Preventive detention act

Preventive detention act

  • Taking someone into custody who has not yet committed a crime but who the authorities believe poses a threat to law and order is known as preventive detention.
  • In India, the constitution itself gives the parliament the authority to enact laws allowing for preventative detention in order to protect national security.

  • Regarding preventative detention, the parliament has sole legislative authority.

Data highlights:

  • Preventive detentions in 2021:
      • The National Crime Records Bureau recently issued its most recent crime figures, which show 
        • that preventive detentions increased by more than 23.7% in 2021 compared to the previous year.
        • Almost 1.1 lakh people will be held in preventive detention in 2021.
        • At the conclusion of the previous year, there were a total of nearly 24,500 persons either in custody or still being held under preventive detention.
    • National Security Act
  • Over half (241) of the 483 preventive detentions made under the National Security Act as of the end of 2021 were either in custody or currently being held.
      • While the number of individuals subject to preventative detention has increased in 2021, the NCRB statistics revealed that the number of individuals detained in this way under the National Security Act had decreased dramatically from the previous year.
      • NSA preventive detentions reached a peak of 741 in 2020. In 2021, this number fell to 483.
  • Other laws:
    • The Goonda Act (State and Central) (29,306), the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (1,331), and a category referred to as "Other Detention Acts," under which the majority of the detentions were registered, are among the other laws for which the NCRB has recorded data on preventive detentions.
    • The "Other Detention Actions" category has continuously seen the biggest number of people placed under preventative custody since 2017.

Types of Arrests:

  • Punitive detention: When someone is held as punishment for a crime they committed, they are being detained. It takes place after the crime is actually committed, or at the very least after the attempt.
  • preventive detention:  refers to the detention of a person to prevent them from committing additional crimes or maintaining the peace.

Constitutional Provisions related to Preventive Detention

  • Article 22(3)(b): It permits preventative detention and restricts personal freedom in order to maintain public order and state security.
  • Article 22(4): No statute allowing for preventative detention may legalize the detention of a person for more than three months. A report by the advisory board is necessary for sufficient cause in the event of an extended extension.
  • The 44th Constitutional Amendment Act shortened the time of imprisonment without seeking the advisory board's opinion from three to two months; however, this provision has not yet been put into effect, therefore the initial period of three months is still in effect.

Legislation in India on Preventive Detention

  • The National Security Act of 1980 allows for up to a year of administrative detention.
  • COFEPOSA 1974: The act established preventive detention as a means of preserving and enhancing foreign exchange as well as discouraging illegal trade prevailing.
  • TADA 1985: The main goal of this law is to show that preventative detention is necessary to deter and effectively combat terrorism and violent activities.

Grounds for Preventive Detention

  • Four reasons can be used to justify preventive detention: 
    • state security, 
    • preservation of public order, 
    • preservation of essential services and defence, and 
    • foreign affairs with regard to India's security.

Important judgments

  • Alijav v. District Magistrate, Dhanbad: The Supreme Court of India has ruled that even though criminal proceedings are about punishing someone for a crime they have already committed. Preventive detention is tied to the suspicion of a threat rather than an offence.
  • Ankul Chandra Pradhan v. UOI: In this case, the Supreme Court of India ruled that the purpose of preventative detention is to keep the individual from doing anything that might jeopardize the security of the state rather than to punish them.

Arguments in favor of Preventive Detention

  • Tackle terrorist threat: Such actions are necessary to combat terror components like terrorist attacks on unarmed civilians that claim many lives. 
  • Deterrence: Such behaviors are a deterrent to the anti-social and the general population from needless violence.
  • Idealistic view: The constitutional philosophy of personal liberty is an idealistic one; restrictions on freedom for the sake of public order, state security, or other considerations are seen as inevitable evils that must be administered.
  • Writ protection: The writ of habeas corpus under articles 32 and 226 in the Supreme court and the high court has greatly protected the use of preventative detention for victimisation that is unlawful.  
  • National security: The government should have the strong legal authority to punish citizens who engage in a hostile activity such as terrorism, coercion, or espionage.  
  • Separatist tendencies: Due to the size of India and the existence of several separatist organisations that threaten national security and integrity, stringent laws are needed to thwart subversive operations. 

Arguments against Preventive Detention

  • Preventive detention may be used at any moment under article 22, and the constitution also permits the detention of a person even in the absence of a trial. The right to personal liberty is severely harmed when someone is detained without being put on trial.
  • Minorities may be in danger as a result of it since, in the lack of adequate protections, it may be abused, particularly against Dalits and other minorities.
  • The lengthy three-month detention period, which may occasionally be extended on the advisory body's advice, puts detainees at risk of both psychological and physical abuse.
  • There is no system in place to safeguard against procedural flaws like torture and unfair treatment. Even before the high court, the advisory board assesses whether the detention is justifiable or not; the board's proceedings are confidential.
  • Such detention regulations are not common in democratic nations; even the UK, which introduced this law to India has repealed it there. 
  • It also has an impact on the International Covenant on Civil and Political Rights, which only permits detention in situations of public emergency which threaten the nation’s life. 

Safeguards provided against the misuse of Preventive Detention

  • Every instance of preventative detention must be permitted by law, and not at the executive's whim. It indicates that the executive cannot arbitrarily exercise the power of  preventive detention.
  • Detention for prevention has a set duration and can't be longer than three months. Also, it stipulates that no one can be held in custody indefinitely.
  • The person shall be given the earliest opportunity to object to the preventative detention under a provision for early representation.
  • Every case of preventive detention must be brought before an advisory board made up of High Court judges or individuals qualified to serve as the judges of the High Court. The case must be brought before the advisory board within three months, and any extension of the detention period beyond three months requires the board's approval.

Way Forward

  • Since its independence, India has experienced numerous uprisings. Preventive detention isn't quite fair or just, but it's also not entirely worthless either. To fit effectively within the constitutional articles of right to personal life and liberty, several modifications and alterations are necessary.
  • It is essential to close the legal gaps that allow law enforcement to abuse statutory and constitutional rights.

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