‘Preventive Detention’ or ‘Punitive Detention’?

Invariably preventive detention laws provide that detention order may be executed at any place in India in any manner provided for the execution of warrants of arrest under the Cr. P.C. Further Article 22 of the Constitution is the relevant provision in this regard for arrest of a person which provides as under:-

“22. Protection against arrest and detention in certain cases-

(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply-

(a) to any person who for the time being is an enemy alient; or

(b) to any person who is arrested or detained under any law providing for preventive detention.

(4) No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless-

(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that three is in its opinion sufficient cause for such detention: Provide that nothing in this sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as maybe, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.

(7) Parliament may by law prescribe-

(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);

(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and

(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).”

The langrage of Article 22(1) & (2) indicates that the word “arrest” has to be distinguished from “detention”. Section 41 of the Cr.P.C. Provides when police may arrest without warrant. Section 46 provides how “arrest” can be made The essential elements to constitute an arrest are that there must be an intent to arrest under authority of, accompanied by a seizure or detention of the person in the manner known to law, which is so understood by the person arrested. Arrest consists of actual seizure or touching of a person’s body with a view to his detention.

The pronouncing of words of arrest is not an arrest, unless the person sought to be arrested submits to the process and goes with the arresting officer. In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

This seems to be the mode of arrest recognized in English Law. An arrest by mere oral declaration is insufficient. However, there is a vital distinction between ‘preventive detention’ and ‘punitive detention’ HON’BLE BHAGWATI, J. observed in Francis Coralie Mullin v. The Administrator, Union Territory of Delhi: “Punitive detention is intended to inflict punishment on a person, who is found by the judicial process to have committed an offence while preventive detention is not by way of punishment at all, but it is intended to prevent a person from indulging in conduct injurious to the society.

The power of preventive detention has been recognized as a necessary evil and is tolerated in a free society in the larger interest of security of the State and maintenance of public order. It is drastic power to detain a person without trial and there are many countries where it is not allowed to be exercised except in time of war or aggression.” Preventive detention is qualitatively different from punitive detention and their purposes are different. In case of punitive detention, the person concerned is detained by way of punishment after he is found guilty of wrong doing as a result of a trial where he has the fullest opportunity to defend himself, while in case of preventive detention, he is detained merely on suspicion with a view to preventing him from doing harm in future and the opportunity that he has for contesting the action of the executive is very limited.

Having regard to this distinctive character of preventive detention, which aims not at punishing an individual for a wrong done by him, but at curtailing his liberty with a view to preventing his injurious activities in future, it has been laid down by this Court in Sampat Prakash v. State of Jammu and Kashmir, that the restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal.” Similarly RACY C.J. observed in 5- judges bench decision of the Supreme Court, that the essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it.

The basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act.

One is punitive action and the other is a preventive act. In one case a person is punished to prove (sic)(on proof of?) his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in various statutes on preventive detention. In my next Article I will share the instances wherein the law of preventive detention becomes operative in India and grounds of which the detention order made be set aside.

Kapil Chandna Advocate



Kapil Chandna 
on 21 February 2017
Published in Criminal Law
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