Preventive Detention

27 Oct Preventive Detention

This article covers “Daily Current Affairs” and the topic details “Preventive Detention”. This topic has relevance in the “Polity and Governance” section of the UPSC CSE exam.

For Prelims:

Preventive Detention : Constitutional Provisions 

Laws for Preventive Detention 

For Mains:

GS2:  Polity and Governance

Why in the news?

Recently, the Supreme Court has expressed concerns about the Telangana government’s use of Preventive Detention law in at least three instances.

What is Preventive Detention?

• Preventive detention is a legal mechanism that empowers authorities to detain individuals who have not committed a crime but are deemed potential threats to law and order. 
• It involves detaining individuals without a trial, primarily preventing them from engaging in criminal activities.
• The Supreme Court of India has articulated that the purpose of preventive detention is not punitive; instead, it is aimed at averting actions that may jeopardise the state’s security.
• Preventive detention differs from pre-trial detention. Pre-trial detention involves individuals awaiting trial for a crime they are accused of committing. In contrast, preventive detention allows the apprehension of individuals as a precaution, even if they haven’t committed a crime.
• The authority to enact preventive detention laws in India is derived directly from Part III: Fundamental Rights of the Constitution.

Constitutional Provisions: What are the powers of the state?

• Article 22(1) of the Constitution guarantees protection against arrest and detention without due process of law. 
• However, Article 22(4) provides for an exception to this rule, allowing for preventive detention laws to be made for reasons connected with:
  • Defence
  • Foreign affairs
  • Security of India
  • Maintenance of public order
  • Maintenance of supplies and services essential to the community

• Article 22(5) of the Constitution provides certain safeguards against the misuse of preventive detention laws. These safeguards include:
  • No person can be detained for more than three months without an advisory board reporting that there is sufficient cause for such detention.
  • The grounds of detention must be communicated to the detenu as soon as possible, except when it is not in the public interest to do so.
  • The detenu has the right to make a representation to the advisory board against the detention.

Legal Framework of Preventive Detention Across India 

• Laws enacted by the Parliament
  • National Security Act
  • Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA)
  • Unlawful Activities (Prevention) Act, 2008 
• State-Specific Laws:
  • Bihar Control of Crimes Act, 1981
  • Tamil Nadu Prevention of Dangerous Activities Act, 1982
  • Telangana Prevention of Dangerous Activities Act, 1986 (PD Act).
  • Gujarat Prevention of Antisocial Activities Act, 1985
  • Maharashtra Prevention of Organized Crime Act, 1999 (MCOCA)

Assessment of Preventive Detention by Courts: 

• Judicial review in such detention cases is minimal because the Constitution prioritises the state’s “subjective satisfaction” when issuing detention orders.
• The primary standard for assessing such orders is the state’s subjective opinion rather than the constitutional rights of individuals.
• The Court cannot replace the state’s subjective judgment, which makes it challenging to confirm the accuracy of the facts in the detention grounds.
• Judicial review primarily checks if the Advisory Board considered all the facts, applied their judgment, and if the state acted in bad faith when ordering detention.
• Courts often cancel detention orders for technical reasons, like delays in Advisory Board decisions, timely provision of reasons, and giving reasons in a language the detainee understands.

Sources: In Telangana campaign, one silence: draconian and ‘callous’ detention law | Political Pulse News – The Indian Express 

Download plutus ias current affairs eng med 27th Oct 2023

Q1. With reference to Preventive Detention, consider the following statements: 

1. The powers to put a person in such detention are conferred by the Part IV of the Constitution. 
2. It involves individuals awaiting trial for a crime they are accused of committing

Which of the statements given above is/are correct?

(a) 1 only

(b) 2 only

(c) Both 1 and 2 

(d) Neither 1 nor 2

Check Answer

Q2. Parliament has the authority to make a law of preventive detention for reasons connected with how many of the following reasons: 

1. Defence
2. Foreign affairs
3. Security of India
4. Maintenance of public order
5. Maintenance of supplies and services essential to the community
6. Protection of interests of any scheduled tribe

Select the correct answer using the codes: 

(a) Only three

(b) Only four

(c) Only five

(d) All six

Check Answer

Q3. Discuss the evolution, significance, and challenges associated with preventive detention laws in India. 

Gaurav N