Preventive Detention

What’s in Today’s Article?

• What is Preventive Detention?
• Difference Between Preventive Detention and an Arrest
• History of Preventive Detention Laws in India
• Constitutional Safeguards Against Misuse of Preventive Detention
• How Does the Judiciary Assess the Detention Orders?

Why in the News?

• As Telangana gears up for Assembly polls next month, its stringent preventive detention law is under the spotlight.
• In at least three separate instances, the Supreme Court has red-flagged the Telangana government’s use of the law.
• The latest was in a ruling on September 4, where the court underlined that the pernicious trend prevalent in the state of Telangana has not escaped the Court’s attention.

What is Preventive Detention?

• Under Section 151 of the Criminal Procedure Code, 1973 (CrPC) preventive detention is police action taken on grounds of suspicion that some wrong actions may be done by the person concerned.
• 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.
• It is a precautionary measure and based on suspicion.

Difference Between Preventive Detention and an Arrest

• An ‘arrest’ is done when a person is charged with a crime. An arrested person is produced before a magistrate within the next 24 hours.
• In 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.

History of Preventive Detention Laws in India

• The history of preventive detention laws dates back to the Bengal Regulation Act, 1818 under which people could be detained on mere suspicion which was applicable to the three Presidencies, that is, Calcutta, Bombay and Madras during the British era.
• Later the ‘Black law’ commonly called as the Rowlatt Act was introduced in the year 1919 which ensured indefinite detention on mere suspicion without formal trial and judicial review.
• Under Entry 9 of List I (Union List), Constitution of India provides the Parliament with the exclusive power to enact a law for preventive detention for the reasons connected with defence, foreign affairs, or security of India.
• On the other hand, under Entry 3 of List III (Concurrent List), both Parliament and State Legislature have powers to enact such laws for the reasons related to maintenance of public order or maintenance of supplies or services essential to the community.
• Subsequently, the Parliament has enacted several laws in this respect –
  • Preventive Detention Act, 1950 (expired in 1969)
  • The National Security Act, Section 13, 1980 (provides for administrative detention for a period of up to one year)
  • The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) (provides for administrative detention for a period of up to six months)
  • The Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, Section 13, 1980 (six months)
  • The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, Section 10, 1988.

Constitutional Safeguards Against Misuse of Preventive Detention

• Article 22 of the Constitution provides safeguards against the misuse of police powers to make arrests and detentions.
  • Article 22, Clause 2 states that if someone is arrested, they must be taken to the nearest magistrate within 24 hours, not counting the travel time from the arrest location to the court.
    • If a person is not taken to the magistrate within this time, they can't be kept in custody without the magistrate's permission.
  • The clause (4) of the Article 22 states that no individual can be detained for more than 3 months unless a bench of High Court judges or an Advisory Board decides to extend the date.
  • The clause (5) of the Article 22 states that the detained individual should be made aware of the grounds he/she has been detained and should provide him/her with an opportunity of making a representation against the case.

How Does the Judiciary Assess the Detention Orders?

• For preventive detention, there are very narrow grounds of judicial review because the Constitution emphasises the state’s “subjective satisfaction” when ordering a detention.
• A judicial review is limited to whether the Advisory Board applied its mind, considered all material facts and whether the state showed obvious malafide in ordering detention.
• Because judicial review is limited, courts often strike down detention orders on technical grounds, such as delay in the decision of the advisory board, communication of grounds in a timely fashion and in a language that the detainee understands, etc.

Q1) What is Zero FIR?

Zero FIR is an FIR that can be registered by any police station, irrespective of jurisdiction, when it receives a complaint regarding a cognisable offence. 

Q2) What is the difference between Judicial Custody & Police Custody?

 Police Custody means that police have the physical custody of the accused while Judicial Custody means an accused is in the custody of the concerned Magistrate. In the former, the accused is lodged in a police station lockup while in latter, it is the jail.

Source: Telangana’s law under scanner: How preventive detention works