Context: The preventive detention laws of Telangana Government are in news because of recent Supreme Court observations.
About Preventive Detention
Preventive detention is detention of person by State without trial and conviction by the court and merely on the suspicion. No law providing for preventive detention shall authorize the detention of a person for a longer period than three months except for the recommendations of advisory board.
Constitutional provisions
- Article 22: It provides for protection against arbitrary arrest and detention.
- Article 22(3)(b): It provides for the exception to Article 22; it states that none of the safeguards provided in Article 22 are applicable “to any person who is arrested or detained under any law providing for preventive detention.”
- Article 22(4) to Article 22(7): Provide for procedure of operation of preventive detention.
Procedure of operationalization of Preventive detention laws
- The District Magistrate issues an order to detain the person when it is necessary to maintain “public order.”
- If the detention order is of more than 3 months, Article 22(3) states that such order requires approval of an Advisory Board.
- Advisory boards are boards set up by respective states which consist of persons who are or have been or are qualified to be appointed as judges of High Courts.
- The detainee is generally not allowed representation before the board; however, the detainee can move to court against the detention order.
- Article 22(5): States that the authorities making order of arrest under preventive detention law shall communicate to the person the grounds of order for arrest at the earliest. This affords the detainee an opportunity of making representation against the order.
- Article 22(6): It provides exception to Article 25, it states that the State need not provide the grounds of arrest in case the authorities consider that disclosure of such facts is against public interest. This exception is generally used for denying the grounds for arrest in case of preventive detention.
Difference between Punitive and Preventive detention
| Criteria | Punitive detention | Preventive detention |
| Objective | To provide punishment to a person who is found guilty of an offense. | To stop a person from inflicting any harm to the society. |
| Nature of offense | It is given after trial and conviction in court of law. | It means detention of a person without trial and conviction by court. |
| Duration | Its duration is determined by the sentencing guidelines for the specific crime committed. It is determined at the time of sentencing and can range from a few months to life imprisonment or even the death penalty. | Preventive detention is usually imposed for a fixed period, as specified in the relevant preventive detention laws. It is meant to be temporary and can be extended in certain cases, subject to legal requirements and periodic reviews by Advisory board. |
| Right to Bail | Individuals have the opportunity to seek bail while awaiting trial or during the appeals process in most cases, depending on the nature of the offense and other factors. | It is typically non-bailable, it means individuals detained preventively do not have the automatic right to seek bail during their detention period. |
| Judicial review | Individuals have the right to appeal their conviction. | There is very narrow ground of judicial review in case of preventive detention. |
| Examples | Various provisions of IPC and CrPC: IPC 302 provides punishment for murder.IPC 498A provides punishment for cruelty against wife. | Central legislations: National Security Act, Unlawful Activities Prevention Act. State Legislations: Telangana Preventive Detention Act. Bihar Control of Crimes Act. |
Judicial review of preventive detention
- There is very narrow ground of judicial review in preventive detention because constitution has emphasized on State’s subjective satisfaction when ordering detention.
- This means that the test on which order is examined is subjective opinion of state rather than Fundamental rights enshrined in the constitution.
- Judicial review is limited to whether the Advisory board applied its mind and whether the state showed mala fide in ordering detention.
