Preventive Detention is the practice of incarcerating accused individuals before trial on the assumption that their release would not be in the best interest of society—specifically, that they would be likely to commit additional crimes if they were released. The grounds for Preventive detention are:
- Security of state.
- Maintenance of public order.
- Maintenance of supplies and essential services and defense.
- Foreign affairs or security of India.
Preventive detention is also used when the release of the accused is felt to be detrimental to the state’s ability to carry out its investigation. In some countries, the practice has been attacked as a denial of certain fundamental rights of the accused.
In A.K. Gopalan vs. the State of Madras, it was held that there is no authoritative definition of Preventive detention. The detention, the aim of which is to prevent a person from doing something which is likely to endanger the public peace or safety or cause public disorder is known as preventive detention. It is an abnormal measure whereby the executive is authorized to impose restrain upon the liberally of a man who may not have committed a crime but who it is apprehended, is about to commit acts that are prejudicial to the public safety etc.
In India, preventive detention is for a maximum period of three months, a limit which can be changed by the Parliament. According to Preventive Detention Act 1950, it can be extended beyond three months up to a total of twelve months, only on the favourable recommendation of an advisory board, made up of High Court judges or persons eligible to be appointed High Court judges.
Preventive detention in India dates from British rule in the early 1800s and continued with such laws as the Defence of India Act, 1939 and the Preventive Detention Act 1950.
India is one of the few nations in the world with a constitution that provides for preventative detention in times of peace without the protections that are considered necessary in other countries to protect fundamental human rights.
To prevent the misuse of Preventive Detention, some safeguards are mentioned in the constitution:
- A person may be taken into custody only for 3 months at the first instance.
- The detainee is entitled to know the grounds of his detention. However, if the grounds of detention are in the public interest the State may refuse to divulge them.
- The detaining authorities must give the detainee the earliest opportunities for making a representation against the detention.
These safeguards are made to minimize the misuse of detention. It is because of these safeguards have made space in the constitution.
The philosophy lying behind detention is the safety of the community at large but may create an atmosphere that affects the community in general and liberty of the person in particular. India has been facing quite many rebels on the grounds of gender, caste, race, religion, etc since independence and ever before which has been highly effective in preserving its dignity and autonomy. Through these preventive detention methods, we are somewhere preserving it. Although the preventive detention laws are not completely just and fair and reasonable and need some alteration to fit exactly what the country requires within the scope to the right to life and liberty.
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