Preventive detention

Preventive Detention

Constitution of India LAW EXPLAINED
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Preventive detention means detaining an individual in such a manner that, in order to deter the individual from speaking of a possible crime or, in other terms, preventive detention, it is a measure taken by the government on the basis of the assumption that the person concerned may do some wrong action which is detrimental to the State. Preventive detention is the most contentious feature of the basic rights scheme in the Indian constitutions Article 22(3) states that, if a person has been arrested or detained under a preventive detention law, the protection provided for under Article 22(1) and Article 22(2) shall not extend to that entity.

In Indian law, there is no authoritative definition of the term ‘prevention detention.’ In relation to the term Punitive, the word “preventive” is used. It is a punitive measure but it is simplistic. While the purpose of punitive detention is to punish a person for what he has already done, the purpose of pre-trial detention is not to punish a man for doing something, but to intercept him before he does it, and to prevent him from doing it. There are no crimes given so no complaints are brought. The sole justification for such detention is the suspicion or reasonable probability that the detainee will commit some act that is likely to harm society or endanger government security and not a criminal conviction that can be justified only by legal evidence.

The necessity of Such Provision –

Prevention Prison regulations are repugnant to the principles of government and are not present in any of the world’s democratic nations. No nation in the world has rendered such laws an important part of their constitution, just as India has done. In AK Gopalan v. Madras State[1] Patanjali Shastri J, justifying the importance of this clause, said: “The sinister-looking aspect is so oddly out of position in a democratic constitution that invests personal independence with the sacrosanct of a fundamental right;, And so inconsistent with the pledge of its preamble, it is certainly intended to avoid the violation of democracy by antisocial and revolutionary forces which could jeopardize the embryonic republic’s national welfare.

Preventive Detention Laws

Parliment passed the First Prevention Detention Act on 26 February 1950. The aim of the Act was to allow for detention to deter any individual from behaving in a manner that would harm the protection of India, India’s partnership with foreign powers, the welfare of India or a State or the preservation of public order, the conservation of vital supplies and services for the population.

Constitutional Safeguards against Preventive Detention laws

Various safeguards provided to the detinues under clause (4) to (7) of the article 22 may be discussed under the following heads.

  • Review by Advisory Board ­­­­­­­­­­­­­- Upon prosecution and indictment of a crime by a competent judge, a detinue in a compulsory arrest is not held. In order to provide protection against unlawful detention, clause(4) specifies that no legislation providing for preventive detention shall allow a person to be detained for a duration of more than three months unless, before the expiry of the stated three-month span, an Advisory Board consisting of persons who are, or have been, or are eligible as High Court Judges has declared that there is in its jurisdiction When the consultative board states that incarceration is not warranted, the government is required to lift the incarceration order[2].
  • Communication of grounds of detention of detenu ——-Article 22(5) provides two freedoms to the detained individual: a) the detention authority shall, as early as possible, convey to the detained person the reasons for his incarceration, that is, the reasons that lead to the detention authority ‘s subjective satisfaction. (B) grant the detained person “the earliest opportunity” to make representations against the arrest warrant, that is, to provide adequate evidence to allow him to make representations..

The detenu ‘s justification for incarceration will be very transparent and readily comprehensible. A justiciable issue is the sufficiency of the details conveyed to a detainee, the test is whether they are sufficient to allow the detainee to make an effective representation. “Message” is a powerful term. It needs adequate awareness of the fundamental facts that form the premises to be adequately and thoroughly imparted to the prisoner in writing in a language he knows in order to allow him to render a purposeful and efficient representation. If the reasons are explained to the detainee only verbally and nothing in writing is left to him in a language he understands then that purpose is not served and the constitutional mandate in Article 22(5) is infringed[3].

Lallubhai Jogi Bhai Patel v. Union of India[4], the detainee did not know the English language but the detention ground was drawn in English and the detention order claimed that, when serving the detention ground, the police inspector thoroughly clarified the detention ground in Gujarati, but no translation of the detention grounds into Gujrati was provided to the detainee. It was held that there was no enforcement with Clause 22(5), and that the arrest warrant was unconstitutional.

Grounds of Detention 

Any duty to include prisoners prior to their detention – Section 3 of the RTI Act, 2005 grants all people the right to know and Section 2(j) offers

‘Freedom to access’ includes material accessible under the Act that is owned or regulated by a public body. Pursuant to clause (5) of Article 22, arrest requirements shall be met after conviction after his incarceration. The State has no duty to supply a detainee with the grounds for incarceration prior to his arrest.

You will hold a individual already in custody- In Huidrom Konungjao Singh v. State

In Manipur[5] the appellant ‘s son was detained by police under section 302 of the IPC, interpreted in compliance with section 25(1-C) of the Arms Act. The District Magistrate, Imphal West, issued the arrest warrant under the National Security Act of 1980 on different grounds with apprehension that the accused implicated in it had been extended on bail, and in this case the arrested person would also be released on bail and engage in practices harmful to public order. Because the aforementioned bail decisions in the same case were not linked to the co-person, the person released on bail in such situations have little connection with the present case. For this situation, the detenu has not pushed the offer for parole, with no other co-accused.

The Supreme Court held- there is no prohibition in law to pass the detention order in respect of a person who is already in custody in respect of the criminal case. However, if the detention order is challenged, the detaining authority has to satisfy the court, the following facts:

  • The jurisdiction became well informed that the detenu was being kept in detention.
  • Reliable evidence existed before the authority on the grounds of which he would have cause to conclude that there was a reasonable likelihood of his release on parole and, further on, that he should not engage in actions that are harmful to public safety.
  • In the context of the aforementioned, the authority found it appropriate to prohibit him from participating in behaviors that are harmful to public safety.
  1. Detenue’s Right of Representation —- Under clause (5) of Article 22, there is no constitutional mandate to consider the representation made by the detainee before confirming the detention order and, in the absence of a statutory provision requiring consideration of the representation before confirmation of the detention order, it may be considered after confirmation of the detention order[6].
  2. The other privilege given to the detained citizen is that he will have the first chance to render a statement against the detention request. It means that the detainee must be provided with sufficient specific grounds for his detention to enable him to make a representation that can give him relief on being considered[7].

The land referred to in Article 22(5) includes all the “essential information” and resources that the detaining authority takes into consideration when creating the order of detention and on which the order of detention is then centred. Nothing less than all the basic facts and material that had influenced the detaining authority in making the detention order must be communicated to the detained person. That is the simple prerequisite of Article 22(5) for the first safeguard. The second protection provided for in Article 22(5) demands that the detained individual be granted the earliest opportunity to render claims against the detention order. No uncoordinated pause, no shortcomings in the materials communicated shall stand in the way of the detained person having an earlier, but detailed and effective representation of all the specific facts and materials communicated shall stand in the way of the detained person making an earlier, but comprehensive and effective representation of all the basic facts and materials that might have had a bearing on him. Which are the legislative protections adopted by the constitution-makers against the excessive or improper use of the considerable power of preventive detention that a Prevention Detention Law can exist in the Executive[8].


[1] AIR 1950 SC27

[2] Shibban Lal Saxena v. State of UP AIR 1954 SC 179

[3] Kubic Dariusz v Union of India(1990) 1 SCC 568

[4] (1981) 2 SCC 427

[5] AIR 2012 SC 2002

[6] KM Abdulla v. Union of India AIR 1991 SC 74

[7] Lawrence D Souza v. Bombay State, AIR 1956 SC 31

[8] Hamukh v State of Gujrat, AIR 1981 SC 28

This blog is written by Arvind Bhati, Lloyd Law College.

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