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Preventive Detention

Context

  • The Jammu and Kashmir High Court ordered the release of Jaffar Ahmad Parray, who was detained under the state’s Public Safety Act, 1978 (PSA).

What is Preventive Detention?

  • Preventive detention means to detain a person to prevent that person from committing any possible crime.
  • It is an action taken by the administration on the grounds of the suspicion that some wrong actions may be done by the person concerned which will be prejudicial to the state.
  • The grounds for Preventive detention are:
  • Security of state, maintenance of public order,
  • Maintenance of supplies and essential services and defense,
  • Foreign affairs or security of India.
Punitive Detention

– It is to punish a person for an offense committed by him/her after trial and conviction in a court.

Safeguards Provided By The Constitution

  • To prevent reckless use of Preventive Detention, certain safeguards are provided in the Constitution under Article 22:
  • A person can be taken to preventive custody only for 3 months at the first instance. If the period of detention is extended beyond 3 months, the case must be referred to an Advisory Board.
  • The detainee is entitled to know the grounds of his detention. The state, however, may refuse to divulge the grounds of detention if it is in the public interest to do so.
  • The detaining authorities must give the detainee the earliest opportunities for making a representation against the detention.

Arguments in Favour of Preventive Detention

  • National Security: India faces various internal and external security threats, including terrorism, insurgency, and organized crime.
  • Preventive detention is necessary to address these threats by allowing law enforcement agencies to detain individuals suspected of involvement in activities that pose a risk to national security.
  • Maintaining Public Order: In civil unrest, communal tensions, or public disturbances, preventive detention is used to prevent further escalation of violence and maintain public order.
  • Preserving Integrity and Sovereignty: Individuals involved in activities such as sedition, espionage, or conspiracy against the state are detained to prevent their actions from causing harm to the integrity and sovereignty of the nation.
  • Deterrence: The existence of preventive detention laws and their occasional use serve as a deterrent to individuals or groups considering engaging in unlawful activities.
  • The knowledge that authorities can detain individuals suspected of posing a threat to public safety dissuades potential offenders from carrying out their plans.

Arguments Against Preventive Detention

  • Colonial Law: Preventive detention was introduced to India during the colonial period and was largely used to target freedom fighters. It would therefore seem surprising that the Constitution allows both the union and state to enact preventive detention laws.
  • Misuse of the Law: The state may refuse to divulge the grounds of detention if it is in the public interest to do so. This power conferred on the state leaves scope for arbitrary action on the part of the authorities.
  • Against the Fundamental Rights: Part III of the Constitution, which deals with fundamental rights, also gives the power to suspend these rights for preventive detention.
  • Article 22 which provides Protection Against Arrest and Detention in Certain Cases expressly excludes preventive detention cases from direct judicial scrutiny and instead creates an administrative review framework.
  • Detention based on Suspicion: The law authorizes the executive to arrest any person from whom reasonable suspicion arises that he can commit any cognizable offense and the police can arrest that person without a warrant which is arbitrary.
  • Nature of Application of Law: In countries such as Britain, the United States, and Canada, preventive detention is a wartime measure. India is one of the few countries in the world whose Constitution allows for preventive detention during peacetime.

Way Ahead

  • For preventive detention, there are very narrow grounds for judicial review because the Constitution emphasizes the state’s “subjective satisfaction” when ordering detention.
  • More safeguards can be provided to the detainee so that there is a narrow scope of misuse.
  • Judges can ensure that the government has followed every procedure of law while using the preventive detention powers against individuals.