Simone Lawson
Preventive detention is a contentious issue in India, where it is enshrined in Article 22 of the Constitution, allowing authorities to detain individuals without charge or trial for up to three months. This is a significant deviation from international standards, as it denies detainees the rights to legal representation, cross-examination, timely or periodic review, access to the courts, and compensation for unlawful detention. However, there are constitutional safeguards in place to protect against the misuse of preventive detention and to ensure that personal liberty is not arbitrarily infringed upon. These safeguards include the right of detainees to know the grounds for their detention, the provision for review by an advisory board, and the requirement for authorities to afford detainees the earliest opportunity to make a representation against their detention.
| Characteristics | Values |
|---|---|
| Maximum period of detention | 3 months |
| Grounds for detention | Must be communicated to the detainee |
| Right to legal representation | Not available |
| Right to cross-examination | Not available |
| Timely or periodic review | Required |
| Access to the courts | Not available |
| Compensation for unlawful arrest or detention | Not available |
| Advisory board | Required |
| Right to make a representation against the order of detention | Available |
| Scope of safeguards | Not applicable to enemy aliens |
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What You'll Learn
- Preventive detention is limited to three months without an Advisory Board review
- Detainees must be informed of the grounds for their detention
- Detainees must be given the earliest opportunity to make a representation against detention
- Preventive detention is subject to periodic review by an advisory board
- Preventive detention is not available to enemy aliens
Preventive detention is limited to three months without an Advisory Board review
Preventive detention is a contentious issue in the Indian Constitution. It allows the authorities to detain individuals without a trial or conviction, for preventive reasons, such as the maintenance of public order or national security. India is one of the few countries in the world whose constitution allows for preventive detention during peacetime without safeguards that are considered basic requirements for protecting fundamental human rights.
Article 22 of the Indian Constitution grants protection to individuals who are arrested or detained. It has two parts: the first deals with cases of ordinary law, which includes situations where an individual is detained as part of a criminal investigation; the second deals with cases of preventive detention law. Article 22(4) states that no law providing for preventive detention shall authorise the detention of a person for longer than three months unless an Advisory Board reports sufficient cause for extended detention. This Advisory Board must consist of persons who are, or could be, appointed as judges of High Courts.
The detainee must be informed of the grounds for their arrest and detention, and they have the right to know the reasons behind their arrest, enabling them to effectively exercise their legal rights. The state may refuse to divulge the grounds of detention if it is deemed against the public interest. The detaining authorities must give the detainee the earliest opportunity to make a representation against the detention.
The primary objective of preventive detention is not to punish an individual for a past offence but to prevent them from committing an offence in the future. This kind of detention is used when the authority has insufficient evidence to make charges but can justify detention on grounds of suspicion.
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Detainees must be informed of the grounds for their detention
Preventive detention is a contentious issue in India, as it allows for the detention of individuals without a trial or conviction. This is a denial of liberty and a blow to personal freedoms. India's Constitution is one of the few in the world that permits preventive detention during peacetime, and it has been deemed illegal under the European Convention on Human Rights.
Despite this, the Indian Constitution does provide some safeguards for detainees, and these are outlined in Article 22. This article applies to all citizens of India, except for enemy aliens and those detained under preventive detention laws.
Article 22 states that detainees must be informed of the grounds for their detention. This is to enable them to exercise their legal rights effectively. The state may, however, refuse to divulge the grounds for detention if it is deemed to be against the public interest.
The authority making the order must, as soon as possible, communicate to the detainee the reasons for their detention and provide them with the earliest opportunity to make a representation against the order. This is to ensure that the detainee can exercise their legal rights.
The right to know the grounds for detention is an important safeguard, as it allows detainees to understand the reasons for their detention and to potentially challenge them. This helps to protect against arbitrary action and ensures that detainees are not denied their rights.
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Detainees must be given the earliest opportunity to make a representation against detention
Preventive detention is the detention of an individual without a trial or conviction by a court. It is a contentious part of India's Constitution, as it allows the authorities to detain individuals for preventive reasons, such as the maintenance of public order or national security.
