Preventive detention

Preventive detention is a legal measure that allows the state to detain a person without trial for a specified period, not as punishment for a past offence but to prevent potential threats to public order, national security, or essential community interests. Unlike punitive detention, which follows a judicial process after a proven offence, preventive detention is based on the anticipation that the person’s actions may endanger peace, safety, or governance in the future.
It is one of the most controversial yet constitutionally recognised features of governance in several democratic countries, including India.

Definition

Preventive detention refers to the detention of an individual by the executive or administrative authority to prevent them from committing possible offences or engaging in activities deemed harmful to the state or society. It involves pre-emptive restraint, justified on grounds of maintaining law and order, public safety, or security of the nation.
In simpler terms, preventive detention means “confining a person not for what he has done, but for what he is likely to do.”

Nature and Purpose

The primary purpose of preventive detention is preventive rather than punitive. It is intended to:

• Prevent acts that may disturb public order or security of the state.
• Stop individuals from engaging in espionage, smuggling, terrorism, or subversive activities.
• Maintain peace and stability in situations of emergency or unrest.

However, because it allows deprivation of personal liberty without trial, it must be used sparingly and with strict procedural safeguards.

Preventive Detention in India

In India, preventive detention has both constitutional and statutory backing. It was first introduced by the British under colonial rule and later incorporated into the Indian legal framework after independence, with certain restrictions to prevent misuse.

Constitutional Provisions

Article 22(3) to 22(7) of the Constitution of India provide for preventive detention. Article 22 guarantees protection for individuals in matters of arrest and detention but makes an exception for preventive detention laws.

• Article 22(4): No law shall authorise detention for more than three months unless approved by an Advisory Board of judges.
• Article 22(5): The detainee must be informed of the reasons for detention and allowed to make a representation against it.
• Article 22(7): Parliament may by law prescribe circumstances and maximum periods for which a person may be detained.

Statutory Laws

Several preventive detention laws have been enacted under these provisions, including:

• National Security Act (NSA), 1980: Allows detention up to 12 months to prevent acts prejudicial to national security or public order.
• Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, 1974: Aims to curb smuggling and foreign exchange violations.
• Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980: Used to ensure availability of essential goods.
• Unlawful Activities (Prevention) Act (UAPA), 1967: Deals with terrorism and unlawful associations.

State governments also have similar laws under concurrent legislative powers.

Safeguards Against Misuse

Given its exceptional nature, preventive detention is subject to constitutional safeguards to balance individual liberty with public security.

1. Maximum Period of Detention:
   • Initial detention cannot exceed three months unless an Advisory Board approves further detention.
   • Parliament has the power to extend the period, but in most cases, it is capped at 12 months.
2. Advisory Board:
   • Composed of sitting judges of a High Court.
   • Reviews detention orders and decides whether continued detention is justified.
3. Right to Representation:
   • The detainee must be informed of the reasons for detention as soon as possible.
   • He or she has the right to make a representation against the order to the detaining authority or Advisory Board.
4. Judicial Review:
   • Although preventive detention orders are made by executive authorities, courts can review them to ensure they comply with constitutional safeguards and principles of natural justice.

Judicial Interpretation

The Supreme Court of India has interpreted preventive detention laws in several landmark cases, defining their scope and limitations:

• A.K. Gopalan v. State of Madras (1950): The Court upheld the constitutionality of preventive detention but emphasised procedural fairness and adherence to Article 22.
• Maneka Gandhi v. Union of India (1978): The Court expanded the meaning of “personal liberty” under Article 21, ruling that any deprivation must be “just, fair, and reasonable.”
• Rekha v. State of Tamil Nadu (2011): The Court held that preventive detention must be based on real and immediate necessity, not speculative or remote apprehensions.
• Ankit Ashok Jalan v. Union of India (2020): The Supreme Court reiterated that preventive detention should not be used as a substitute for ordinary law enforcement measures.

Through these judgments, the judiciary has sought to prevent arbitrary use of preventive detention while recognising its necessity under exceptional circumstances.

Merits of Preventive Detention

1. National Security: Helps the government pre-empt potential threats like terrorism, espionage, or violent unrest.
2. Public Order: Maintains peace and prevents large-scale disturbances during communal or political tensions.
3. Economic Stability: Aids in controlling black marketing, hoarding, and smuggling that disrupt essential supplies.
4. Timely Action: Enables authorities to act swiftly when evidence for conviction is insufficient but preventive action is necessary.

Demerits and Criticisms

Despite its utility, preventive detention is widely criticised for violating democratic and human rights principles:

1. Violation of Fundamental Rights:
   • Conflicts with Article 21 (Right to Life and Personal Liberty).
   • Allows detention without trial, undermining the presumption of innocence.
2. Risk of Misuse:
   • Can be used by governments to silence political dissent or target opponents.
3. Lack of Transparency:
   • The detainee may not be fully informed of the reasons for detention.
4. Weak Judicial Oversight:
   • Courts have limited power to review the “subjective satisfaction” of the executive authority.
5. Humanitarian Concerns:
   • Prolonged detention without charge causes psychological and social harm to individuals and families.

International Perspective

The right to liberty and protection from arbitrary detention is recognised under international law:

• Universal Declaration of Human Rights (UDHR), Article 9: “No one shall be subjected to arbitrary arrest, detention, or exile.”
• International Covenant on Civil and Political Rights (ICCPR), Article 9(1): Allows detention only under lawful and non-arbitrary circumstances.