_page-0001.jpg)
What's the article about?
- It talks about the judiciary’s observations on the use of preventive detention laws in India.
Relevance:
- GS2: Functions and Responsibilities of the Union and the States; Governance; Judiciary;
- Prelims
Context:
- Recently, the Supreme Court said that the preventive detention laws in India are a colonial legacy with a great potential to be abused and must be used only in the rarest of rare cases.
- It also said that courts must analyse cases arising from such laws with extreme caution to ensure there are checks and balances on exercise of power by the government.
What is Preventive Detention?
- Preventive detention refers to taking into custody an individual who has not committed a crime yet but the authorities believe him to be a threat to law and order.
- The power to make Preventive Detention laws in India comes from the Constitution itself which empowers the Parliament to make such laws for reasons connected with Defence, Foreign Affairs or the Security of India. Parliament has exclusive legislative powers.
- The Union and the States have concurrent legislative powers for reasons connected with the security of a State, the maintenance of public order or the maintenance of supplies and services essential to the community.
- Such detention involves custody without any criminal trial, moreover these laws need not follow the procedural guarantees which are fundamental to the detention of an individual in the normal course.
Constitutional Provisions:
- Article 22 of the Indian Constitution provides protection against arrest and detention in certain cases.
- Article 22 (1) of the Indian Constitution says an arrested person cannot be denied the right to consult, and to be defended by, a legal practitioner of his choice.
- Article 22 (4) states that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months.
- Under Entry 9 of List I (‘Union List’), Parliament has 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.
Preventive Detention Laws in India:
- Parliament passed a legislation named Preventive Detention Act, 1950 which talks about the detention of a person on the grounds of defense, foreign affairs or the security of the state.
Analysis:
- For several decades now, the apex court and High Courts have been denouncing the executive’s well-documented failure to adhere to procedural safeguards while dealing with the rights of detainees.
- While detention orders are routinely set aside on technical grounds, the real relief that detainees gain is quite insubstantial.
- Often, the quashing of detention orders comes several months after they are detained, and in some cases, including the latest one in which the Court has made its remarks, after the expiry of the full detention period.
- In preventive detention cases, courts essentially examine whether procedural safeguards have been adhered to, and rarely scrutinise whether the person concerned needs to be detained to prevent prejudice to the maintenance of public order.
- Therefore, it is salutary that the Court has again highlighted that “every procedural rigidity, must be followed in entirety by the Government in cases of preventive detention, and every lapse in procedure must give rise to a benefit to the case of the detenu”.
- Some facts concerning preventive detention are quite stark: most detentions are ultimately set aside, and the most common reason is that there is an unexplained delay in the disposal of representations that the detainees submit against their detention to the authorities.
- Failure to provide proper grounds for detention, or delay in furnishing them, and sometimes giving illegible copies of documents are other reasons.
- In rare instances, courts have been horrified by the invocation of prevention detention laws for trivial reasons.
Way Forward:
- Across the country, the tendency to detain suspects for a year to prevent them from obtaining bail is a pervasive phenomenon, leading to widespread misuse.
- Preventive detention is allowed by the Constitution, but it does not relieve the government of the norm that curbing crime needs efficient policing and speedy trials, and not unfettered power and discretion.
