provides power to arrest people without warrant