Context
Recently, Supreme Court in the Nenavath Bujji vs State of Telangana and ors observed that Inability Of State’s Police Machinery To Tackle Law & Order Situation should not be an excuse to Invoke power Of Preventive Detention.
Preventive Detention Can’t be Misused for Law & Order Issue
- Observation on Telangana Prevention of Dangerous Activities Act of 1986 : SC observed that mere registration of the two FIRs for the alleged offences of robbery etc. could not have been made the basis to invoke the provisions of the Act 1986 for the purpose of preventive detention.
- Consideration by the Advisory Board: The SC bench led by CJI further said that the “The Advisory Board must consider whether the detention is necessary not just in the eyes of the detaining authority but also in the eyes of law.
- Ameena Begum v. The State of Telangana & Ors: In that case supreme court has established a set of principles that should be adhered to by the courts while Evaluating the legality of preventive detention orders.
What is Preventive Detention?
- It means detention of a person without trial & Conviction by a Court on mere reasonable suspicion of him doing activity dangerous to public order.
| Data Point: NCRB data shows that out of the total 1,48,20,298 arrests made in 2021, 89,00,174 (60.5%) were made under the preventive arrests provisions of section 151 of CrPC (now section 170 of BNSS). |
- In India, preventive detention is regulated by a variety of laws and regulations that authorize the government to detain individuals preventively.
- Both Parliament & State legislatures have authority to make law of Preventive Detention.
- Parliament has exclusive control over National security, Defense & Foreign affairs while Both Parliament & State legislature can make law for the maintenance of security of state & Public Order.
- Laws made by the Parliament for the Preventive Detention :
- Unique Constitutional Provision: No democratic country in the world has made preventive detention as an integral part of the Constitution as has been done in India.
- Article 22(3)(b): It permits preventative detention in order to maintain public order and security of the state .
- Article 22(4): No person can be detained for more than a period of 3 months unless an advisory board confirms that there is a sufficient cause in the event of an extended extension.
- Advisory Board comprises any person who have been or qualified to be appointed as judge of the High Court.
- Extended Preventive Detention: Article 22(7) also authorizes the Parliament to prescribe circumstances & 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.
- Maximum period for which a person can be detained under a preventive detention law;
- Procedure to be followed by an advisory board.
Preventive Detention Vs Punitive Detention
| Preventive Detention |
Punitive Detention |
| The detainee should be informed of the grounds for their detention. Nevertheless, information deemed detrimental to the public interest does not need to be divulged. |
Right to be informed of the grounds of arrest. |
| The detainee should be given a chance to present their case against the detention order. |
Right to consult & to be defended by a legal practitioner. |
| Safeguards are available to both citizens as well as aliens. |
Safeguards are not available to an enemy alien. |
Judgment related to Preventive Detention:
- AK Gopalan Vs State of Madras (1950) : The apex court gave a green flag to Preventive Detention Act,1950 & court ruled that article 22 provides complete procedural safeguards with regard to preventative detention.
- Khudiram Das v. State of WestBengal (1975): The Supreme court observed that power of detention is clearly a preventive measure & it should not be taken in any manner of the nature of punishment.
- Ankul Chandra Pradhan Vs. Union of India : The object of Preventive Detention is not to Punish but to intercept to prevent the Detenu from doing something prejudicial to the State.
- Amed Noor Mohammad Bhatti V. State of Gujarat,2005 : This preventive detention act is a necessary tool in the hands of the executive which authorizes them to arrest any person from whom reasonable suspicion 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.
- Shaikh Nazneen V. The state of Telangana, 2022 : In that Case supreme court opined that Preventive detention can not be used to counter ordinary law & order situations. It is an “Exceptional Power” of the state which affects the personal liberty of the individual & has to be employed sparingly.
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Concerns Regarding Preventive Detention
- Human Right Violation: It fails to offer procedural safeguards aimed at diminishing detainees’ susceptibility to torture and discriminatory treatment, as well as preventing officials from exploiting preventive detention for subversive purposes.
- Arbitrary Use: Governments occasionally resort to employing these laws outside the realm of judicial oversight. & There is a persistent apprehension regarding the arbitrary nature of detentions.
- Contrary to legal rights: According to Section 50 of the Criminal Procedure Code (CRPC), any individual subjected to arrest must be informed of the grounds for their arrest and be afforded the opportunity for bail. Nevertheless, in practical terms, obtaining bail is seldom a straightforward endeavor.
- Not Practiced in other Democratic Countries & against the International Covenants on Civil & Political Right which talks about personal liberties.
Way Ahead
- Stringent Enforcement of Procedural Safeguards: The Supreme Court has emphasized the necessity for rigorous scrutiny of preventive detention laws to prevent their misuse.
Telangana Act of 1986: Establishment of Advisory Boards under Section 9:
- Whenever deemed necessary, the Government shall establish one or more Advisory Boards in accordance with this Act.
- Each Board shall comprise a Chairman and two additional members, who either currently serve as Judges, have prior judicial experience, or meet the qualifications for appointment as Judges of a High Court.
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- Balance Security & Human Rights: Preventive detention must be utilized with careful consideration of the delicate equilibrium between social security & personal freedom.
- Ensure Rights of Detenu & Inform Reason for Detention : Procedural guidelines must be enforced so detenu can use them accordingly.
- Transparent Investigation & Adequate Compensation should be enforced.
Also Read: Supreme Court Regional Benches
March 28, 2024
