Preventive detention refers to the imprisonment of a person to prevent the possible commitment of crime on the grounds of suspicion that such a person may commit some crime in the near future.
It leads to the detention of a person without trial and conviction by a court. Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the near future.
Constitutional Provisions Related to Preventive Detention
- Article 22 also authorises the Parliament to prescribe
- (a) the circumstances and the classes of cases in which a person can be detained for more than three months under a preventive detention law without obtaining the opinion of an advisory board
- (b) the maximum period for which a person can be detained in any classes of cases under a preventive detention law
- (c) the procedure to be followed by an advisory board in an inquiry.
- 44th Amendment Act of 1978 has reduced the period of detention without obtaining the opinion of an advisory board from three to two months. However, this provision has not yet been brought into force, hence, the original period of three months still continues.
- The Parliament has exclusive authority to make a law of preventive detention for reasons connected with defence, foreign affairs and the security of India. Both the Parliament as well as the state legislatures can concurrently make a law of preventive detention for reasons connected with the security of a state, the maintenance of public order and the maintenance of supplies and services essential to the community.
Legislation in India on Preventive Detention
National Security Act, 1980: This act provides for administrative detention for a period of up to one year.
COFEPOSA 1974: The act provided for preventive detention to maintain and improve foreign exchange and also to deter illegal trade prevailing.
TADA 1985: The fundamental objective of this legislation is to demonstrate that it was agreed based on practice that preventive detention is required to deter and successfully counteract terrorism and violent acts.
Grounds on which Prevention Detention can be made
- Security of the state
- Maintenance of the public order
- Maintaining essential services and defence
- Foreign affairs with the security of India.
- Alijav vs. District Magistrate, Dhanbad: The Supreme Court stated that while criminal proceedings involve punishing a person for an offence committed by him, preventive detention does not.
- Ankul Chandra Pradhan vs. Union of India: The Court stated that the purpose of preventive detention is not to punish but to keep the detainee from doing anything that would jeopardize the state’s security.
- AK Gopalan vs. State of Madras: The Supreme Court upheld the constitutionality of the Preventive Detention Act. Furthermore, the Court held that Article 22 of the Constitution includes extensive procedural safeguards for preventive detention. As a result, the Court determined that the contested act did not violate fundamental rights because it met all of the procedural safeguards outlined in Article 22(5).
