Preventive Detention

Preventive Detention means the imprisonment of a person with the aim of preventing them from committing further offences or for maintaining public order. While usually a person is committed after committing a crime, in preventive detention they are committed before they can commit a crime. State Legislatures can make preventive detention laws only for matters related to security of the State, maintenance of public order or maintenance of supplies and services essential to the community under List III while Centre has wider powers under List I and can make preventive detention laws for reasons connected with public order, defence, foreign affairs or security of India.

The Supreme Court recently in Ameena Begum Case (2023) has stated that Preventive Detention laws should be used in exceptional circumstances only for tackling urgent issues instead of being used in routine situations. Article 22 enacts safeguards also with an Advisory Board to be setup for oversight over preventive detention of people.

Preventive Detention laws in India have a colonial legacy as Britishers introduced it to arrest people solely based on suspicions. First introduced in the Bengal Regulation Act of 1818 in three Presidencies of Calcutta, Bombay, and Madras. Later the Rowlatt Act in 1919 allowed detention of freedom fighters without a proper trial for an indefinite time. This Act was called the 'Black Law'. The Constituent Assembly of India while introducing this legislation debated its continuance in free India when even UK and USA do not have it. But they believed that preserving the state's security is equally vital alongside individual liberty. India faces unique challenges as the world's biggest and most diverse democracy with communal and caste based issues still persisting, hence making Preventive Detention laws a "necessary evil" to protect integrity of India.

Preventive detention is the act of detaining a person based on the apprehension of potential disruption to peace and stability so that they are not able to cause any harm to society. The Objective behind Preventive Detention is not to punish the person detained but to prevent the detained person from doing something which is prejudicial to the State.

• State Legislatures have the power to enact laws for Preventive Detention, for reasons related to maintenance of public order. (Entry 3 List III, Schedule VII).
• Union has additional powers to enact Preventive Detention related laws for reasons connected with defence, foreign affairs or security of India (Entry 9, List - I, Schedule - VII)

Authorities competent to make Orders under Preventive Detention Laws: Ordinarily, Union and State Governments are empowered to pass Preventive Detention Orders only under respective Preventive Detention Laws.

• Only a Central government officer above the rank of a Secretary can make order for preventive detention.
• In some State specific laws this power is delegated to: Officer above rank of Secretary, a District Magistrate, Sub-Divisional Officer, Commissioner of Police or an Additional District Magistrate.

Constitutional Safeguards under Article 22 for persons detained under a Preventive Detention Law: Article 22 has two halves, first half deals with arrests and detentions made under Ordinary Laws (like Indian Penal Code of 1860), the other half deals with cases of Detention under Preventive Detention Laws.

1. Certain Rights not Available: Ordinary rights available to person detained like right to know grounds of arrest, consulting legal practitioners, production before a magistrate within 24 hours etc, are not available to people under Preventive Detention.
2. Know Grounds of Detention: When a person is being detained under any Preventive Detention law, he is entitled to know the grounds for his arrest. However, the State may refuse to disclose the grounds of arrest to the person being detained, if the State deems it fit in public interest.
3. Challenge Order of Detention: The person being detained must be given an earliest opportunity to question and challenge the detention.
4. Limited Period of Detention: No person can be detained for more than 3 months under any Preventive Detention law, unless the Advisory Board gives an opinion in this behalf stating that in the opinion of the advisory Board there is "Sufficient Cause" to detain the person for more than 3 months.
   • Note: the 44th Constitutional Amendment Act of 1978 lowered the period of detention, which a person can be subject to without obtaining an approval from the board from 3 months to 2 months. However, this has not yet been notified and the period of 3 months detention continues to remain the law.
5. Composition of the Advisory Board: Persons who are or have been or are qualified to be Judges of a High Court

• In Ameena Begum Case (2023) it was held that Preventive Detention is an exceptional measure for emergency situations and should not be used routinely.
• Ankul Chandra Pradhan Case (1997), states that the object of preventive detention is not to punish but to prevent anything prejudicial to the security of the state.
• In Maneka Gandhi Case (1978) it was held that the procedure for preventive detention must be fair, reasonable and be given in a law. Procedural safeguards must be followed during preventive detention.
• In A. K. Gopalan Case (1950) & Amrit Lal Case (1994) court has upheld Preventive Detention laws and said they do not violate the right to freedom and liberty of citizens under Article 19 and 21. They are necessary for national security. Following laws were upheld
  • The Conservation of Foreign Exchange and prevention of smuggling activities Act, 1974 (COFEPOSA)
  • Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA).
  • Preventive Detention Act, 1950.

National Commission to Review the Working of the Constitution (NCRWC): Submitted its report in 2002 after reviewing the Preventive Detention Provisions provided two recommendations:-

1. The maximum period for detention under Article 22 should be six months
2. The composition of the advisory board should consist of a chairman and two other members who should be serving judges of a High Court.

Preventive Detention laws are a powerful tool to maintain national security. They allow detention of someone before commission of crime just based on the apprehension that a crime can be committed. The objective is not to punish someone, but to protect the state. However, it is important to realise that it is also a double-edged sword that needs to be wielded with utmost care and responsibility as unchecked use can result in violating Fundamental Rights of citizens. Safeguards given in Article 22 must be followed and the Advisory Board should be given full discretion and autonomy.