Preventive Detention and Constitution of India
Confinement imposed generally on a defendant in criminal case who has threatened to violate the law while awaiting trial or disposition or of a mentally ill person who may harm himself or others – Black Law Dictionary
It is an anticipatory measure and does not relate to an offence while criminal proceedings are to punish a person for an offence committed by him [Alijan Mja V. District Magistrate, Dhanbad AIR 1983, SC 1130].
The object of Preventive Detention is not to Punish but to intercept to prevent the Detenu from doing something prejudicial to the State. The satisfaction of the concerned authority is a subjective satisfaction in such a manner. [Ankul Chandra Pradhan Vs. Union of India, AIR 1997, SC 2814].
Arrest as laid down in Chapter V of the Code of Criminal Procedure Code 1973 initiates preventive detention which questions one’s right to liberty and freedom.
The Justification for preventive detention is suspicion or reasonable apprehension, reasonable probability of the impending commission of an act prejudicial to the state.
A three – Judge Bench of the Supreme Court in Ahmed Noormohmad Bhatti V. State of Gujarat, AIR 2005 while upholding the validity of the power of the Police under section 151 of Criminal Procedure Code 1973 to arrest and detention of a person, without a warrant, to prevent commission of a Cognizable offence, ruled that a provision could not be held to be unreasonable as arbitrary and therefore unconstitutional merely because the Police official might abuse his authority.
Article 22 provides that the Detenu under the preventive detention law shall have the right to have his representative against his detention reviewed by an advisory board. If the advisory board reports that the detention is not justified, the Detenu must be released forthwith. If the advisory board reports that the detention is justified, the Government may fix the period for detention. The advisory board may conclude its proceedings expeditiously and must express its opinion within the time prescribed by law. Failure to do that makes the detention invalid.
The Constitution (44th Amendment Act 1978) has amended Article 22 and reduce the maximum period for which a person may be detained without obtaining the advisory board from three to two months.
The interpretation of Article 22 Clause 7 Sub clause (a) was best done by the Hon’ble Supreme Court in Sambhu Nath Sarkar V. State of West Bengal, Section 17A of the Maintenance of the Internal Securities Act 1971 contained five heads in relation to which preventive detention could be for a period longer than three months without any reference to an Advisory Board.
The Supreme Court held Section 17 unconstitutional. The court said that Article 22(7) (a) was an exception to Article 22 (4). Thus Article 22(7) (a) could be made use of only in exception to and ordinary case