How Preventive detention works?

Context

As Telangana gears up for Assembly polls next month, its stringent preventive detention law is under the spotlight. In at least three separate instances, the Supreme Court has red-flagged the Telangana government’s use of the law.

What is preventive detention?

Preventive detention means detention of a person by the state without trial and conviction by court, but merely on suspicion. The detention could be up to a year unless extended.
In countries such as Britain, United States and Canada, preventive detention is a wartime measure. In India, the Constitution itself makes space for preventive detention.
Part III of the Constitution, which deals with fundamental rights, also gives the state the power to suspend these rights for preventive detention.
Despite its emphasis on individual liberty, Part III, which forms the basic structure of the Constitution that cannot be amended, also contains provisions for preventive detention under Article 22.

Under what laws can the state order preventive detention?

Among central legislations, the National Security Act, the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) are examples of laws under which preventive detention can be ordered.
As many as 25 states also have preventive detention legislation.

What are the powers of the state?

Article 22 prescribes protection against arrest and detention but has a major exception. It says in Article 22 (3) (b) that none of those safeguards apply “to any person who is arrested or detained under any law providing for preventive detention.” The remaining clauses — Article 22(4)-(7) — deal with how preventive detention operationalises.
First, the state, which would be the district magistrate, would issue an order to detain a person when it is necessary to maintain “public order.” The state can delegate this power to the police as well.
If the detention ordered is for more than three months, under Article 22(4), such a detention requires the approval of an Advisory Board. These Boards are set up by states and normally consist of retired judges and bureaucrats.
Article 22(5) of the Constitution mandates that the state is required “as soon as maybe,” to communicate to the detainee the grounds of detention and “shall afford him the earliest opportunity of making a representation against the order.”
However, even this safeguard is diluted to a certain extent by Article 22(6), which says that nothing in clause 5 shall require the state to “disclose facts that the state considers to be “ against the public interest to disclose.”

How do courts assess detention orders?

For preventive detention, there are very narrow grounds of judicial review because the Constitution emphasises the state’s “subjective satisfaction” when ordering a detention.
A judicial review is limited to whether the Advisory Board applied its mind, considered all material facts and whether the state showed obvious malafide in ordering detention.
Because judicial review is limited, courts often strike down detention orders on technical grounds, such as delay in the decision of the advisory board, communication of grounds in a timely fashion and in a language that the detainee understands, etc.

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