Date: 13/04/2023

Relevance: GS-2: Indian Constitution - Historical Underpinnings, Evolution, Features, Amendments, Significant Provisions, and Basic Structure.

Key Phrases: Preventive detention laws, Procedural Safeguards, Procedural Rigidity, Tamil Nadu's Goondas Act, habitual offenders, Advisory Board, right to be informed of the grounds for the detention, Article 22 of the Constitution

Why in News?

• Preventive detention laws have been a contentious issue in India, with the Supreme Court and High Courts consistently denouncing the executive's failure to adhere to procedural safeguards while dealing with the rights of detainees.
• The arbitrary powers conferred on the state by these laws have been highlighted as a colonial legacy, and the Court has expressed its concern over their misuse.

What is preventive detention?

• Preventive detention in India refers to the power of the state to detain a person without trial or formal charge, to prevent him/her from committing a crime or acting in a manner prejudicial to public order.
• The Constitution of India provides for preventive detention under Article 22, subject to certain procedural safeguards.

Constitutional safeguards for preventive detention:

• Article 22 of the Indian Constitution (right against arbitrary arrest and detention) protects against arbitrary arrest and detention.
• Article 22(1) ensures that a person who is arrested must be informed of the grounds for such arrest and has the right to consult and be defended by a legal practitioner of their choice.
• Article 22(2) ensures that every person who is arrested and detained must be produced before the nearest magistrate within 24 hours, and cannot be detained beyond that period without the authority of a magistrate.
• Article 22(3) provides an exception to these provisions for enemy aliens and those detained under preventive detention laws.
• Article 22(4) mandates that any law providing for preventive detention cannot authorize the detention of a person for a period longer than three months unless an Advisory Board consisting of High Court judges reports that there is sufficient cause for detention.
• Article 22(5) ensures that the detained person has the right to be informed of the grounds for the detention and to make a representation against the order.
• Article 22(6) clarifies that the detaining authority cannot withhold information that is necessary for the detained person to make a representation, except when such information is against the public interest.
• Article 22(7) grants Parliament the power to prescribe the circumstances and maximum period for which a person may be detained under preventive detention laws, and the procedure to be followed by the Advisory Board.

The Challenge of Procedural Safeguards:

• Preventive detention laws allow the state to detain an individual without a trial, based on the suspicion that they may commit a crime.
• In such cases, it is essential to ensure that procedural safeguards are followed to prevent the arbitrary exercise of power.
• However, the executive's failure to adhere to these safeguards has been a cause for concern.
• Courts have routinely set aside detention orders on technical grounds, leading to insubstantial relief for the detainees.

The Importance of Adhering to Procedural Rigidity:

• The Supreme Court has emphasized that procedural rigidity must be followed in entirety by the government in cases of preventive detention.
• Every lapse in procedure must give rise to a benefit to the case of the detenu.
• The court has also highlighted the need for a rigorous examination of procedural safeguards, especially in cases where the individual's rights are at stake.

Factors Leading to Detention Orders Being Quashed:

• The failure to provide proper grounds for detention or delay in furnishing them is one of the most common reasons why detention orders are set aside.
• Unexplained delays in the disposal of representations submitted by the detainees to the authorities and the provision of illegible copies of documents are other reasons.
• In rare instances, preventive detention laws have been invoked for trivial reasons, leading to widespread misuse.

Tamil Nadu's Goondas Act:

• Tamil Nadu has topped the country in preventive detentions from 2011-2021, mainly due to its Goondas Act.
• This law covers a broad range of offenders, including bootleggers, slum grabbers, forest offenders, video pirates, sex offenders, and cyber-criminals.
• However, the law's ambit is rarely restricted to habitual offenders, as it ought to be, but extends to suspects in major cases, leading to widespread misuse.

Preventive Detention as a Pervasive Phenomenon:

• Across the country, preventive detention is a pervasive phenomenon, with the tendency to detain suspects for a year to prevent them from obtaining bail leading to widespread misuse.
• Preventive detention is allowed by the Constitution but does not relieve the government of the norm that curbing crime needs efficient policing and speedy trials, not unfettered power and discretion.

Conclusion:

• India's preventive detention laws have been a source of concern for several decades, with courts repeatedly highlighting the need for procedural safeguards.
• The failure to adhere to these safeguards has led to the arbitrary exercise of power, with most detentions ultimately being set aside.
• It is essential to reform these laws to prevent their misuse and adhere to the procedural rigidity that the Supreme Court has emphasized.
• A balance needs to be struck between protecting the rights of the individual and ensuring public safety, and preventive detention laws must be reviewed to achieve this.

Source: The Hindu

Mains Question:

Q. Discuss the significance of preventive detention laws in maintaining public order, and the challenges posed by their misuse, and suggest measures to address the issue.