Preventive Detention

 

PREVENTIVE DETENTION 

What is preventive detention? 
Preventive detention means to detain a person so that to prevent that person from commenting on any possible crime or in other words it is an action taken by administration on the grounds of the suspicion that some wrong actions may be done by the person concerned which will be prejudicial to the state. Article 22(3) provides that if a person who has been arrested or detained under preventive detention laws the protection under against arrest or detention provided under article 22(1) and 22(2) shall not be available to that person.

What are the Objectives of Preventive Detention?
The main objective of this is not to punish the detainee but to prevent him/her from doing something that would be prejudicial to the state and/or commission of certain affairs. It comes within any of the ground specified like

1. Security of the state,
2. Public order,
3.  Foreign affairs,
4.  Service essential to the community.

A person may be detained without trial only on any or some of the above grounds. But a detainee under preventive detention doesn’t has right to personal liberty guaranteed under Article 19 and Article 21.

What are the measures provided to Safeguard misuse of Preventive Detention?

1. Any suspected person can be taken into preventive custody for only 3 months at the first time. When a period of detention exceeds that period of time, a case must be referred to an advisory board consisting of a person with qualifications for appointment as High Courts judges. Only on the approval of the Advisory Board, a period of detention may be extended beyond 3 months.
2.  A detainee must be enlightened about the grounds of his detention. But when grounds of detention are in public interest, state may refuse to divulge the same. Needless to say, this power conferred on the state leaves scope for arbitrary action on the part of the authorities.
3.  A detainee must be given earliest opportunities for making representation against their detention like legally challenging.

These safeguards of preventive detention is basically not a denial of liberty. But these safeguards are not available to enemy aliens.

Why is Preventive Detention in India, a Constitutional Tyranny? (Drawbacks)

In accordance to Article 22, preventive detention afflicts personal liberties. It also contravenes with international standards. As per Article 4 of the International Covenant on Civil and Political Rights (ICCPR) India has agreed of permitting exemption to certain personal liberties understanding the State of emergency.

But for how long preventive detention remains in Indian Constitution, it is necessary that its use is confined to be specified, limited circumstances and include adequate safeguards to protect the fundamental rights of detainees. Particular procedural protections are must needed, such as,

• to reduce vulnerability of detainees to torture and discriminatory treatment
• to prevent officials from misusing preventive detention to punish dissent from Government
• to prevent government prosecutors from unnecessarily undermining the criminal process.

To work on the above mentioned, SAHRDC made the few of the recommendations to the NCRWC. They are,

1.  Deleting entry 3 of List III from Constitution, which says, parliament and state legislatures can pass preventive detention laws in times of peace for maintaining public order or supply and services essential in the community.
2. If preventive detention is to be remain in Constitution, then there must be quite few specifying and stringent criteria limiting the powers that leads to misuse of this very law and allow meaningful judicial review of authorities action.
3. As per Article 22 (2) an arrested person should be produced before a magistrate within 24 hours of arrest. However, Article 22 (3) (b) excepts preventive detention of detainees from Clause (2) and, as a matter of consequence, it should be revoked in the interest of human rights. Currently, detainees held under preventive detention laws can be kept in detention without any review for up to three months, such a long period in custody especially gives the real threat of torture. To overcome this, Government should should bring in Section 3 of the 44th Amendment Act, 1978 into enforcement. This could reduce the detention period up to 2 months. Although, it’s still a violation of international human rights but it can significantly reduces the chances of torture.
4. Basically, the absence of judicial procedures, is in direct contravention of international human rights law including ICCPR violating the detainees’ right to appear before an “independent and impartial tribunal. Hence, the Constitution should be amended to include transparent criteria for officials and detainee for judicial review.
5. However Constitution says, the Advisory Board must be consulted for the continuation of detention period over 3 months by detaining authority. It also doesn’t provides any consideration of case for more than once. Therefore, Constitution must mandate consequent review of the terms and conditions of detention.
6. Detainees must be given detailed information about their arrest. But as if now, detaining authorities only communicate about grounds on detention. Article 9 (2) of the ICCPR provides that “anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him”. And they must be given an amount of time to learn and communicate about the grounds of their detention and challenge legally.
7.  Anybody under preventive detention should be given a right to legal counsel and other necessary procedures under Articles 21, 22(1) and 22(2) of Constitution.
8. Except during public emergencies, an individual could get a compensation for unlawful detention under Article 9(5) of the ICCPR. But a similar provision giving a right to compensation is included in Section 38 of Prevention of Terrorism Bill of 2000. On this provision, Government should consider to withdraw its reservation of Article 9 (5) of the ICCPR and Include a Constitutional  provision guaranteeing rightful compensation.

Lastly, the preventive detention act is necessary for executive, which authorises them to arrest any person from whom reasonable suspicious arises that a person can commit any congizable offence or his activities are prejudicial to law and order to state and the police can arrest the person without warrant.

 

Sources and references:

http://www.legalserviceindia.com/legal/article-751-preventive-detention.html

-Kavya Kalepalli.