Q. With reference to Preventive Detention, consider the following statements:
1.In India, the Constitution itself allows for preventive detention.
2.The states and the central government have distinct laws governing preventive detention.
3.For preventive detention, there are very narrow grounds of judicial review because the Constitution emphasizes the state’s “subjective satisfaction” when ordering a detention.
4.Preventive detention is not subject to the same legal safeguards as regular imprisonment..
How many of the above statements are correct?
Explanation –
Statements 1, 2 and 3 are correct. Preventive detention means detention of a person by the state without trial and conviction by court, but merely on suspicion. The detention could be up to a year unless extended.
In countries such as Britain, United States and Canada, preventive detention is a wartime measure. In India, the Constitution itself allows for preventive detention.
Article 22 of Part III of the Constitution, which deals with fundamental rights, grants the state the power to suspend these rights for preventive detention.
The state can order preventive detention under various laws. At the national level, examples of such laws include the National Security Act and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA).
For preventive detention, there are very narrow grounds of judicial review because the Constitution emphasizes the state’s “subjective satisfaction” when ordering a detention.
Judicial review in such cases is often limited to whether the Advisory Board applied its mind, considered all material facts and whether the state showed malicious intention in ordering detention.
Statement 4 is incorrect. Preventive detention is subject to the same legal safeguards as regular imprisonment, with some additional safeguards. In India, preventive detention is governed by the Constitution of India and the Preventive Detention Act, 1950. The Constitution of India provides that no person shall be detained without trial for more than three months, unless an advisory board has reported that there is sufficient cause for such detention.
In addition to the safeguards provided by the Constitution, the Preventive Detention Act, 1950 also provides for certain additional safeguards. For example, the Act requires that the detaining authority must inform the detenu of the grounds of detention within five days of the detention. The detenu also has the right to make a representation against the detention to the Advisory Board.
However, the procedural safeguards in preventive detention are often weaker than those in regular imprisonment, which raises concerns about the potential for misuse of this power.
Source: ForumIAS
