Why is it in the news?

• The Telangana’s upcoming Assembly polls have brought its preventive detention law into focus.
• The Supreme Court has expressed concerns regarding Telangana’s use of the law in at least three instances.

More about the news

Preventive Detention

• It refers to the detention of a person by the state without trial, based solely on suspicion.
• This detention can last up to a year unless extended.
• It’s different from pre-trial detention: preventive detention is for someone who hasn’t necessarily committed a crime, while pre-trial detention involves an undertrial accused of a crime.

Global Context

• Countries like Britain, US, and Canada generally employ preventive detention during wartime.
• In India, the Constitution itself provides for preventive detention. Part III of the Constitution, which addresses fundamental rights, also permits the suspension of these rights for preventive detention purposes.

Legislative Framework

• Central legislations such as the National Security Act and Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) enable preventive detention.
• 25 states, including Telangana, have their preventive detention laws.
• Telangana’s law is notably exhaustive, addressing a wide range of potential offenders, from bootleggers to cybercrime offenders.

State’s Powers in Preventive Detention

• Derived from Article 22 of the Constitution.
• The state, typically via the district magistrate, can issue a detention order to maintain “public order.”
• Detentions lasting more than three months require Advisory Board approval. These boards often consist of retired judges and officials.
• Detainees typically can’t have legal representation before the Board.
• If approved by the Board, the detention order can be challenged in court.
• The state must promptly inform the detainee of the detention grounds and allow them to challenge the order.
• However, the state can withhold certain information if it’s against the public interest.

Judicial Review of Detention Orders

• Grounds for judicial review are limited.
• The primary criterion for review is the state’s “subjective satisfaction” in ordering the detention, not the fundamental rights outlined in the Constitution.
• Courts usually evaluate if the Advisory Board was thorough in its assessment and if the state had any clear biases.
• Often, courts nullify detention orders based on procedural issues like delays or miscommunication of detention reasons.

 Way Forward

• Telangana’s preventive detention law has garnered attention due to its potential misuse. The Supreme Court has raised concerns, underscoring the balance between state security and individual rights.