Preventive detention

Published on 16 Jan 2025

Preventive detention refers to the detainment of individuals by the government without trial or formal charges, usually to prevent them from committing certain anticipated acts that are considered prejudicial to the state or society. Such an action is taken to preserve public order and to prevent any large mishappening.

As per Article 22, no person shall be detained for more than three months unless it is authorised by an advisory body consisting of judges of the High Court. The period over which the person can be detained without being presented to the advisory body can be changed by the Parliament.

Concerns associated with preventive detention

• Social issues

• Violation of human rights: The person kept under detention will have restricted liberty and this is a violation of their basic human right.

• Example: Regional party leaders of Jammu and Kashmir were kept under detention when Article 370 was abrogated.

• Social stigma and discrimination: Even when the detainees are released without any charges, they will be stigmatised which affects their reintegration with society.

• Example: Youth detained under UAPA would face social stigma even when they are innocent.

• Psychological trauma: Detention without trial can cause significant anxiety and stress for the individuals, impacting their mental health.

• Impact on family: Families of those under preventive detention suffer emotionally, and economically. They also face societal ostracization and isolation.

• Example: The stress faced by families of Kashmiri youth who were arrested based on the Public Safety Act.

• Loss of livelihood: Detention can result in loss of employment, income and other opportunities which affects the financial stability of the detainees and their families.

• Political

• Potential for political misuse: The government can use these powers to suppress political dissent or target any specific community.

• Example: In 2021, 1.1 lakh people were kept under preventive detention which indicates the rampant misuse of the provision.

• Undermine the rule of law: Preventive detention without due process of law can undermine the basic principle behind the rule of law.

• Impact on democracy: The restriction imposed upon civil liberties and its potential to quench activism can be regarded as a threat to democracy.

• Example: More than 5500 protestors were kept under detention during an anti-CAA protest which has been a blot on India’s democracy.

• Lack of transparency: Secrecy is maintained in terms of providing reasons and evidence that erodes public trust in the legal system.

• Example: Detention made under the National Security Act, 1980 lacks transparency and this raises concerns.

Way forward

• Clear legal framework: The cases for which preventive detention shall be permitted must be well defined with minimal subjectivity.

• Judicial oversight: The Judiciary must follow the tests recommended by the Supreme Court in the Rekha vs State of Tamil Nadu to look into the validity of detention.

• Periodic review: Mandatory periodic review of detention cases by an independent body to assess the continued necessity of detention.

• Limit the detention period: Reduce the detention period to 2 months and further detention to be made only in rare cases.

Though the provision has been misused in India, the state is continuing with such a practice to ensure state security and maintain public order. Government, law enforcement agencies, judiciary and civil society groups must work together to reduce the instances of misuse of the preventive detention laws.

Tags:
Polity

Keywords:
Preventive detention article 22 human right National Security Act Public Safety Act UAPA

Syllabus:
General Studies Paper 2

Topics:
Indian Constitution