Article 22 of the Constitution of India provides certain safeguards regarding arrests and detentions. These safeguards are designed to minimise the misuse of preventive detention and protect personal liberty from arbitrary action.
One of the key safeguards provided in Article 22 is the right of detainees to be given the earliest opportunity to make a representation against their detention. This right has been affirmed by the Supreme Court in cases such as Tara Chand v. State of Rajasthan (1981) and Jasleela Shaji v. The Union of India & Ors. (2023). In the latter case, the detenue was informed of their right to make a representation to the detaining authority and other authorities.
The right to make a representation against detention is essential to ensuring that detainees have a chance to challenge their detention and assert their rights. This right is particularly important given that preventive detention can result in the denial of liberty for an indefinite period without a trial.
It is worth noting that while Article 22 provides safeguards for detainees, it also includes exceptions. For example, the state may refuse to disclose the grounds of detention if it is deemed against the public interest to do so. Additionally, Article 22 allows for preventive detention during times of emergency, such as a proclamation of Emergency by the President of India, when certain restrictions on rights and safeguards may be imposed.
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Preventive detention is subject to periodic review by an advisory board
Preventive detention is a contentious issue in India, as it allows for the detention of individuals without charge or trial for up to three months. This is a deviation from international standards, as it denies detainees the rights to legal representation, cross-examination, timely or periodic review, access to the courts, and compensation for unlawful arrest or detention.
Article 22 of the Indian Constitution provides certain safeguards against preventive detention, including the right to know the grounds for detention and the provision for a review by an advisory board. This advisory board, consisting of persons qualified to be appointed as judges of High Courts, plays a crucial role in ensuring that preventive detention is not misused or arbitrarily applied.
The advisory board is responsible for conducting periodic reviews of preventive detention cases. According to Article 22(4), no law providing for preventive detention shall authorise the detention of a person for longer than three months unless an advisory board reports sufficient cause for extended detention. This means that if the authorities wish to extend the detention beyond the initial three-month period, they must seek approval from the advisory board.
The advisory board's review process includes examining the grounds for detention and assessing whether there is sufficient cause to continue the detention. The board has the power to approve or deny the extension of detention based on their evaluation of the case. This periodic review serves as a check and balance on the power of the authorities and helps protect the rights of detainees.
The advisory board also plays a role in ensuring that detainees are provided with the earliest opportunity to make a representation against their detention. In the case of Tara Chand v. State of Rajasthan (1981), it was established that the detaining authority must consider the representation of the detainee and that any delay in doing so would be a violation of Article 22(5) of the Constitution. This further highlights the role of the advisory board in safeguarding the rights of individuals held in preventive detention.
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Preventive detention is not available to enemy aliens
Preventive detention is a contentious issue in India, as it allows the authorities to detain individuals without charge or trial for up to three months, denying them rights such as legal representation and access to the courts. This provision is outlined in Article 22 of the Indian Constitution, which also includes certain safeguards to prevent the misuse of preventive detention. However, these safeguards do not apply to enemy aliens, as specified in Article 22(3)(a).
Article 22(3)(a) states that the protections against arrest and detention outlined in Article 22 do not apply to enemy aliens. This means that enemy aliens can be detained indefinitely without the same legal protections afforded to other individuals. The term "enemy alien" typically refers to citizens or natives of a country that India is in conflict with.
The inclusion of preventive detention in the Indian Constitution is notable, as it gives constitutional sanctity to a practice that can infringe on fundamental human rights. India is one of the few countries that allow preventive detention during peacetime, and this practice has been deemed illegal under the European Convention on Human Rights.
The lack of safeguards for enemy aliens in India's preventive detention laws raises concerns about the potential for abuse and rights violations. Similar concerns have been expressed about the Alien Enemies Act in the United States, which grants the president the power to detain or deport citizens of enemy nations without a hearing. This act has been invoked during times of conflict and has resulted in detentions and expulsions based solely on ancestry.
The power to detain enemy aliens without the same legal protections as others is a sensitive issue that requires careful consideration to balance national security interests with the fundamental rights and freedoms of individuals.
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