Context:
Observing that preventive detention is a draconian measure, Supreme Court has held that such orders must reflect an independent application of mind by the detaining authority
Preventive Detention:
- Preventive Detention – It refers to the detention of a person without trial and conviction by a court.
- Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the near future.
- Legislative competency –
- Parliament has exclusive authority to make a law of Preventive Detention on defence, foreign affairs and security of India.
- Both Parliament and state legislatures, can concurrently make a law for reasons connected with security of a state, maintenance of public order etc.
- Constitutional Provisions – Article 22 (4) to 22 (7) grants protection to persons who are arrested or detained under a law providing for preventive detention
- No detention beyond 3 months unless such detention is approved by the Advisory Board.
- The detaining authority must communicate, as soon as may be, to the detenu, the grounds for such detention.
- The detenu must be afforded the earliest opportunity of making a representation against the order of detention.
- Laws providing for Preventive Detention – National Security Act 1980, Unlawful Activities (Prevention) Amendment Act, 2019
Advisory Board:
- Mentioned in – Article 22(4) of the Constitution
- Comprises – Any persons who have been or qualified to be appointed as judges of High Court.
- Parliament can lay down procedures to be followed by an Advisory Board during an inquiry.
Important judgments on Preventive Detention:
- AK Gopalan vs State of Madras (1950) – Supreme Court upheld constitutional validity of Preventive Detention Act of 1950.
- Mariappan vs. The District Collector and Others (2014) – Court held that the aim of detention and its laws is not to punish anyone but to stop certain crimes from being committed.
- Nenavath Bujji etc vs State of Telangana (2024) – Inability on the part of the state’s police machinery to tackle the law-and-order situation should not be an excuse to invoke the jurisdiction of preventive detention
Source: TOI
Previous Year Question
In essence, what does ‘Due Process of Law’ mean?
[UPSC Civil Service Exam – 2023 Prelims]
(a) The principle of natural justice
(b) The procedure established by law
(c) Fair application of law
(d) Equality before law
Answer: (c)