What is preventive detention?, Pg8

Key Highlights:

• Delhi Police detained over 5,000 protesters attempting to reach Jantar Mantar, leading to a nationwide crackdown.
• The Supreme Court, on October 11, directed the Centre and Delhi Police to ensure free movement of people, subject to law and order.
• Preventive detention involves detaining a person without trial or conviction to prevent future offenses, based on public order, state security, or law and order.
• The National Security Act, 1980 (NSA) allows preventive detention for activities prejudicial to India's defense, foreign relations, or state security.
• Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), replacing Section 144 of the Code of Criminal Procedure, 1973, empowers magistrates to issue prohibitory orders to prevent immediate harm or public disturbance.

Detailed Insights:

• The recent detentions in Delhi included political leaders, former Chief Ministers, lawyers, journalists, students, and activists.
• Preventive detention originated from colonial laws like the Rowlatt Act, 1919, and the Defence of India Act, 1939, used to suppress dissent.
• Post-independence, India enacted the Preventive Detention Act, 1950, followed by the Maintenance of Internal Security Act (MISA), 1971, which was repealed in 1978.
• Other laws like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974, and the Unlawful Activities (Prevention) Act (UAPA), 1967, also include preventive detention provisions.
• The Supreme Court's Maneka Gandhi v. Union of India (1978) judgment established that procedures restricting personal liberty must be just, fair, and reasonable.
• The October 11 Supreme Court order specifically directed normal operation of Delhi Metro and railway services and availability of internet services.
• The Court emphasized that there should be no unlawful detention and all detentions must follow established legal procedures.
• Judicial pronouncements, such as Babulal Parate v. State of Maharashtra (1961) and Khudiram Das v. State of West Bengal (1975), have stressed that these powers are not unlimited and require communication of grounds.
• In Mazdoor Kisan Shakti Sangathan v. Union of India (2018), the Supreme Court ruled against a complete ban on protests, advocating for regulation instead.
• The Shaik Naznen v. State of Telangana (2022) case reiterated that preventive detention powers are exceptional and not to be exercised routinely.
• The "golden triangle" of Articles 14, 19, and 21 of the Constitution ensures equality, freedoms, and the right to life and personal liberty, which are crucial safeguards against arbitrary detention.
• Article 22 of the Constitution provides safeguards, including review by an Advisory Board for detention exceeding three months and the right to be informed of detention grounds.

Key Concepts Involved:

• Preventive Detention: Detention of a person without trial or conviction to prevent them from committing a future offense.
• Prohibitory Order: An order issued by a magistrate under Section 163 BNSS (formerly Section 144 CrPC) to prevent obstruction, annoyance, or danger to public peace.