Supreme Court’s Decision on Preventive Detention

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Supreme Court’s Decision on Preventive Detention

Recently the Supreme Court ruled that potential apprehension of violation of law and order cannot be a ground for preventive detention.

  • The Supreme Court, in Banka Sneha Sheela v State of Telangana, has held that the provision of preventive detention cannot be invoked on the ground of probable apprehension of breach of ‘law and order’.
  • A preventive detention order can be passed only if the detention is likely to adversely affect the maintenance of public order.
  • The Supreme Court held that ‘violations of public order’ and cases affecting it, affect the majority of the public, while on the contrary ‘violations of law and order involve matters of less serious nature.
  • Also, preventive detention should be within the scope of Article 21 (Due process of law), and it should be consistent with Article 22 (Protection against arbitrary arrest and detention).

About preventive detention:

‘Preventive detention’ is the action of taking into custody the person concerned on the basis of suspicion of having committed a probable offense or improper act, which is enforced by Section 151 of the Code of Criminal Procedure (Cr.P.C), 1973.

Constitutional Provisions:

  • Article 22 of the Constitution provides protection to persons arrested or taken into custody. There are two types of detention – punitive and preventive.
  • Punitive detention refers to the punishment of a person for an offense committed by him after trial and conviction in a court of law.
  • Whereas, in preventive detention a person is taken into custody without trial and conviction by the court.
  • Article 22 has two parts—the first part deals with matters of ordinary law, and the second part deals with matters of preventive detention law.
  • This article of the constitution provides certain rights to the person-

Rights granted under punitive detention

  • To be informed at the earliest of the reasons for the arrest, to consult the legal practitioner of his interest and to obtain defence. Rights to appear before Magistrate within 24 hours excluding travel time.
  • However, these rights are not granted to any for the time being an enemy alien citizen or person detained under preventive detention laws.

Rights granted under preventive detention:

  • The detention of a person cannot exceed 3 months, unless an advisory board presents sufficient cause for extended detention.
  • The prisoner should be given an opportunity to make a representation against the detention order.

Some of the major ‘Preventive Detention Laws’ made by Parliament

  • The Preventive Detention Act, 1950 which expired in the year 1969.
  • The Maintenance of Internal Security Act (MISA), 1971, was repealed in the year 1978.
  • Foreign Exchange Protection and Prevention of Smuggling Activities Act (COFEPOSA), 1974.
  • National Security Act (NSA), 1980
  • The Prevention of Black Marketing and Maintenance of Supply of Essential Commodities Act (PBMSECA), 1980.
  • The Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985, was repealed in the year 1995.
  • Prevention of Illegal Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988.
  • The Prevention of Terrorism Act (POTA), 2002 was repealed in the year 2004.

Source – The Hindu

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