Preventive detention involves detaining an individual without a formal trial when there are concerns about potential harm or unlawful activities, even if there isn’t enough evidence for a trial. The Indian Constitution allows for preventive detention to protect state security, public order, essential services, and other national interests. To prevent abuse, the Constitution includes safeguards, such as a maximum detention period of three months, the right to be informed of detention grounds (with exceptions), and the right to make a representation against the detention order.
What Is Preventive Detention?
Preventive detention refers to the act of detaining an individual without a formal trial. Its primary objective is to preemptively halt a person from engaging in activities that are deemed potentially harmful or unlawful, based on specific grounds established by the Constitution. Preventive detention is typically employed in situations where the available evidence is insufficient to bring formal charges or secure a conviction through legal means. However, it is believed that the individual may still pose a threat and should be detained.
Constitutional Provisions on Preventive Detention
The Constitution grants the Legislature the authority to enact laws related to preventive detention for reasons linked to state security, the preservation of public order, the maintenance of essential community supplies and services, or for defense, foreign affairs, or the security of India. To prevent the abuse of this power, the Constitution incorporates certain safeguards, which constitute fundamental rights protecting against arbitrary detention. Article 22 of the Constitution outlines these
- The government can detain a person in custody for a maximum of three months under preventive detention. If a longer detention period is sought, the government must obtain a report from an Advisory Board. This board examines the documents submitted by the government and the accused to determine whether the detention is justified.
- The detained individual must be promptly informed of the grounds for their detention, except for information that the detaining authority deems contrary to the public interest to disclose.
- The detained person must be given the earliest opportunity to make a representation against the detention order. Parliament has the authority to prescribe, through legislation, the maximum duration of detention under preventive detention laws.
In India, the Preventive Detention Act of 1950 was enacted by Parliament to govern preventive detention. However, this act came to an end in 1969. Subsequently, due to the resurgence of security concerns, Parliament introduced the Maintenance of Internal Security Act (MISA) in 1971, which contained provisions similar to those in the 1950 Act. In 1974, Parliament passed the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), an economic adjunct to MISA. While MISA was repealed in 1978, COFEPOSA remained in effect. Furthermore, in 1980, the National Security Act (NSA) was enacted, allowing a maximum detention period of six months from the date of detention.
In 1984, the Congress Government revived preventive detention measures, akin to the infamous TADA, in response to events in Punjab. However, TADA’s misuse led to the unjust incarceration of numerous innocent individuals, with only a small percentage actually being convicted.
On October 24, 2001, the government introduced the Prevention of Terrorism Ordinance (POTO) to address the need for a more stringent law to combat terrorism following the lapse of TADA in 1995. The Lok Sabha passed POTA on March 18, 2002, although the Rajya Sabha rejected the bill. Eventually, POTO became POTA on March 26, 2002, following its passage in a joint session of Parliament.
It’s worth noting that POTA faced significant resistance, with twenty-one states declining to use it. The Hindu, in an editorial titled “From POTO to POTA,” emphasized the necessity of preventing POTA from being abused and exploited similarly to its predecessor, TADA. However, on September 17, 2004, the UPA Government repealed POTA through an ordinance, signaling a change in the country’s approach to preventive detention.
Also, read: