Write about preventive detention
Answers
Preventive Detention is the the most contentious part of the scheme fundamental rights in the Indian constitutions. The Article 22 (3) of the Indian constitution provides that, if a person is arrested or detained under a law providing for preventive detention, then the protection against arrest and detention under Article 22 (1) and 22 (2) shall not be available.
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 possible commitment of 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—
security of state,
maintenance of public order,
maintenance of supplies and essential services and defence,
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 of personal liberty guaranteed by Article 19 or Article 21.
To prevent reckless use of Preventive Detention, certain safeguards are provided in the constitution.
Firstly, a person may be taken to 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.
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.
Thirdly, the detaining authorities must give the detainee earliest opportunities for making 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 on the chapter on fundamental rights. These safeguards are not available to enemy aliens.