Preventive Detention | Constitutional Safeguards | All you need to know
What is preventive detention ? What Constitutional safeguards are available to detenu against preventive detention laws ?
The constitution of India, guarantees its citizens certain rights and freedom just like other constitution’s of the world. But there are circumstances where some individuals cross their limits and threaten the existence of the State. The framers of the Constitution had knowledge about the fact that these freedoms can be misused by certain people , in order to achieve their selfish interest or to cause harm to others. This is the reason that the framers included certain provisions regarding prevention of such a situation. These clauses restrict the act of the citizens so that their actions do not harm the other person in any form. The Preventive Detention is one such law where a preventive measure is taken to restrict unlawful use of the rights given to every citizen of India under the Constitution.
The Constitution of India empowers the parliament to enact laws for preventive detention for the security of state, maintenance of public order or maintenance of supplies and services essential to the community.
Preventive Detention means to detain a person so that the person is prevented from doing any possible crime i.e. it is an action that is taken by the administration on grounds of suspicion regarding some wrong actions which may be done by an individual that will be prejudicial to the state. The objective of this law is to not to punish but to prevent the detenu from doing something unlawful towards the society. It is the practice of confining an individual who is accused, before the trial on assumption, that their release would not be in the best interest of the society, by committing crimes if they are released.
Article 22 talks about the right to freedom as part of fundamental rights guaranteed under the Constitution. This article provides protection and rights granted in case of arbitrary arrest which is also known as punitive detention and its safeguards against preventive detention. The difference between the two is whether a person is charged with a crime or not. In case of detention the person is not accused of any crime but is restricted on a reasonable suspicion while in case of arrest the person is charged for a crime. In the matter of A.K Gopalan v. State of Madras , it was stated that: Preventive Detention has been regarded as sinister looking feature out of place in a democratic constitution, necessarily designed to prevent the abuse of freedom by anti-social and subversive elements which might imperil the national welfare.
There are few acts that has been framed in order to fill the gaps and provide provisions of detention like Terrorist and Disruptive Activities (Prevention) Act, 1987(TADA), National Securities Act, 1980 and Prevention of Terrorism Act (POTA) , 2002.
To prevent reckless use of Preventive Detention, certain safeguards are provided:
1) Review by Advisory Board : Clause 4 of the Article 22 states that:
No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:
No law that is framed for preventive detention gives the authority to detain any person for more than 3 months at the first instance. This period can be extended beyond 3 months if the advisory board reports a sufficient cause for such detention. The advisory board consists of people who are equally qualified as a judge of the High Court.
2) Communication of grounds of detention to detenu : The detainee has the right to know about the grounds on which he had been detained. Clause 5 of the Article states that :
When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order
Any authority who detains any person under law providing for preventive detention shall communicate its grounds to the person. The ground must be with a rational connection in accordance with the object which the detenu is prevented from attaining. Although the detaining authority is under no obligation to tell the grounds of detention to the detenu prior to his arrest, it is advisable to communicate about his grounds so that he is given the opportunity of being represented and also being heard.
3) Detenue’s Right of Representation: According to Clause 5, the detaining authority must give the detainee the earliest opportunity to represent itself against the detention. The authority who gives the orders for detention shall give the person a reasonable chance to represent him.
The Constitution (Forty-Fourth Amendment) Act, 1978 amended Article 22 for introducing a few more safeguards in case of preventive detention which are as follows:
(i) The maximum period for which a person could be detained without the opinion of the advisory board has been reduced from three to two months. In all cases of preventive detention beyond two months, the advisory board is to be consulted. There will be no preventive detention beyond two months unless the advisory board reports that there is sufficient cause for such detention.
(ii) An advisory board is to consist of a chairman and not less than two other members, the chairman being a serving Judge of the appropriate High Court and the other two members being the serving or retired High Court Judges. The board is to be constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court.
(iii) No person is to be kept in preventive detention beyond the maximum period prescribed by any law made by the Parliament.
However, the changes have not yet been notified and these constitutional amendments have not yet come into effect and Articles 22 (4) to (7) still continue to be the same as they stood before the amendment.
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