Source: HT
Context: SC has said that “Preventive detention laws in India are a colonial legacy that has great potential to be abused and misused by the State and any slightest error in compliance of procedure by authorities should result in favour of the detenue”
Previously the Court had observed that:
- The State should not arbitrarily resort to “preventive detention” to deal with all and sundry “law and order” problems
- Preventive detention could be used only to prevent public disorder.
- Courts must analyse cases arising from such laws with extreme caution to ensure there are checks and balances on the exercise of the power of the government.
- Every procedural rigidity must be followed in its entirety by the government in cases of preventive detention.
- 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.
About Preventive Detention:
| Explanation | |
| Definition | Detention of a person without trial and conviction by a court to prevent future offences |
| Legislative authority | Parliament has exclusive authority to make a law of preventive detention for reasons connected with the defence, foreign affairs, and security of India.
Both Parliament, as well as state legislatures, can make a law for reasons connected with the Security of a state, Maintenance of public order and Maintenance of supplies and services. |
| Constitutional Provision | Article 22 (3) (b) of the Constitution allows for preventive detention and restriction on personal liberty for reasons of state security and public order.
|
| Maximum detention | Detention of a person cannot exceed three months unless an advisory board reports sufficient cause for extended detention. |
| 44th Amendment Act of 1978 | The Amendment 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.
|
| Protections | Protection against arrest and detention under Articles 22 (1) and 22 (2) is not available to a person arrested or detained under preventive detention laws. |
| Worst performer | Tamil Nadu topped the country (2011-21) in preventive detentions.
One reason is that its ‘Goondas Act’ covers offenders who range from bootleggers, slum grabbers, and forest offenders to video pirates, sex offenders and cyber-criminals. |
