Preventive Detention: The Supreme Court held in a judgment on 2nd July 2021, that Preventive detention, the dreaded power of the State to restrain a person without trial, could be used only to prevent public disorder.
What has the apex court recently ruled?
- Preventive detention is a necessary evil only to prevent public disorder.
- The court must ensure that the facts brought before it directly and inevitably lead to harm, danger or alarm, or feeling of insecurity among the general public or any section thereof at large, a Bench, led by Justice Rohinton F. Nariman, observed.
- The State should not arbitrarily resort to “preventive detention” to deal with all and sundry “law and order” problems, which could be dealt with by the ordinary laws of the country.
- Preventive detention must fall within the four corners of Article 21 (due process of law) read with Article 22 (safeguards against arbitrary arrest and detention) and the statute in question.
What is Preventive Detention?
- Preventive detention (PD) means detaining a person so that to prevent that person from commenting on any possible crime.
- In other words, preventive detention is an action taken by the administration on the grounds of the suspicion that some wrong actions may be done by the person concerned which will be prejudicial to the state.
Preventive Detention in India:
- Under Section 151 of The Criminal Procedure Code, 1973 (CrPC) preventive detention is an action taken on grounds of suspicion that some wrong actions may be done by the person concerned.
- A police officer can arrest an individual without orders from a Magistrate and without any warrant if he gets any information that such an individual can commit any offense.
- Article 22 of the Indian Constitution provides protection against arrest and detention in certain cases.
Issues with preventive detention:
- The police determinations of whether a person poses a threat are not tested at a trial by leading evidence or examined by legally trained persons.
- Quite often, there is no trial (upto 3 months), no periodic review, and no legal assistance for the detained person.
- It does not provide any procedural protections such as to reduce detainees’ vulnerability to torture and discriminatory treatment and to prevent officials’ misusing preventive detention for subversive activities.
Tool for suppression:
- In the absence of proper safeguards, preventive detention has been misused, particularly against the Dalits and the minorities.
What is the difference between preventive detention and an arrest?
- An ‘arrest’ is done when a person is charged with a crime. An arrested person is produced before a magistrate within the next 24 hours.
- In the case of preventive detention, a person is detained as he/she is simply restricted from doing something that might deteriorate the law and order situation.