Telangana’s law under scanner: How preventive detention works

Source: The post is based on the article “Telangana’s law under scanner: How preventive detention works” published in “The Hindu” on 25th October 2023

What is the News?

The Supreme Court has expressed concerns about the Telangana government’s use of Preventive Detention law in three different cases.

What is Preventive Detention?

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. 

Under what laws can the state order 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).

Additionally, around 25 states have their own laws that allow for preventive detention.

What is the procedure for Preventive Detention?

First, the district magistrate would issue an order to detain a person when it is necessary to maintain “public order.”The state can delegate this power to the police as well.

If the detention ordered is for more than three months, such a detention requires the approval of an Advisory Board. 

These Advisory Boards are set up by states and normally consist of retired judges and bureaucrats.A detainee is generally not allowed legal representation before the Board. If the Board confirms the detention, the detainee can move Court challenging the detention order.

The detainee is entitled to know the grounds of his detention.However, the state may refuse to divulge the grounds of detention if it is in the public interest to do so. 

The detaining authorities must also give the detainee earliest opportunities for making representation against the detention.

How do courts assess detention orders?

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. 

However, courts have also invalidated detention orders based on technical issues.These could include delays in the Advisory Board’s decision, timely communication of detention grounds and ensuring that the detainee understands these grounds.