IAS Gyan

Daily News Analysis

PREVENTIVE DETENTION

6th September, 2022 Polity and Governance

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In News

  • According to the data released by the National Crime Records Bureau (NCRB), in 2021 over 1.1 lakh people were placed under preventive detention, this number is 23.7% higher compared with 2020 data.

Preventive Detention

  • Article 22 of the Indian Constitution grants protection to persons who are arrested or detained. Detention is of two types:
    • Punitive detention
    • Preventive detention
  • Punitive detention is to punish a person for an offence committed by him after trial and conviction in a court.
  • Preventive detention means the detention of a person without trial and conviction by a court.
    • Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the near future. Thus, preventive detention is only a precautionary measure and it is based on suspicion.
  • Article 22 of the Indian Constitution has two parts;
    • One Part deals with the cases of ordinary law.
    • The second part deals with the cases of preventive detention law.
  • A person who is arrested or detained under ordinary law has the following rights:
    • Right to be informed of the grounds of arrest.
    • Right to consult and be defended by a legal practitioner.
    • Right to be produced before a magistrate within 24 hours including the journey time.
    • Right to be released after 24 hours unless the magistrate authorizes further detention.
  • These above safeguards are not available to an enemy alien or a person arrested or detained under a preventive detention law.
  • Article 22 also grants protection to persons who are arrested or detained under a preventive detention law. This protection is available to both citizens as well as aliens and includes the following:
    • The detention of a person cannot exceed three months unless the advisory board reports sufficient cause for extended detention. The board is to consist of judges of a high court.
    • The grounds of detention should be conveyed to the detained person However; the facts considered to be against the public interest need not be disclosed.
    • The detained person should be allowed to make representation against the detention order.
  • The Constitution authorized 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 case under a preventive detention law.
    • Procedure to be followed by an advisory board in an inquiry.
  • The Constitution has divided the legislative power related to preventive detention between the Parliament and the state legislatures.
    • Both the Parliament and state legislatures can concurrently make a law on preventive detention.
    • The Parliament has exclusive authority to make a law of preventive detention related to defense, foreign affairs and the security of India.
    • State legislatures can 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.

 

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