Context: As Telangana gears up for Assembly polls, its stringent preventive detention law is under the spotlight because, in at least three separate instances, the Supreme Court has red-flagged the Telangana government’s use of the law.
What is preventive detention?
Preventive detention means the detention of a person by the state without trial and conviction by a court, but merely on suspicion. The detention could be up to a year unless extended.
How is it different from A pre-trial detention?
Pre-trial detention is very different from preventive detention. While the former is an undertrial accused of a crime, a detainee can be taken into custody as a preventive measure, even if he has not committed a crime.
Practices in other countries in comparison to India :
- Preventive detention is a wartime measure in countries such as the UK and the USA. In India, the Constitution itself makes space for preventive detention.
Part III – Fundamental Rights:
- Part III of the Indian Constitution gives the state the power to suspend these rights for preventive detention.
- Despite its emphasis on individual liberty, Part III, which forms the basic structure of the Constitution that cannot be amended, also contains provisions for preventive detention under Article 22.
Under what laws can the state order preventive detention?
As many as 25 states also have preventive detention legislation, like
- The Telangana law, which is called The Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, (PD Act), 1986.
- The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Trafficking Offenders and Slum Grabbers Act, 1982; the Gujarat Prevention of Antisocial Activities Act, 1985; the Bihar Control of Crimes Act, 1981, etc.
What are the powers of the state?
Article 22 prescribes protection against arrest and detention.
- Article 22(4)(7) deals with how preventive detention is operationalised.
- First, the district magistrate (on behalf of the state) would issue an order to detain a person when it is necessary to maintain “public order.” The state can delegate this power to the police as well.
- If the detention ordered is for more than three months, under Article 22(4), such detention needs the approval of the Advisory Board. States set up these Boards and generally consist of retired judges and bureaucrats.
- The grounds for detention must be communicated in one instalment, and the state cannot then add fresh, new, or additional grounds to strengthen its original detention order.
- The grounds must be read in a language that the detainee understands.
- A detainee is generally not allowed legal representation before the board. If the board confirms the detention, the detainee can move to Court challenging the detention order.
- Article 22(5) of the Indian Constitution mandates that the state is required “as soon as may be” to communicate to the detainee the grounds of detention and ‘shall provide him/her the earliest opportunity of making a representation against the order.’
Exception in law:
- Article 22 (3) (b) states that none of those safeguards apply ‘to any person who is arrested /detained under any law providing for preventive detention.’
- However, even this safeguard is diluted to a certain extent by Article 22(6), which says that nothing in Clause 5 shall require the state to disclose facts that the state considers to be “against the public interest to disclose.”
How do courts assess the detention orders?
For preventive detention, there are very narrow grounds for judicial review because the Constitution emphasises the state’s “subjective satisfaction” when ordering a detention.
The touchstone on which the order is examined is this subjective opinion of the state rather than the fundamental rights enshrined in the Constitution. When the Court cannot substitute the subjective satisfaction of the state with its own satisfaction, it essentially means that it cannot check the trueness of the grounds of detention.
The scope of judicial review is also very narrow, as courts often strike down detention orders on technical grounds, such as delay in the advisory board’s decision, communication of grounds in a timely fashion and in a language that the detainee understands, etc.