Use of preventive detention in practice
📘 Use of Preventive Detention in Practice
I. What is Preventive Detention?
Preventive detention is the detention of a person without trial, not as a punishment for a past offense but to prevent the person from committing a possible future offense that threatens public order, national security, or public interest.
II. Legal Framework (India-focused with universal application)
Under Indian Constitution:
Article 22(1)–(2): Applies to regular arrests — guarantees right to be informed of grounds, right to consult lawyer, and to be presented before a magistrate within 24 hours.
Article 22(3)–(7): Allows exceptions for preventive detention:
A person may be detained without trial for up to 3 months.
Advisory Board (made of judges) must review the detention if it exceeds 3 months.
Parliament may prescribe laws for preventive detention (e.g., NSA, COFEPOSA).
Key Preventive Detention Laws:
National Security Act (NSA), 1980
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974
Unlawful Activities (Prevention) Act (UAPA), 1967 – though this is more penal in nature.
III. Constitutional and Judicial Safeguards
| Safeguard | Explanation |
|---|---|
| Limited Duration | Cannot exceed 3 months unless approved by an Advisory Board. |
| Communication of Grounds | Detenu must be informed of reasons for detention. |
| Right to Representation | Detenu can make a representation against the order. |
| No indefinite detention | Courts frown upon misuse or extensions without proper review. |
| Subject to Judicial Review | Though limited, courts can quash illegal detention. |
IV. Case Law Analysis: More Than 5 Cases
Here are seven landmark and illustrative cases explaining the use and misuse of preventive detention in practice:
📌 Case 1: A.K. Gopalan v. State of Madras (1950)
Facts:
A.K. Gopalan, a communist leader, was detained under the Preventive Detention Act, 1950.
Issue:
Whether preventive detention violates fundamental rights under Articles 19 and 21.
Judgment:
The Supreme Court upheld the detention, stating that as long as the procedure in the law is followed, detention is valid.
Principle:
This case initially gave a narrow interpretation of personal liberty and allowed wide powers to the state.
Later overruled in Maneka Gandhi v. Union of India (1978), which broadened the scope of Article 21.
📌 Case 2: Maneka Gandhi v. Union of India (1978)
Facts:
Passport impounded without giving the petitioner a chance to be heard.
Issue:
Whether any "procedure established by law" must also be just, fair, and reasonable.
Judgment:
The Court held that Article 21 protects against arbitrary laws; hence even preventive detention must follow fair procedure.
Principle:
The state’s power of preventive detention must meet constitutional standards of fairness.
📌 Case 3: Justice K.S. Puttaswamy v. Union of India (2017) – Privacy Case
Contextual Link:
The Court recognized right to privacy as a fundamental right under Article 21, which has implications for detention cases.
Principle:
Preventive detention now must also be proportionate and respect privacy rights.
📌 Case 4: Rekha v. State of Tamil Nadu (2011)
Facts:
A woman was detained under the Tamil Nadu Prevention of Dangerous Activities Act for allegedly selling expired drugs.
Issue:
Whether preventive detention was valid when ordinary laws were sufficient to prosecute.
Judgment:
The Supreme Court quashed the detention, stating that preventive detention should not be used when ordinary laws suffice.
Principle:
Preventive detention is not a substitute for regular criminal prosecution.
📌 Case 5: Deepak Bajaj v. State of Maharashtra (2008)
Facts:
Detention order passed against a journalist under COFEPOSA before he was even arrested.
Issue:
Can preventive detention be challenged before execution?
Judgment:
Court held that pre-execution challenge is valid if the detention is mala fide or illegal.
Principle:
Detention orders can be quashed before arrest if they are unconstitutional.
📌 Case 6: Alijav v. District Magistrate, Dhanbad (1973)
Facts:
The grounds of detention were vague and not properly communicated.
Judgment:
The Supreme Court quashed the detention on the ground that the detenu’s right to representation was violated due to vagueness.
Principle:
Detenu must be given clear and sufficient grounds to make a representation — failure violates Article 22(5).
📌 Case 7: Iqbal v. State of Telangana (2021)
Facts:
The petitioner was detained under the NSA for alleged "disturbance to public order" during protests.
Issue:
Was there genuine apprehension of future threat or just political vendetta?
Judgment:
The High Court held the detention was excessive and disproportionate, and ordered release.
Principle:
Courts reaffirmed that subjective satisfaction of authorities must be based on objective material.
V. Summary of Key Judicial Principles
| Doctrine | Explanation |
|---|---|
| Preventive, Not Punitive | Detention is meant to prevent future harm, not to punish past behavior. |
| Not a Substitute for Trial | Should not be used when regular criminal law is adequate. |
| Fair and Reasonable Procedure | Must comply with Article 21 – no arbitrary detention allowed. |
| Right to Be Informed | Grounds must be clear, specific, and provided promptly. |
| Right to Representation | Detainee must be allowed to challenge detention via representation. |
| Judicial Review Permitted | Detention orders can be challenged in court on grounds of mala fide or illegality. |
| Proportionality and Necessity | Detention must be the least restrictive means available to achieve the goal. |
VI. Issues in Practice
Misuse for Political Reasons: Used to detain activists, dissenters.
Vague Grounds: Often based on general phrases like “threat to public order.”
Lack of Legal Aid: Detenus often unaware of their rights or lack access to lawyers.
Delay in Review: Advisory Boards may not function promptly.
Poor Judicial Oversight in Lower Courts: Delayed or weak enforcement of protections.
VII. Conclusion
Preventive detention, while constitutionally permitted in many democracies (including India and Afghanistan), must be exceptional, temporary, and strictly monitored. Courts have repeatedly emphasized that such laws cannot override fundamental rights, and procedural fairness must be maintained.
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