Preventive Detention

• Preventive detention: Detention of a person to prevent them from committing a possible offence in the future, rather than punishing them for an offence already committed.
• Preventive detention vs punitive detention: Preventive detention is preventive in nature, whereas punitive detention follows an offence and aims at punishment.

Constitutional Provisions

• Article 22: Provides safeguards against arrest and detention and deals specifically with preventive detention.
• Article 22(1) and 22(2): Provide safeguards to ordinary arrested persons, including the right to consult and be defended by a legal practitioner and production before a magistrate within 24 hours, subject to constitutional exceptions.
• Article 22(3): These safeguards under clauses (1) and (2) do not apply to:
  • Enemy aliens.
  • Persons detained under preventive detention laws.
• Article 22(4): A person cannot ordinarily be detained under a preventive detention law for more than three months unless the constitutional conditions for longer detention are satisfied, including the opinion of an Advisory Board where required.
• Article 22(5): The detained person must be informed, as soon as may be, of the grounds of detention and given the earliest opportunity to make a representation against the detention.
• Article 22(6): The authority may withhold facts considered against the public interest to disclose.
• Article 22(7): Parliament may prescribe circumstances and classes of cases for detention beyond three months without an Advisory Board opinion, subject to constitutional conditions.

Legislative Powers

• Parliament: Can legislate on preventive detention for reasons connected with defence, foreign affairs, or the security of India.
• Both Parliament and State Legislatures: Can legislate on preventive detention for maintaining public order or maintaining supplies and services essential to the community, subject to constitutional distribution of powers.

Important Prelims Facts

• It is an exception to certain ordinary safeguards available to arrested persons.
• The three-month period under Article 22(4) is not an unconditional maximum in every case; the Constitution allows specified exceptions.
• Grounds of detention must be communicated as soon as may be, but facts considered against the public interest to disclose may be withheld.
• The detained person must receive an opportunity to make a representation against the detention.
• It is not the same as detention following conviction by a criminal court.

Prelims MCQs with Explanations

Q1. With reference to preventive detention in India, consider the following statements:

1. It aims to prevent a person from committing a possible offence in the future.
2. It is imposed only after conviction by a criminal court.
3. Article 22 deals with detention.

Which of the statements given above is/are correct?

(a) 1 only

(b) 1 and 2 only

 (c) 1 and 3 only

 (d) 1, 2 and 3

Answer: (c) 1 and 3 only

Explanation: It is intended to prevent possible future conduct, not to punish a person after conviction. Article 22 contains constitutional provisions relating to preventive detention.

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