(C): Unsplash
Preventive detention is a special and highly speaking controversial legal procedure under which a person is imprisoned not due to the crime committed, but due to suspicion of committing an act that is prejudicial to the state. In India, even though the Constitution permits such under the particular circumstances, it also offers powerful guarantees to guard personal freedom.
Unlike punitive detention, Preventive Detention Laws allow authorities to hold individuals without a formal trial for a limited period. Nonetheless, this is not an absolute power. The state has to follow strict procedural rules to allow it to avoid the misuse of power as prescribed in Article 22 of the Indian Constitution.
A fundamental safeguard is the right to Legal Representation. Even though a detainee is not entitled to appear in front of the Advisory Board with a lawyer, he/she has the right with absolute authority to seek the services of a lawyer to plan his/her defense as well as submit a representation against detention order.
Authorities are legally mandated to communicate the Grounds of Detention to the detainee. This will have to be done within the shortest time possible, preferably within 5 days, to allow the person to make a good case against the order. In case the reasons are unclear or take a long time, the detention may be questioned in the court.
To prevent indefinite incarceration, any detention extending beyond three months requires an Advisory Board Review. This is a High Court board that reviews the existence of the adequate cause of further detention.
Note: Preventive detention should be used with extreme care because personal liberty is a fundamental right, says one of the recent law commentaries.
Official Bar & Bench X (Twitter) Feed
Normally, an individual may not be held a period exceeding three months unless a period is approved by an Advisory Board. The maximum threshold is a matter of particular state regulations (e.g., NSA, PASA).
Yes, the application of writ of Habeas Corpus can be made in the High Court or Supreme Court to question the validity of the detention.
Yes, Article 22(5) mandates that the authority must communicate the grounds of detention to you as soon as possible.
No. Police custody occurs when one is arrested of a certain crime in order to question the accused. Preventive custody is the one which is used to avoid a crime later and it does not require a trial.
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