Simone Lawson
Preventive detention is a legal provision in India that allows authorities to detain individuals without a trial or conviction by a court. It is based on the suspicion that the individual may commit a criminal act or cause harm to society. The laws regulating preventive detention in India have been criticised for their lack of protection for citizens and their incompatibility with democratic values. Despite this, preventive detention laws have been a part of India's legal system since the colonial era and continue to be used today, with various laws authorising preventive detention for up to 12 months without formal charges. This introduction will explore the history, legal basis, and implications of preventive detention in India, as well as its place within the country's democratic framework.
Characteristics and Values of Preventive Detention in the Indian Constitution
| Characteristics | Values |
|---|---|
| Legal basis | Preventive Detention Act, 1950 |
| Constitutional basis | Article 22 of the Indian Constitution |
| Nature | Detention without trial or conviction |
| Purpose | Preventing individuals from committing offences, maintaining public order, and protecting national security |
| Authority | Designated authority or government official |
| Duration | Up to three months, extendable with Advisory Board approval |
| Rights of detainees | Entitled to know the grounds of detention, right to representation, and periodic review |
| Criticism | Concerns about protection of citizens' rights and lack of safeguards |
| Notable cases | AK Gopalan vs The State of Madras, Ameena Begum Case (2023), Jasleela Shaji v. The Union of India & Ors. (2023) |
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What You'll Learn
Preventive detention laws in India
Preventive detention laws are enacted by the government to detain individuals without a trial or conviction by a court. Under these laws, authorities can detain an individual for a specified period, typically up to 12 months, without presenting formal charges or conducting a trial. The National Security Act (NSA) of 1980, the Unlawful Activities (Prevention) Act (UAPA) of 1967, and state-specific laws like the Maintenance of Internal Security Act (MISA) and the Public Safety Acts (PSA) in certain states are examples of such laws in India.
Article 22 of the Indian Constitution grants protection to individuals who are arrested or detained. It has two parts: the first part deals with cases of ordinary law, where an individual is detained as part of a criminal investigation; the second part deals with cases of preventive detention law. Under Article 22(4) of the Indian Constitution, no law providing for preventive detention shall authorise the detention of a person for more than three months unless an Advisory Board reports sufficient cause for extended detention. The Advisory Board is typically composed of individuals who are or have been, or are qualified to be, judges of a High Court. The detainee has the right to know the grounds for their arrest, but the state may refuse to disclose this information if it is deemed unfit or not in the public interest.
The laws of preventive detention have been criticised for providing limited safeguards to detainees, potentially violating fundamental human rights. The European Court of Human Rights has concluded that preventative detention, as defined by the Indian Constitution, is unconstitutional under the European Convention on Human Rights. Additionally, detainees are denied the right to legal counsel, cross-examination, timely or periodic review, access to courts, or compensation for wrongful arrest or imprisonment.
In the case of AK Gopalan vs The State of Madras, the validity of the Preventive Detention Act, 1950, was challenged, and the Supreme Court took a limited view of Articles 21 and 22. In another case, Jasleela Shaji v. The Union of India & Ors., the Supreme Court held that the right provided under Article 22(5) of the Constitution is to give the detainee the earliest opportunity to make a representation against the order of detention.
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Article 22 of the Indian Constitution
The first part of Article 22 grants specific rights to individuals under punitive detention, which is the detention of a person after trial and conviction to punish them for an offence they have committed. These rights include:
- The right to be informed of the grounds of arrest
- The right to consult a lawyer of their own choice
- The right to be produced before the nearest magistrate within 24 hours of their arrest (excluding holidays and travel time)
The second part of Article 22 deals with preventive detention, which is the detention of a person without trial for a limited period when the state suspects that they are likely to commit a crime or pose a threat to national security. Preventive detention laws are unique in that they allow for the imprisonment of an individual before they have committed a crime, based solely on the suspicion that they will engage in criminal activity or disrupt public order. This type of detention can be used indefinitely, even in times of peace and non-emergency situations, and detainees are denied certain legal rights, such as the right to legal counsel and access to courts.
It is important to note that Article 22 provides certain exceptions during times of emergency, such as when the President of India proclaims a state of emergency. In these circumstances, some restrictions may be imposed on the rights and safeguards typically afforded under Article 22.
The validity of preventive detention laws has been a subject of debate and criticism. While these laws are intended to maintain national security, they have also raised concerns about the protection of citizens' fundamental human rights. Critics argue that preventive detention provisions lack essential safety measures recognised in other countries to safeguard basic human rights.
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Preventive detention vs. ordinary law
Preventive detention is a feature of the Indian Constitution that allows authorities to imprison individuals to prevent them from committing offences, rather than as a result of having committed them. It is a measure to maintain public order or national security.
Preventive detention is an extraordinary power, as it allows the state to imprison individuals without the usual protections of ordinary law. Under ordinary law, a person has the right to know the grounds for their arrest, to consult a lawyer, and to be produced before a magistrate within 24 hours. They are also entitled to legal representation and a fair trial. These rights are protected under Article 21 of the Indian Constitution, which guarantees life with dignity as a fundamental right.
