WHAT IS PREVENTIVE DETENTION?

 

Preventive detention is basically detention without trial in order to prevent a person from committing a crime .The law and issue concerning and connected is an issue of personal liberty and by default an issue pertaining to human rights.

• The supreme court in Alijav vs District Magistrate ,Dhanbad , stated that while criminal proceedings relate to punishing of a person for an offence committed by him, preventive detention does not relate to an offence.
• In Ankul Chandra vs Union of India , the court stated that preventive detention is is not to punish but prevent the detenue  from doing anything that is prejudicial  to the security of state .
• The power to make preventive detention laws in India comes from the constitution itself  which empowers the parliament to make such laws for reasons connected with Defence, Foreign  Affairs  or the Security of India . Parliament has exclusive Legislative powers.
• The Union and the States have concurrent legislative powers for reasons connected with the security of a state , the maintenance of supplies and services essential to the community.
• Such detention involves custody without any criminal trial, moreover these laws need not follow the procedural guarantees which are fundamental to the detention of an individual in the normal course.
• The parliament has enacted several laws in this respect which in addition to the notorious preventive detention act include:

1. The national security act section 13, 1980 ( provides for administrative detention for a period of up to one year).
2. The conservation of Foreign Exchange and prevention smuggling activities act 1974 (COFEPOSA)(provides for administrative detention for a period up to six months).
3. The prevention of black marketing and maintenance of supplies of essential commodities act section 13,1980 (six months).
4. The prevention of illicit Traffic in Narcotic Drugs and Psychotropic Substance Act section 10, 1988.

Article 22 was in fact a measure to protect , rather than curtail , the right to life and personal liberty . Mr Seervai  discusses this in his commentary , to conclude that perhaps it would have made better sense to have the first two clauses in Article 22 as part of Article 21, making a  separate article for the exclusions. Looking at what happened subsequently , a differently drafted article 21 might have led to a differently written judgment in the Maneka Gandhi Case . It might have prevented the supreme court from going so far as to incorporate the substantive due process standard that the constituent assembly so painstakingly chose to avoid. Where does Maneka Gandhi leave the due process that Article 22 represented for the constituent assembly and Dr. Ambedkar ? The supreme Court has not considered this question fully, yet, although some seepage of Maneka jurisprudence into Article 22 has definitely resulted.