“Confinement imposed generally on a defendant in criminal case who has threatened to violate the law while awaiting trial or disposition or of a mentally ill person who may harm himself or others.”- Black Law Dictionary.
India has a long history of preventative detention and is one of the few countries with preventative detention legislation. In response to the aim of preventive detention, England adopted emergency measures such as the Realm Act and the Emergency Powers (Defense) Act during World Wars I and II. All of these acts were enacted particularly for emergency purposes during the war, but they also ceased to exist after the fighting was over. Prior to independence, the British government used its power to suppress Nationalist organisations. The legislation governing preventive detention should have expired when India won independence, but the writers of our constitution chose to leave it in place to combat anti-national actions. The first Preventive Detention Act was passed after Independence in 1950. But it was questioned on it’s validity. Where by SC held this act constitutionally valid except some provisions. This act extended till 31st December’1969, being re-enacted seventeen times. As has been observed there is no authoritative definition of the term preventive detention , In England , while explaining the nature of detention under regulation 14B framed under the defense of die realm (consolidation) act 1914 , the judges referred to such expression “Lord finally characterized it as not a punitive but a preventive measure.At present provision pertaining to preventive detention are contained in Article 224. Under Section 151 of The Criminal Procedure Code, 1973 (CrPC) preventive detention is action taken on grounds of suspicion that some wrong actions may be done by the person concerned. Preventive detention, 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.A police officer may arrest a person without a warrant or without the instructions of a Magistrate if he has reason to believe that the person is about to commit an infraction. In some circumstances, Article 22 of the Indian Constitution guarantees protection against arrest and imprisonment. In the case of Prem Narayan v. Union of India, the Allahabad High Court stated that preventive detention is an infringement on an individual’s personal freedom and it cannot be infringed in an easygoing manner; however, despite such warnings, courts most of the time have condoned infringement of liberty, essentially providing no solution for the individual’s affliction.The violation of human rights has started from very beginning of our civilization and custodial torture by law enforcing agencies have remained a persistent feature of our criminal justice system. The goal of Preventive Detention is not to punish, but to intervene to keep the detainee from doing anything harmful to the state. Preventive detention is defined as the practice of imprisoning accused individuals before to trial on the assumption that their release would be detrimental to society and that, if released, they will commit many additional crimes. When the release of the accused is considered to be detrimental to the state’s capacity to undertake its investigation, the measure of preventive detention is also utilized. In a nutshell, preventative detention means that a person is detained without a trial or conviction by a court, based only on the executive authority’s suspicion. In the case of Mariappan v. The District Collector and Others held that the aim of detention and its laws is not to punish anyone but to stop certain crimes from being committed. The most prevalent issue that makes it impractical is that it is too prone to mistake. This was highlighted in the case Natasha Case, who protested against the regressive CAA under UPPA with involvement in Delhi communal rights of February’2020. Even with recent advances in structured professional judgement instruments, we aren’t particularly good at identifying who will recidivate or when. In light of our incompetence at assessing violence risk, the argument goes preventive detention is unconscionable. The argument is that preventing detention necessitates precipitating behavior. Further explanation assumes that the proposed government action is purely based on risk-predicting traits such as a violent gene, an inability to emphasize, or a biological addiction. If such characteristics are linked to the degree of risk entailed by the consistency and proportionality principle. So why shouldn’t detention be permitted? The mechanism that our country follows focuses on how well a person can be punished for a crime rather than focusing on how to tackle the problem first. The judgements are always based on societal privilage and the status of the person ,It does nothing but exploit the marginalized and less privileged . The detention order was overturned by the Hon’ble Supreme Court of India on the grounds that the authority making the detention order failed to apply its mind, as required by the legislation, in the light of detention in two disjunctive reasons. In situations of preventative detention, the most precious right of a person, namely the right to personal liberty, is at issue, necessitating the necessity for the government to carefully and meticulously adopt legislation concerning preventive detention. Ram Manohar Case, court attempted to distinguish between concepts of security of state “public order” and “law and order” . Justice Midayatullah underscored that only most severe of act could justify preventive detention. Article 22 of the Indian Constitution provides protection against arrest and detention in certain cases. In Shri Pawan Kharetilal Arora case a person was imprisoned for nine months on the basis of twenty-four fake cases. The Bombay High Court held that, despite the fact that the grounds for confinement were based on gross errors, and the detaining authority made a serious mistake that stunned judicial conscience, it acknowledged the authority’s apology and held that the authority acted in accordance with some basic honesty, and thus was entitled to protection under this section.
