Context: Recently, Supreme Court judgement has held that preventive detention, could be used only to prevent public disorder and “State should not arbitrarily resort to ‘preventive detention’ to deal with all and sundry ‘law and order’ problems”.
Key verdict

• The bench observed that the power of the State to restrain a person without trial (preventive detention) is a necessary evil only to prevent public disorder. And that the court must ensure that the facts brought before it directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large.

It said that the State should not arbitrarily resort to preventive detention to deal with all and sundry law and order problems, which could be dealt with by the ordinary laws of the country.

• Whenever an order under a preventive detention law is challenged, one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation?
• If the answer is in the affirmative, the detention order will be illegal.

Justice Nariman said that preventive detention must fall within the four corners of Article 21 (due process of law) read with Article 22 (safeguards against arbitrary arrest and detention) and the statute in question.

• “Due Process of Law” is a doctrine that not only checks if there is a law to deprive the life and personal liberty of a person but also ensures that the law is made fair and just.
• He asserted that in a situation if the ordinary law of the land sufficient to deal with the situation, the detention order will be illegal.

Preventive detention means detaining a person so that to prevent that person from commenting on any possible crime.

• In other words, preventive detention is an action taken by the 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.

Provision of Preventive detention in India

A police officer can arrest an individual without orders from a Magistrate and without any warrant if he gets any information that such an individual can commit any offense.

• Preventive Detention Law, 1950: According to this law any person could be arrested and detained if his freedom would endanger the security of the country, foreign relations, public interests, or otherwise necessary for the country.
• Unlawful Activities Prevention Act (UAPA) 1968: Within the ambit of UAPA law the Indian State could declare any organization illegal and could imprison anyone for interrogation if the said organization or person critiqued/questioned Indian sovereignty territorially.

What is the difference between preventive detention and an arrest?

• An ‘arrest’ is done when a person is charged with a crime.
• In the case of preventive detention, a person is detained as he/she is simply restricted from doing something that might deteriorate the law-and-order situation.
• Article 22 of the Indian Constitution provides protection against arrest and detention in certain cases.

Rights of an Arrested Person in India
According to Article 22(1) and 22(2) of the Indian constitution

• A person cannot be arrested and detained without being informed why he is being arrested.
• A person who is arrested cannot be denied to be defended by a legal practitioner of his choice. This means that the arrested person has right to hire a legal practitioner to defend himself/ herself.
• Every person who has been arrested would be produced before the nearest magistrate within 24 hours.
• The custody of the detained person cannot be beyond the said period by the authority of magistrate.

Exceptions for Preventive Detention
Article 22(3) says that the above safeguards are not available to the following

• If the person is at the time being an enemy alien
• If the person is arrested under certain law made for the purpose of “Preventive Detention”

Constitutional provision

• It is extraordinary that the framers of the Indian Constitution, who suffered most because of the Preventive Detention Laws, did not hesitate to give Constitutional sanctity.
• B.R. Ambedkar was of the opinion that the freedom of the individual should not supersede the interests of the state.
• He had also stated that the independence of the country was in a state of inflancy and in order to save it, preventive detention was essential.

Issues with preventive detention

• Arbitrariness: The police determinations of whether a person poses a threat are not tested at a trial by leading evidence or examined by legally trained persons.
• Rights violation: Quiet often, there is no trial (upto 3 months), no periodic review, and no legal assistance for the detained person.
• Abuse: It does not provide any procedural protections such as to reduce detainees’ vulnerability to torture and discriminatory treatment, and to prevent officials’ misusing preventive detention for subversive activities.
• Tool for suppression: In the absence of proper safeguards, preventive detention has been misused, particularly against the Dalits and the minorities.

Upholding the Article 21

• Preventive detention must fall within the four corners of Article 21 (due process of law) read with Article 22 (safeguards against arbitrary arrest and detention) and the statute in question, Justice Nariman ruled.
• The Liberty of a citizen is a most important right won by our forefathers after long, historical, and arduous struggles.

Road Ahead

• The constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of State’s security; public order, disruption of national economic discipline, etc. They are envisaged as a necessary evil to be administered under strict constitutional restrictions.
• India is a large country and many separatist tendencies against the national security and integrity existed and existing and a strict law is required to counter the subversive activities.
• The number of persons detained in these acts is not a very large and due attention is made before preventive detention. Having such kind of acts has a restraining influence on the anti-social and subversive elements.
• The state should have very effective powers to deal with the acts in which the citizens involve in hostile activities, espionage, coercion, terrorism, etc.