Preventive Detention UPSC

The ruling came in response to a preventive detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, 1974, upheld by the Kerala high court.

What are the New Standards for Preventive Detention?

Fair and Effective Opportunity: SC held that the detaining authority must provide the detainee with copies of all documents relied upon for detention, and failure to do so invalidates the detention.
Constitutional Right: SC stressed that personal liberty is a paramount constitutional right. Failure to provide all relevant documents and information to challenge the detention effectively would constitute a violation of the fundamental right under Article 22(5) of the Constitution.
Non-arbitrary Actions: Authorities are required to guard against arbitrary actions and ensure detainees rights are respected at all stages.
- It includes furnishing documents in a language the detainee can understand.
Avoiding Undue Delay: Authorities must ensure timely communication related to detention, using available technology to avoid unnecessary delays.

What are the Key Facts About Protection Against Arrest and Detention?

Constitutional Basis: Article 22 of the Indian Constitution grants protections to individuals who are arrested or detained.

These provisions ensure fundamental rights are protected under different circumstances of arrest or detention.

Types of Detention: There are two types of detention.

Punitive Detention: Punishes a person after trial and conviction in court for an offence they committed. It follows due process of law.
Preventive Detention: Involves detaining a person without trial or conviction, aiming to prevent a future offence. This detention is based on suspicion and serves as a precautionary measure to avoid potential harm.

Parts of Article 22: There are two parts of Article 22.

First Part: The first part deals with rights under ordinary law i.e., laws not related to preventive detention. Rights include (Except enemy aliens or individuals detained under preventive detention laws).

Right to be Informed: A person must be told the grounds of their arrest.
Right to Legal Representation: The arrested individual has the right to consult and be defended by a legal practitioner
Right to Prompt Judicial Review: They must be presented before a magistrate within 24 hours of arrest.
Right against Prolonged Detention: They must be released after 24 hours unless a magistrate authorises further detention.

Second Part: It deals specifically with protections under preventive detention laws, which apply to both citizens and non-citizens.

Maximum Detention without Review: The detention of a person cannot exceed three months unless the advisory board reports suffcient cause for extended detention. The board is to consist of judges of a high court.
Communication of Detention Grounds: The grounds of detention should be communicated to the detenu. However, the facts considered to be against the public interest need not be disclosed.
Right to Representation: The detenu should be afforded an opportunity to make representation against the detention order.

Legislative Power on Preventive Detention: The Parliament has exclusive authority to make a law of preventive detention for reasons connected with defence, foreign affairs and the security of India.

Both the Parliament as well as the state legislatures can concurrently make a law of preventive detention for reasons connected with the security of a state, the maintenance of public order and the maintenance of supplies and services essential to the community.

Parliament’s Power to Extend Detention: Article 22 authorises the Parliament to prescribe:

the circumstances and the classes of cases in which a person can be detained for more than three months under a preventive detention law without obtaining the opinion of an advisory board;
the maximum period for which a person can be detained in any classes of cases under a preventive detention law; and
the procedure to be followed by an advisory board in an inquiry.

Key Amendments: The 44th Amendment Act, 1978 has reduced the period of detention without obtaining the opinion of an advisory board from three to two months.

Preventive Detention Laws in India: Several preventive detention laws have been enacted by Parliament to maintain national security, and public order, and prevent crimes. Examples.

Maintenance of Internal Security Act (MISA), 1971 (Repealed in 1978)
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974.
National Security Act (NSA), 1980.
Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985 (Repealed in 1995).
Prevention of Terrorism Act (POTA), 2002 (Repealed in 2004).
Unlawful Activities (Prevention) Act (UAPA), 1967 (Amended several times, including in 2004, 2008, 2012, and 2019).

Criticism of Preventive Detention in India: No democratic country in the world has made preventive detention an integral part of the Constitution as has been done in India.

It is unknown in the United States
It was used in Britain only during the First and Second World Wars.
In India, preventive detention existed even during British rule. For example, the Bengal State Prisoners Regulation, 1818 and the Defence of India Act, 1939 provided for preventive detention.

What are the Issues with the Preventive Detention Law?

Misuse of Law: Preventive detention coexists with fundamental rights in the Indian Constitution, but its misuse for political gains or controlling free speech has raised concerns.

Lack of Checks and Balances: The broad powers to detain with limited judicial oversight raise the risk of misuse of authority.

Lack of Transparency: The frequent use of detention to curb dissent shows a need for greater accountability in its application.

Colonial-Era Laws: Some preventive detention laws date back to colonial times and do not align with modern human rights standards.

Conclusion

Preventive detention, while constitutionally permitted in India, is often seen as a challenge to democratic principles and personal liberty. Though vital for national security, unchecked powers can infringe on fundamental rights, especially the right to life and liberty. Reforms are essential to balance security with human rights, ensure fair process, and prevent abuse. A comprehensive review and modernization of colonial-era laws are necessary to make preventive detention just and reasonable in contemporary India.

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