Since then, the act’s lifespan has been extended at least six times. The Indians have had sufficient chance in the last eleven years to re-evaluate the necessity of retaining this tool of social control. Preventive detention can no longer be considered a transitory measure; rather, it must be accepted as a permanent feature of India’s democratic experience. Apart from preventive detention methods and protections, citizens must follow the requirement of prohibiting crime from spreading further and appropriately support preventive detention, although cases indicate unlawful detention stating mechanism for prevention of cognizable act. The Supreme Court of India declared in the case of Rekha v. State of Tamil Nadu that preventive detention is generally repulsive to democratic principles and odious to the rule of law. There is no similar statute in the United States or England (with the exception during wartime). Since, in any case, Article 22(3)(b) of the Indian Constitution grants preventive detention, we cannot hold it illegal; however, we must limit the intensity of preventive detention within very narrow limits, or we will encroach on a person’s entitlement to liberty guaranteed by Article 21 of the Indian Constitution, which was won after a long, laborious, and notable battle.
It is evident that legislation related to colonial past must now be changed or revised throughout time in some situations. There is now a need for security and human rights to coexist. It is now necessary to assess the rules and regulations. The state must accept responsibility for compensating the acquitted detainee for losses to life, health, money, and so on. A suitable mechanism should be put in place to ensure that detainees’ rights are protected during their custody. If charges of coercive conduct are levelled, they should be regarded seriously and followed by a thorough inquiry by an authorized authority. An impartial legal authority should also be established to investigate similar situations. It is equally critical that the detainees’ rights be respected and that the reason for their incarceration be made plain to them as soon as feasible Even if the standard of proof for preventive detention is established pursuant to consistency and proportionality principles, dangerousness remains a vague term.
A developing country must protect its limited resources while also maintaining peace and order. Since independence, India has had several insurgencies based on gender, class, ethnicity, religion, and other factors. Through the employment of preventive detention tactics and national security legislation, India has been generally successful in protecting its independence, dignity, and autonomy. The preventive detention rules are not entirely just and reasonable, and therefore require certain revisions or modifications to meet within the scope of the Right to Life and Liberty, The core notion of human rights. India is a massive country with lengthy boundaries and many identities, and as a result, the surrounding countries are hostile to it. Under these situations, it is the obligation of these security-related regulations, acts, and provisions to maintain India’s independence, dignity, and sovereignty.
The fact that these laws have been abused cannot be overlooked and does not render the laws null and invalid. These laws have stopped crimes from occurring, which would have resulted in tragedies. The country’s preventive detention laws can be said that the intentions of enacting such a law are definitely to prevent anti-social elements from causing hindrance in society, which may lead to effects on citizens’ lives, but these laws must be applied with utmost care and precaution to avoid any controversy. There should be a process in place to ensure that all of the rights guaranteed by the Indian Constitution are available to detainees at all times throughout their incarceration. In this regard, a moral evaluation must be made since, on one end of the spectrum, broad sections of society’s lives and personal freedom must be respected, while, on the other end, the individual detainer’s life and personal freedom must be protected.
The simplicity with which preventive detention has been invoked over time presents the need before the Indian law framework to create protection to guarantee fair procedure before restraining the liberty of people.
“How come life in prison doesn’t mean life? Until it does, we’re not ready to do away with the death penalty. Stop thinking in terms of “punishment” for a minute and think in terms of safeguarding innocent people from incorrigible murderers. ”
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