Detention Procedures And Judicial Review
1. Constitutional and Legal Framework
In India, preventive detention is governed primarily by:
Article 22 of the Constitution of India
Deals with preventive detention.
Preventive detention is distinct from regular criminal detention because it is preventive, not punitive.
Key Points of Article 22:
A person can be detained without trial under a preventive detention law for up to 3 months without the approval of an Advisory Board.
The Advisory Board consists of judges of the High Court.
The maximum period of detention under a preventive detention law can extend up to 12 months.
Preventive detention laws must provide grounds of detention.
Preventive Detention Laws
National Security Act, 1980 (NSA)
Preventive Detention Act, 1950 (repealed)
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA)
Preventive detention allows the state to detain a person without trial if it believes the person may commit an offense or threaten public order.
2. Judicial Review of Detention
Even though preventive detention is an executive power, the judiciary can review it under certain grounds:
Constitutional Validity: Whether detention violates fundamental rights under Article 19 or 21.
Procedural Validity: Whether the authority followed the procedure laid down in law.
Existence of Sufficient Grounds: Whether the reasons for detention are adequate and valid.
Article 22(5) initially restricted judicial review but over time, courts expanded the scope of review to include the sufficiency and genuineness of grounds of detention.
3. Landmark Case Laws
Here are detailed explanations of more than five key cases:
(i) A.K. Gopalan v. State of Madras (1950) 1 SCR 27
Facts:
A.K. Gopalan, a communist leader, was detained under the Preventive Detention Act, 1950.
He challenged the detention on the ground that it violated Articles 19 and 21.
Decision:
Supreme Court upheld preventive detention laws.
Held that Article 21 (right to life and personal liberty) cannot be invoked to challenge preventive detention laws; preventive detention was a special category.
Initially, judicial review was limited, and the court took a narrow view of fundamental rights.
Significance:
Set the stage for understanding preventive detention as an exception to ordinary rights.
Later cases modified this rigid approach.
(ii) Maneka Gandhi v. Union of India (1978) 1 SCC 248
Facts:
Maneka Gandhi’s passport was impounded under the Passport Act.
She challenged it under Articles 14, 19, and 21.
Decision:
Expanded the interpretation of Article 21: “life and personal liberty” must be interpreted broadly, including the right to freedom from arbitrary state action.
Laid down that any law depriving personal liberty must be just, fair, and reasonable (due process in spirit).
Significance for Preventive Detention:
Courts started scrutinizing the procedure and reasonableness of preventive detention orders.
Preventive detention could not be arbitrary.
(iii) ADM Jabalpur v. Shivkant Shukla (1976) 2 SCC 521
Facts:
During Emergency, habeas corpus petitions were filed challenging detention.
Government argued that even fundamental rights could be suspended under Emergency.
Decision:
Supreme Court controversially held that during Emergency, even the right to life and liberty could be suspended.
Preventive detention was upheld in this context.
Significance:
Demonstrated the limits of judicial review under extraordinary circumstances.
Post-Emergency, judicial attitudes shifted, emphasizing protection of personal liberty.
(iv) R. Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632
Facts:
Involved state overreach and potential preventive detention threats.
Decision:
Court reinforced the principle that preventive detention must be based on concrete facts, not mere suspicion.
Detention orders must state reasons clearly, and judicial review includes examining the sufficiency of grounds.
Significance:
Strengthened procedural safeguards against misuse.
Courts began insisting that even preventive detention must respect the rule of law.
(v) Kanu Sanyal v. District Magistrate, Darjeeling (1962) AIR 1962 SC 746
Facts:
Kanu Sanyal, a Naxalite leader, was detained under preventive detention.
Challenged the detention on the ground that the grounds were vague.
Decision:
Court held that detention order must clearly specify reasons.
Mere “suspicion” or general statements about threat to public order are insufficient.
Significance:
Strengthened procedural requirements for preventive detention.
Courts now require specific, credible facts.
(vi) Chintaman Rao v. State of Madhya Pradesh (1950) SCR 759
Facts:
Detention under Preventive Detention Act.
Claimed violation of natural justice and Article 21.
Decision:
Court allowed judicial review only for legality, not for policy wisdom.
Detention orders could be questioned for procedural irregularities and malafide intention.
Significance:
Early recognition of procedural safeguards in preventive detention.
Set the foundation for later expansive judicial review.
4. Procedural Safeguards under Preventive Detention
Authority of Detention: Must be issued by an authorized executive authority (District Magistrate or State Government).
Maximum Period Without Advisory Board: 3 months (can extend under law).
Mandatory Advisory Board: Must consist of High Court judges to review detentions beyond 3 months.
Right to be Informed of Grounds: Detained person must be given reasons as soon as possible.
Right to Representation: The detainee may present representations against detention.
5. Key Principles from Judicial Review
Detention must be preventive, not punitive.
Grounds must be specific and credible.
Courts can examine existence of facts, not just the legality of the procedure.
Detention cannot be arbitrary or mala fide.
Preventive detention laws cannot completely bypass constitutional safeguards, even though some rights may be restricted.
Summary Table of Key Cases
| Case | Key Principle |
|---|---|
| A.K. Gopalan (1950) | Preventive detention distinct from Article 21 protection |
| Maneka Gandhi (1978) | Expanded Article 21: due process applies |
| ADM Jabalpur (1976) | Emergency can limit rights (controversial) |
| Kanu Sanyal (1962) | Grounds of detention must be specific |
| Chintaman Rao (1950) | Judicial review for legality, procedural safeguards |
| R. Rajagopal (1994) | Detention based on concrete facts; no arbitrary detention |
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