POLITY

Preventive Detention

Preventive Detention: Right to Liberty vs Public Order

Context:

● Recently, the Supreme court ruled that the provision for preventive detention cannot be invoked over apprehension of law and order problems and said a person can be detained only in cases where public order is directly affected.

● The court quashed an order passed by the Telangana government to detain an alleged habitual fraudster on the ground that he was likely to cheat more members of the public if allowed to move freely.

Probable Question:

Preventive detention laws are prone to abuse. Critically examine with reference to safeguards the Right to Liberty of citizens.

Supreme court observation:

● Differentiating between the law and order and public order, the court said that "law and order" comprehend disorders of less gravity than those affecting "public order", which affects the larger public, leading to harm, danger or alarm or feeling of insecurity.

● The court held that there can be no doubt that for ‘public order’ to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects ‘law and order’ but before it can be said to affect public order, it must affect the community or the public at large.

Constitutional provision related to Preventive Detention:

Article 22: Protection against arbitrary arrest and detention

Article 22 envisages protection to persons under both kinds of detention namely, punitive and preventive.

Punitive detention: to punish a person after conviction for an offence in a court.

Preventive detention: Detention of a person lacking trial and conviction by a court. i.e. to prevent a person from committing a crime in the future.

After an individual has been arrested, this right comes into play. It is not a fundamental right to be free of detention and arrest; rather, the objective of this right is to avoid arbitrary detention and arrest.

The article provides the following safeguards:

Article 22(1): Any person detained must be told of the reason for his detention. Furthermore, he cannot be refused the right to speak with an attorney.

Supreme Court in Joginder Kumar Vs. State of Uttar Pradesh 1994 case entailed informing the arrested person and its ground for his arrest.

Article 22(2): Within 24 hours of his detention, the accused person should be produced before a judicial magistrate.

Article 22(3): No person who has been detained can be held in custody for longer than the judicial magistrate has decided.

These safeguards are, however, not applicable to:

Enemy aliens.

People arrested under preventive detention laws.

Safeguards against preventive detention:

If the detention lasts more than three months, the case must be brought to the attention of an advisory board, which may include a High Court judge.

The detention should be extended only if the advisory board believes there are appropriate grounds for further detention.

Detention grounds must be conveyed to the detenu.

Detenu must be given the opportunity to make a representation against the detention order.

With respect to preventive detention, the Constitution splits legislative authority between the Parliament and state legislatures. The Parliament has supreme authority to enact preventive detention legislation for reasons relevant to India's defence, foreign relations and security.

Both the Parliament and state legislatures have the power to enact preventive detention legislation for reasons related to the security of the state, the preservation of public order and the provision of necessary supplies and services to the community

Criticism:

Against Rule of law : It is against the Rule of Law

Denial of right to liberty: Liberty of a citizen is a most important right won by our forefathers after long, historical and arduous struggles. If the power of preventive detention is not narrowed down to limits, the right to liberty will become nugatory (of no value or importance).

Chilling effect on freedom of speech and expression :

➢ Detaining someone without trial might seem justifiable when there are threats to national security. By using notions, like public order, Preventive detention laws become prone to abuse. For instance, the National Security Act is used to arrest journalists critical of public figures.

➢ Preventive dentations are often used in tandem with the regular criminal law to keep persons in custody for longer, with fewer questions asked.

➢ The Preventive detention regime’s sanction for arrest and detention for up to three months, without periodic review and no judicial oversight, violates the liberty of the person.

Way forward:

● Although Article 22(3)(b) of the Constitution of India permits preventive detention, the power of preventive detention must be confined within very narrow limits otherwise, it will takeaway the right to liberty guaranteed by Article 21 of the Constitution of India.

● Although the Supreme Court has in the past upheld them as constitutional, the immense powers granted to the state under preventive detention laws-and the ensuing suspension of the rights of detainees-continue to give rise to legitimate fears that these laws stifle civil liberties and lead to targeting of political and ideological opponents.

● In Maneka Gandhi (1978), Justice Krishna Iyer, in a pioneering judgment, had remarked: "Lawful illegality becomes the rule if lawless legislation is not removed." Every misuse of preventive detention laws makes an even stronger case for their critical re-examination.