Status of Preventive Detention in India


Preventive detention refers to the holding of an individual in an effort to prevent that person from committing any potential crime, or, to put it another way, preventive detention is really an intervention taken by the government based on the presumption that the person in question might or is likely to commit some wrongdoing that would be detrimental to the State. Preventive detention is by far the most controversial aspect of the Indian Constitution’s fundamental rights system. Article 22 (3) of the Constitution of India states that individuals who have been arrested or detained under preventive detention laws are not entitled to the protections against arrest and detention granted by Articles 22 (1) and 22 (2) of the Constitution of India.

Preventive Detention, as the term implies, is the anticipatory measure under which the individual is imprisoned in order to deter him from carrying out any unlawful activity expressly forbidden by the Indian Penal Code of 1860. According to Section 151 of the Code of Criminal Procedure, 1973, Preventive Detention could only be carried out on the ground that the said individual is suspected of doing something immoral. In contrast, Article 22 of the Indian Constitution provides for the protection of rights of each and every individual, which includes citizens and non-citizens with perhaps the exception of enemy aliens, from arrest and imprisonment in any particular instance which is not in accordance with the legal process. At this point, one really has to understand that perhaps a difference exists among both arrest and preventive detention. An arrest would be when the person is found guilty for any crime committed by him but, in the scenario of preventive detention, the individual is solely confined from doing anything to preserve the situation of law and order.


The legal journey of Preventive Detention can trace its origins right from the very beginning of the Constitution. In the case of AK Gopalan, where the constitutionality of preventive detention had first been questioned, it was held that preventive detention originally came within the constitutional framework and, therefore, it is legally permissible. The 44th Amendment Act attempted to reduce the recommended threshold duration of preventive detention from three months to two months, but such an action was taken without any of the consultative board’s view.

The provision did not come into force and thus the three-month duration is still very much in effect. This constitutional validity was once again upheld by the Supreme Court in 2005, in the matter of Ahmed Noor Mohamad Bhatti v. Gujarat State, wherein the Supreme Court was of the opinion that the power, under Section 151 of the Cr.P.C., to convict the individual without even a permit is not really unlawful solely because the police officer could misuse his power. This implies that preventive detention is a necessary instrument in the Executive’s hands. In the scenario of preventive detention, although the individual is allowed to question the ground for his confinement, it may be denied by the officials on the ground of interest of the public and, therefore, it leaves the officials sufficient scope for arbitrariness. Article 22 (3) of the Constitution of India clearly states that, where an individual is detained under the preventive detention legislation, security under Article 22 (1) and Article 22 (2) is not accessible to him.


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