Daily News Analysis

Preventive Detention

12th July, 2021 Polity


  • Former top officials have asked an end to the “misuse” of the “draconian” preventive detention law, the National Security Act.

Constitutional Provisions for preventive detention:

  • Article 22(3) provides that if the person who has been arrested or detained under preventive detention laws then the protection against arrest and detention provided under article22 (1) and22 (2) shall not be available to that person.
  • A person may be taken to preventive custody only for 3 months at the first instance. If the period of detention is extended beyond 3 months, the case must be referred to an Advisory Board consisting of persons with qualifications for appointment as judges of High Courts.
  • The detainee is entitled to know the grounds of his detention. The state, however, may refuse to divulge the grounds of detention if it is in the public interest to do so. Needless to say, this power conferred on the state leaves scope for arbitrary action on the part of the authorities.
  • The detaining authorities must give the detainee earliest opportunities for making representation against the detention.

About preventive detention:

  • Under these laws, executive officers such as District Magistrates and Commissioners of Police are empowered to pass orders for arrest and to take persons into custody.

Laws on Preventive detention:

Maintenance of Internal Security Act (MISA): It gave the State apparatus the right to arrest and detain a citizen for up to one year without due judicial process.

National Security Act : This act empowers the Central Government and State Governments to detain a person to prevent him/her from acting in any manner prejudicial to the security of India, the relations of India with foreign countries, the maintenance of public order, or the maintenance of supplies and services essential to the community it is necessary so to do. The act also gives power to the governments to detain a foreigner in a view to regulate his presence or expel from the country.

COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling Activities Act): It is an Act of Parliament passed in 1974 during administration of Indira Gandhi, trying to retain foreign currency and prevent smuggling.

Objective of the Preventive Detention:

The objective of Preventive Detention is not to Punish but to prevent the detenu from doing something, which is prejudicial to the State. The satisfaction of the concerned authority is a subjective satisfaction in such a manner. It comes within any of the grounds specified like

  • Security of the State,
  • Public Order,
  • Foreign affairs,
  • Services essential to the community.

Supreme court judgement on preventive law:

Ahmed Noor Mohamad Bhatti V. State of Gujarat, AIR 2005:

  • While upholding the validity of the power of the Police under section 151 of the Criminal Procedure Code 1973 to arrest and detention of a person without a warrant to prevent the commission of a Cognizable offense ruled that a provision could not be held to be unreasonable as arbitrary and therefore unconstitutional merely because the Police official might abuse his authority.
  • Preventive detention act is a necessary tool in the hands of the executive which authorizes them to arrest any person from whom reasonable suspicious arises that he can commit any cognizable offense or his activities are prejudicial to law and order to state and the police can arrest that person without warrant.

Issues with Preventive detention:

  • Preventive detention processes come without many of the hallmarks of procedural fairness that we take for granted in regular criminal law.
  • While all arrests and detentions under preventive detention laws do undergo some subsequent checks, this scrutiny remains almost exclusively executive-based.
  • There is no judicial oversight where detention beyond three months is not sought.
  • No publicly available orders or judgments are published about the ultimate decision.
  • There is no right to legal assistance for detenues.
  • The legal framework governing this preventive project comes along with reduced procedural compliances and quick outcomes only makes preventive detention laws more tantalising for security-minded officers.
  • It has been exercised arbitrarily by executive.
  • HARASSMENT OF ORDINARY PEOPLE: It is a source of harassment for ordinary people, as they can be detained even for a year even without any consular access being provided to them.
  • BREACH OF RIGHTS: It leads to breaching of rights of the people who are illegitimately detained either due to political reasons or due to any other reason.
  • DRACONIAN NATURE: The law by its very nature is draconian in nature and empowers the police to run as per its whims and fancies.