Preventive Detention

In April, 2024 the Jammu and Kashmir High Court ruled in favor of releasing Jaffar Ahmad Parray, who had been detained under the state’s Public Safety Act, 1978 (PSA).

What is PREVENTIVE DETENTION?

1. Preventive detention is, when the government locks someone up because they think that person might commit a crime. It's a way to stop bad things from happening, even before they do.

• In other words, it is the act of detaining or imprisoning a person without a trial or conviction by a court. It is not meant to punish someone for a past offense but to prevent them from committing a future crime.

2. The grounds for preventive detention include ensuring the security of the state, maintaining public order, safeguarding essential services and defense, and protecting foreign affairs or the security of India.

Constitutional Safeguards

To prevent misuse of preventive detention, the Constitution has some safeguards under Article 22:

1. Time limit: Individuals can only be held in preventive custody for a maximum of 3 months initially. If the detention extends beyond this period, it must be referred to an Advisory Board.
2. Reason for Detention: Detainees are entitled to be informed of the grounds for their detention, although the state may withhold this information if it deems it in the public interest to do so.
3. Right to Challenge: Detaining authorities must afford the detainee the earliest opportunity to make representations against their detention.

Arguments Supporting Preventive Detention

1. Detaining individuals involved in activities like sedition or spying helps safeguard the integrity and sovereignty of the nation.
2. Given the threats of internal and external security threats facing India, such as terrorism and insurgency, preventive detention is deemed essential to address these challenges effectively.
3. It also helps to keep the peace by stopping riots, religious conflicts, and other public disturbances.
4. And just having these laws in place, even if they're not used all the time, can scare people who are thinking about doing something illegal, and stop them from actually doing it.

Arguments Against Preventive Detention

1. These laws come from the time when the British ruled India, and they were used to silence those fighting for freedom. This makes you wonder if they really belong in a democracy.
2. Unlike other countries that only use these laws during wars, India uses them even in peacetime. This raises questions about if they're really needed and if they're being used too much.
3. These laws seem to go against the basic rights guaranteed by our Constitution, which could lead to the government misusing its power.
4. Letting the police arrest people just because they think they might do something wrong, without any real proof, is a bit worrying and could lead to unfair arrests.

To avoid problems with locking people up before they've done anything wrong, we need stronger rules to make sure this power isn't abused. Judges should keep a close eye on the government to make sure they're following the law. It's important to find a middle ground between keeping the country safe and protecting people's freedoms.

Q. Consider the following statements:

Statement-I: A person arrested under Public Safety Act,1978 (PSA) will not get the procedural protection under Article 22.

Statement-II: Protection against arrest and detention is available to all the persons except those who are arrested under a preventive detention law or they are enemy alien.

Which one of the following is correct in respect of the above statements?

(a) Both Statement-I and Statement-II are correct and Statement-II is the correct explanation for Statement-I

(b) Both Statement-I and Statement-II are correct and Statement-II is not the correct explanation for Statement-I

(c) Statement-I is correct but Statement- II is incorrect

(d) Statement-I is incorrect but Statement-II is correct

Ans. A

 

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