Context:
The Supreme Court of India has established new standards for preventive detention through its ruling in the 2024 case, Jaseela Shaji vs the Union of India. This pivotal decision was in response to an appeal against a preventive detention order, which was initially upheld by the Kerala high court under the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, 1974.
Relevance:
GS II: Polity and Governance
Dimensions of the Article:
- New Standards for Preventive Detention
- About Preventive Detention in India
New Standards for Preventive Detention
- Mandatory Documentation: The Supreme Court mandates that detaining authorities must provide detainees with all documents used as a basis for detention. Non-compliance with this requirement results in the invalidation of the detention.
- Protection of Personal Liberty: Emphasizing personal liberty as a paramount constitutional right, the Supreme Court declared that failing to furnish all necessary documents for a detainee to effectively challenge their detention breaches Article 22(5) of the Constitution.
- Prevention of Arbitrary Detention: Authorities are tasked with actively preventing arbitrary actions and upholding the rights of detainees throughout the detention process.
- Accessibility of Information: All documents must be provided in a language understandable to the detainee to ensure they can fully comprehend the reasons for their detention.
- Timely Communication: The authorities are responsible for ensuring that all communications related to the detention are conveyed promptly, utilizing available technology to minimize delays.
About Preventive Detention in India
- As the term suggests – Preventive detention helps to prevent a person from committing a crime.
- Article 22 deals with 2 kinds of detentions:
- Preventive
- Punitive
- Article 22 (3) (b) of the Constitution allows for preventive detention and restriction on personal liberty for reasons of state security and public order.
- According to Article 22 (4)– in case of preventive detention as well, the person being detained should be informed of the grounds of arrest, however, in case the authorities consider that it is against the public interest to disclose certain facts, they need not reveal them.
- The person cannot be detained under preventive detention for more than 3 months unless permission to do so has been granted by an advisory board consisting of 3 judges of the Supreme Court.
- The other way by which the period of detention can be extended beyond 3 months is if the Parliament prescribes a law for it.
- Acts by the Parliament which provide for extension of Preventive detention period beyond 3 months:
- National Security Act (NSA) 1980;
- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) 1974;
- Unlawful Activities Prevention Act (UAPA) 1967, etc.
- Many State legislatures have enacted similar laws that authorize preventive detention.
Criticisms of Preventive detention
- Preventive detention becomes a human rights concern as there have been various incidents of misuse of such laws in India.
- Preventive detention represents the police power of the State.
- No other democratic country mentions preventive detention in its constitution and such laws come into effect only under emergency conditions in democratic countries.
The argument in favour of Preventive detention
- Arbitrary action the State is prevented in India as the areas in the context of which Preventive detention laws can be made are laid down in the 7th Schedule of the Constitution itself.
- In the Union list – laws for Preventive detention can be enacted only for reasons connected with Defence, Foreign Affairs, or the Security of India.
- In the Concurrent list – laws for Preventive detention can be enacted only for reasons connected with Security of a State, the Maintenance of Public Order, or the Maintenance of Essential Supplies and Services.
-Source: The Hindu
