Clauses (4) to (7) of Article 22 provide the procedure which has to be followed if a person is arrested under the law of ‘Preventive Detention’.
While the object of a punitive detention is to punish a person for what he has already done, the object of preventive detention is not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it. No offence is proved nor is any charge formulated. The sole justification of such detention is suspicion or reasonable probability of the detenu committing some act likely to cause harm to the society or endanger the security of the Government, and not criminal conviction.
No country in the world has made these laws integral part of the Constitution as has been done in India. There is no such law in USA and it was resorted to in England only during war time. Indian Constitution however recognizes preventive detention in normal times also.
The Preventive Detention Acts – The first Preventive Detention Act was enacted by the Parliament on 26th February, 1950. The object of the Act was to provide for detention with a view to preventing any person from acting in a manner prejudicial to the defense of India, the relation of India with foreign powers, the security of India, maintenance of public order or the maintenance of supplies and services essential to the community. Section 3 empowered the Central and the State Governments and certain officers under them to make orders of detention if they were satisfied that it was necessary to detain a person with a view to prevent him from acting in any manner prejudicial to the things mentioned above.
This Act was purely temporary and lapsed on December 31, 1969 but was revived in the form of Maintenance of Internal Security Act, 1971 which was again repealed in 1978. But in less than two years time, Prevention of Blackmarketing and Maintenance of Supplies and Essential Commodities Act was enacted with the object of preventing blackmarketing and hoarding of essential commodities. It requires the detaining authority to furnish grounds of detention within a period of 5 days from the date of detention, extendible to 10 days in exceptional cases. Within 3 weeks the Government is required to place these grounds along with detenu’s representation before the Advisory Board. The Board must submit its report to the Government within 7 weeks from the date of detention. The maximum period for which a person could be detained after confirmation by the Board has been restricted to 6 months from the date of detention.
In 1980 the President issued the National Security Ordinance providing for preventive detention of persons responsible for communal and caste riots and other activities prejudicial to the country’s security. It has now become a law. It provides for detention upto a maximum period of 12 months but doesn’t bar the detenu from challenging the detention.
It was amended in 1984 in order to make it more effective. The amendment limits the scope of judicial review of preventive detention laws considerably.
In A.K. Roy v Union of India, the Supreme Court by 4:1 majority upheld the constitutional validity of the NSA and the Ordinance which preceded the Act.
Constitutional safeguards against Preventive Detention Laws-
- Review by Advisory Board
- Communication of grounds of detention to detenu
- Detenu’s right of representation
Review by Advisory Board: The 44th Amendment Act, 1978, substituted a new clause for clause (4) which reduced the maximum period for which a person may be detained without obtaining the opinion of the Board from 3 months to 2 months.
The Amendment also changed the composition of the Board. It shall be constituted in accordance with the recommendation of the Chief Justice of the appropriate High Court. It shall consist of a Chairman and not less than two other members. The Chairman shall be the sitting Judge of the appropriate High Court and the other two members shall be a sitting or retired Judges of any High Court.
The Amendment abolished the provision for preventive detention without reference to an Advisory Board.
Communication of grounds of detention to detenu: Article 22(5) imposes an obligation on the detaining authority to furnish to the detenu the grounds for detention as soon as possible. The grounds should be very clear and easily understandable by the detenu. It requires that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands, so as to enable him to make a purposeful and effective representation.
The State is however under no obligation to provide the grounds to the detenu prior to his detention.
Reasons why grounds are required to be communicated as soon as possible-
- It acts as a check against arbitrary and capricious exercise of power.
- The detenu has to be afforded an opportunity of making a representation against the order of detention but if the grounds are not supplied to him it is not possible for him to make an effective representation.
Detention of a person already in custody-
The Supreme Court has held in Huidrom Konungjao Singh v State of Manipur, that there is no prohibition in law to pass a detention order in respect to a person who is already in custody for a criminal case.
Detenu’s right to representation: The other right given to the detenu is that he should be given the earliest opportunity to make a representation against the detention order. It means that the detenu must be furnished with sufficient particulars about his detention so as to enable him to make a representation. No inordinate delay, no shortfall in the materials communicated shall stand in the way of the detenu in making an earlier yet comprehensive and effective representation in regard to all the basic facts and materials which may have influenced the detaining authority in making the order of detention depriving him of his freedom.
 AIR 1982 SC 710.
 AIR 2012 SC 2002.