In contrast, preventive detention laws allow the state to hold individuals without these ordinary rights. Under Article 22, detainees are denied the right to legal counsel, cross-examination, timely or periodic review, access to the courts, or compensation for wrongful imprisonment. They can be held without accusation or trial for up to three months, and this period can be extended if an advisory board finds "sufficient cause".
The Indian Constitution's inclusion of preventive detention is surprising given that its framers had suffered under similar laws during colonial rule. The laws have been criticised for lacking essential safety measures to protect basic human rights. The Supreme Court of India has stated that preventive detention is "repugnant to democratic ideas and abhorrent to the rule of law".
Despite these concerns, the Indian Constitution provides for preventive detention in times of peace, which is unusual among democratic nations. The Indian state has broad powers to make and enforce preventive detention laws, and critics argue that this can result in violations of citizens' fundamental rights.
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Rights of persons in preventive detention
Preventive detention in India is a controversial practice that allows the imprisonment of a person based on the suspicion that they will commit a criminal act or cause harm to society. This means that a person can be detained before they commit a crime, which is a significant departure from the usual practice of imprisoning someone after they have committed a crime. The laws regulating preventive detention in India have been criticised for not providing the same protections that are considered necessary in other countries to safeguard fundamental human rights.
Despite the concerns, the Indian Constitution provides for preventive detention under Article 22, which offers certain safeguards for persons detained under such laws. These rights include:
- The right to know the grounds for their arrest and detention. While the State may refuse to disclose the grounds if it deems it fit in the public interest, the person must be informed of the reasons for their arrest to enable them to effectively exercise their legal rights.
- The right to challenge the order of detention. The person being detained must be given the earliest opportunity to question and challenge the detention.
- Protection against arbitrary arrest and detention. Article 22 safeguards individuals from being arrested or detained without being informed of the grounds for such action.
- The right to be presented before a magistrate. Article 22 guarantees that an arrested person must be produced before the nearest magistrate within 24 hours of their arrest, excluding the time necessary for the journey from the place of arrest to the court.
- The right to legal representation. Article 22 ensures that individuals have proper legal representation during the process of arrest and detention.
It is important to note that the maximum period for preventive detention under Article 22 is three months, although this can be extended to six months or even twelve months with the recommendation of an advisory board. The advisory board is typically composed of serving or eligible High Court judges.
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Preventive detention and human rights
Preventive detention in India is a remnant of British colonial rule, with laws such as the Defence of India Act, 1939, and the Preventive Detention Act of 1950. The latter was challenged in the case of AK Gopalan vs The State of Madras, where the validity of preventive detention was questioned on the grounds of violating fundamental rights under the Constitution. The Supreme Court held that the Preventive Detention Act was intra vires the Constitution, except for Section 14, which was deemed illegal.
Preventive detention is the imprisonment of an individual based on the suspicion that they will commit a criminal act or harm society. It is a measure to prevent any prejudicial actions towards the state and is not intended to be punitive. However, critics argue that the provisions for preventive detention in India lack essential safety measures recognised in other countries to protect fundamental human rights. For instance, the European Court of Human Rights has deemed preventative detention, as defined by the Indian Constitution, to be unconstitutional under the European Convention on Human Rights.
Article 22 of the Indian Constitution provides certain safeguards for individuals detained under a Preventive Detention Law. It ensures that a person must be informed of the grounds for their arrest and has the right to consult a legal practitioner of their choice. It also guarantees that the arrested person must be presented before the nearest magistrate within 24 hours of their arrest. However, preventive detention laws allow for detention without a warrant or a magistrate's authorisation, and detainees are denied the right to legal counsel, cross-examination, timely review, and access to courts.
The maximum period for preventive detention in India is three months, although this can be extended by the Advisory Board if there is a "Sufficient Cause". The Advisory Board is composed of individuals who are or have been qualified to be Judges of a High Court. The 44th Constitutional Amendment Act of 1978 proposed to reduce the maximum period of detention without board approval from three months to two, but this change has not yet been implemented.
The use of preventive detention has raised concerns about protecting citizens' rights, as mentioned under Article 22, and the freedom of individuals detained based on mere suspicion. The National Human Rights Commission of India has laid down several measures and directives to prevent the inhuman treatment of prisoners and restrict preventive detention. Additionally, the Supreme Court has issued guidelines to be followed in all cases of arrest and detention to safeguard individuals in custody.
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Frequently asked questions
Preventive detention is the imprisonment of an individual without a trial or conviction by a court, based on the suspicion that they will commit a criminal act or to maintain public order.
Preventive detention in India is provided for in Article 22 of the Indian Constitution, which has two parts. The first deals with arrests and detentions made under ordinary laws, while the second deals with cases of detention under preventive detention laws.
Individuals detained under preventive detention laws in India have the right to know the grounds for their arrest, although the state may refuse to disclose this information if it is deemed to be in the public interest. They must also be given the earliest opportunity to question and challenge the detention.
Preventive detention laws in India have been criticised for not providing the same protections for fundamental human rights as are recognised elsewhere. For example, detainees are denied the right to legal counsel, cross-examination, timely or periodic review, access to the courts, or compensation for wrongful arrest or imprisonment.
The maximum period for preventive detention in India is three months, after which an Advisory Board must give an opinion stating "sufficient cause" for extended detention.
