Supreme Court referred to Preventive detention, a necessary evil only to prevent public disorder

A Bench led by Justice Rohinton F. Nariman observed that Preventive detention is a necessary evil that is devised only to prevent public disorder.

Context

A Bench led by Justice Rohinton F. Nariman observed that Preventive detention is a necessary evil that is devised only to prevent public disorder.

About the Preventive Detention

• Article 22 talks about preventive detention which may be implemented in peacetime, non-emergency situations, or otherwise.
• This allows an individual to be detained without charge or trial for up to three months and denies detainees
• the rights to legal representation
• cross-examination
• timely or periodic review
• access to the courts or compensation for unlawful arrest or detention
• Preventive Detention is considered the most contentious part of the fundamental rights in the Indian constitution.

The object of the Preventive Detention

• The object is not to punish but to prevent the detenu from doing an act which is prejudicial to the State. It comes within any of the grounds specified
  • Security of the State
  • Public Order
  • Foreign affairs
  • Services essential to the community

Safeguards Provided in Constitution against the arbitrariness of state

• To prevent arbitrary use of Preventive Detention, certain safeguards are provided in the constitution.
  • A person may be taken to preventive custody only for 3 months at first instance. If the period of detention is extended beyond the 3 months duration, the case must be referred to the Advisory Board which is consisting of persons with qualifications for appointment as judges of High Courts.
  • The detainee is entitled to know the grounds of his or her detention. The state may refuse to declare the grounds of detention in the public interest.
  • The detaining authorities must give the detainee the earliest opportunities to make representation against the detention.

What did the Supreme Court say about preventive detention?

• The Court said that the state should not arbitrarily use “preventive detention” to deal with all and sundry “law and order” problems, which could be handled with the ordinary laws of the country.
• The SC said that the court must ensure that the facts which are brought before it directly and inevitably lead to harm, danger or alarm, or feeling of insecurity among the general public or any section thereof at large.
• The legality of the cases must be ensured under the 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.