GS Paper 2: Structure, Organization and Functioning of the Executive and the Judiciary—Ministries and Departments of the Government.
Image Courtesy: The Hindu
What is preventive detention?
- Preventive detention means to detain a person so that to prevent that person from commenting on any possible crime or in other words preventive detention is an action taken by the administration on the grounds of the suspicion that some wrong actions may be done by the person concerned which will be prejudicial to the state.
- Preventive Detention is the most contentious part of the scheme of fundamental rights in the Indian constitutions.
- Section 151 of the Code of Criminal Procedure, empowers the police to make preventive arrests to prevent the commission of “any cognisable offence”.
- If required preventive detention can be extended beyond 24 hours “under any other provisions of Section 151 of CrPc Code” or of any other law.
What are the constitutional provisions for preventive detention?
- Article 22 grants protection to persons who are arrested or detained. There are two types of detention i.e. punitive and preventive.
- Punishing a person for an offence committed by him after trial and conviction in a court is known as Punitive detention.
- Detaining a person without trial and conviction by a court is known as Preventive detention.
- Article 22 has two parts—the first part deals with the cases of ordinary law and the second part deals with the cases of preventive detention law.
What are the rights available under punitive detention but not under preventive detention?
Following rights not available to a person arrested or detained under preventive detention law but available to a person arrested or detained under a punitive detention law
- Right to be informed of the grounds of arrest.
- Right to consult and be defended by a legal practitioner.
- Right to be produced before a magistrate within 24 hours, excluding the journey time.
- Right to be released after 24 hours unless the magistrate authorizes further detention.
What are major differences between Preventive and punitive detention?
|Preventive Detention||Punitive Detention|
|1. Section 151 of The Criminal Procedure Code, 1973 (CrPC), defines preventive detention as detention of a person without trial and conviction by a court.||1.In case of Punitive detention person is punished for an offence committed by him after trial and conviction in a court.|
|2.Preventive detention is used to prevent a person from committing an offence in the near future.||2.It punishes a person for an offence.|
|3.It is taken as precautionary measure and based on suspicion.||3.It punishes for the crime committed.|
|4. Right of personal liberty guaranteed by Article 19 or Article 21 is not available to detainee under preventive detention.||4. Article 19 or Article 21 guarantee right of personal liberty to detainee under punitive detention.|
Key findings from latest crime statistics released by the National Crime Records Bureau
- Rise in Preventive detentions in 2021 by 23.7% compared to 2020
- Numbers of people placed under preventive detention is over 1.1 lakh.
- Number of detentions under the National Security Act are 483 of which almost half (241) were either in custody or still detained as of the end of 2021.
- A total of over 24,500 people placed under preventive detention were either in custody or still detained as of the end of last year — the highest since 2017.
- In 2017, the NCRB’s Crime in India report found that a total of 67,084 persons had been detained as a preventive measure that year.
- The number of persons placed under detention has been increasing steadily since 2017 — to over 98,700 in 2018 and over 1.06 lakh in 2019 — before dipping to 89,405 in 2020.
- NCRB data showed that the number of people arrested in preventive detention under the National Security Act had dipped significantly compared to the year before.
- Preventive detentions under the NSA peaked in 2020 at 741. This number dropped to 483 in 2021.
- In 2017, 54.2% of persons detained as such were either in custody or still detained as of the end of the year. In 2021, this number decreased to 49.8%, with more than half of those preventively detained released.
- Among other laws under which the NCRB has recorded data on preventive detentions are the Goonda Act (State and Central) (29,306), Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (1,331), and a category classified as “Other Detention Acts”, under which most of the detentions were registered (79,514).
What are the reasons for the current rise of preventive detentions?
- Consistent use of “Other Detention Acts” category as several laws like the Unlawful Activities (Prevention) Act and Maharashtra Control of Organised Crime Act since 2017, for making preventive detentions.
- District magistrates and the police are commonly using preventive detentions to control law and order in emerging communal clashes or clashes between any two communities even when it might not always lead to public disorder.
- Huge pendency in courts made it difficult to release person placed under preventive detention as minimum time taken to challenge detention order is more than a year.
What is the recent SC ruling regarding preventive detention?
- The Supreme Court bench observed that since preventive detention affect the liberty of an individual it is exceptional power accorded to the state and they should be used sparingly. Preventive detention powers should not be used to control ordinary law and order problems.
- Supreme Court ruled that to invoke a public detention law against someone, it must affect the public order and mere threat of public order must not led to public detention. Expression public order can not be used liberally in the context of preventive detention statute.
- The Supreme Court added that preventive detention is a necessary evil only to prevent public disorder.
- While arresting person under preventive detention Court must ensure that the facts brought before it directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large.
- SC said that there must be public disorder i.e. it must affect the community or the public at large to apply preventive detention Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects ‘law and order’ should not led to preventive detention.
Sources:-The Hindu; Legal service India
2. Legal Service India:-https://bit.ly/3evzYVb