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Legopedia

All About Preventive Detention

What is Preventive Detention?

The imprisonment of a person with the aim of preventing them from committing further offences or of maintaining public order is known as Preventive Detention.

A person can be put in jail/custody for two reasons-

  1. One is that he has committed a crime.
  2. Another is that he is potential to commit a crime in the future.

The custody arising out of the later is preventive detention and in this, a person is deemed likely to commit a crime. Thus Preventive Detention is done before the crime has been committed.

Within a month of the enactment of the Indian Constitution in 1950, the Preventive Detention Act 1950 was introduced. But these laws are repugnant to modern democratic constitutions. They are not found in any of the democratic countries and hence are unlawful in most countries like USA & UK.

The reason this law applies in India is that India is a country having a multi-ethnical, multi-religious and multilingual society. Caste and communal violence are very common in India. Apart from that, the circumstances at the time when our constitution came in force, demanded such provisions. This is evident from following the statement of Dr Bhimrao Ambedkar :

“….in the present circumstances of the country, it may be necessary for the executive to detain a person who is tempering either with the public order or with the defence services of the country. In such a case, I don’t think that the exigency of the liberty of an individual shall be above the interests of the state”

Preventive detention should be carefully distinguished from punitive detention. Punitive detention is punishment for illegal acts done. Preventive detention, on the other hand, is action taken beforehand to prevent the possible commitment of the crime. Preventive detention thus is action taken on grounds of suspicion that some wrong actions may be done by the person concerned.

Preventive detention can, however, be made only on four grounds.

The grounds for Preventive detention are

1) Security of state,

2) Maintenance of public order,

3) Maintenance of supplies and essential services and defence,

4) Foreign affairs or security of India.

A person may be detained without trial only on any or some of the above grounds. A detainee under preventive detention can have no right to personal liberty guaranteed by Article 19 or Article 21.

To prevent the reckless use of Preventive Detention, certain safeguards are provided in the constitution.

  1. Firstly, a person may be taken into preventive custody only for 3 months at the first instance. If the period of detention is extended beyond 3 months, the case must be referred to an Advisory Board consisting of persons with qualifications for appointment as judges of High Courts. It is implicit, that the period of detention may be extended beyond 3 months, only on approval by the Advisory Board.
  2. Secondly, the detainee is entitled to know the grounds of his detention. The state, however, may refuse to divulge the grounds of detention if it is in the public interest to do so. Needless to say, this power conferred on the state leaves scope for arbitrary action on the part of the authorities.
  3. Thirdly, the detaining authorities must give the detainee earliest opportunities for making a representation against the detention. These safeguards are designed to minimize the misuse of preventive detention. It is because of these safeguards that preventive detention, basically a denial of liberty, finds a place in the chapter on fundamental rights. These safeguards are not available to enemy aliens.

As a conclusion, PDA is a “necessary evil”. In a country like India where a lot of subversive activities are being carried out by our own citizens, the philosophy of the Article 22 remains valid even today akin to the conditions prevalent in the country at the time of independence.

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by Vinita

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