The recent ruling by the Supreme Court has brought forward a significant discussion on the topic of preventive detention. The court has decided that a preventive detention order can only be issued if it is anticipated that the detained individual is likely to negatively affect public order. This decision also came with directives for government bodies and other courts on how to handle cases of preventive detention.
Criteria for Preventive Detention
The Supreme Court explained that a person may be regarded as a ‘white-collar offender’, indicating their propensity to deceive unsuspecting individuals. However, the issuing of a preventive detention order is reliant on if their deeds adversely influence, or are expected to adversely influence, the preservation of public order.
Understanding ‘Public Order’ in the Context of Preventive Detention
In the context of the preventive detention statute, the term ‘public order’ is confined to preventing public disorder, and its interpretation should not be liberal. The court clarified that while activities like cheating or criminal breach of trust do disrupt ‘law and order’, they can only be said to disturb ‘public order’ if they impact the public or the community at large.
Guidelines for Governments
The state should refrain from arbitrarily resorting to ‘preventive detention’ with respect to every ‘law and order’ issue. These problems should be addressed using the ordinary laws prevalent in the country.
Guidelines for Courts
When evaluating legality under preventive detention, courts should assess if the regular law was sufficient for handling the situation. If the answer is yes, then the detention order becomes illegal. For instance, the court highlighted that two intoxicated individuals fighting on a street is a ‘law and order’ problem and not a ‘public disorder’ issue, thus it does not require preventive detention.
Preventive Detention and Liberty
The notion of liberty is an invaluable right that was hard-fought by our predecessors. If the bounds of preventive detention are not well-defined, the right to liberty will be rendered worthless. Therefore, preventive detention must comply with Article 21 (due process of law) when read with Article 22 (protection against arbitrary arrest and detention) and the particular statute.
Differing Nature of White Collar Crime versus Blue Collar Crime
‘White collar crime’ denotes non-violent, financially motivated offenses committed by individuals, businesses, or government professionals and characterised by deceit or violation of trust. On the other hand, ‘blue collar crimes’ are generally small-scale, committed for immediate gain and may include narcotics production or distribution, sexual assault, burglary or even murder.
Provisions of Preventive Detention as per Indian Constitution
The Indian Constitution’s Article 22 provides protection to individuals who are arrested or detained, covering both punitive and preventive detention. While punitive detention follows trial and conviction in a court, preventive detention involves detaining a person without trial or court conviction. The article presents a set of rights under both punitive and preventive detention, including the right to be informed of the cause for arrest, right to legal assistance, and conditions for detention extension among others.
Legislative Landscape of Preventive Detention in India
Over the years, the Indian Parliament has enacted several laws relating to preventive detention. These include the now expired Preventive Detention Act of 1950, the repealed Maintenance of Internal Security Act of 1971, the National Security Act of 1980, and more. While these laws were seen as necessary, they have also faced criticism for enabling potential arbitrary detentions.
Controversies Surrounding Preventive Detention Laws in India
Despite being an integral part of the Indian Constitution, the preventive detention laws have been a subject of debate and controversy. Critics claim that such laws provide the government with extra-judicial powers and express concerns about potential arbitrary detentions.
Last Modified: February 13, 2024