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Is Preventive detention-- a proviso to tenets of criminal jurisprudence, a fiction of law..

(1) In criminal jurisprudence, the thumb rule is that, a man may be detained, of course by following the due process of law, if he is accused of having committed an act which is labelled as offence punishable with fine or imprisonment or both. It obviously follows that although a man has some evil intention to commit an illegal act, but he cannot be accused of having committed illegal act as long as the evil act remains in his mind.

(2) Article 22 of Constitution of India deals with preventive detention of persons. This article consists of two parts. Clauses (1) & (2) apply to persons arrested under a law otherwise than a preventive detention law. Clauses (4) to (7) apply to persons detained under preventive detention law.

(3) The clauses (4) to (7) in essence state that a person detained must be told the grounds of hid detention although the authority may not disclose such facts which in their opinion would be prejudicial to pubic interest if disclosed; One cannot be detained for more than three months unless the advisory board in its opinion so advice to extend detention beyond three months; and Parliament by law to provide for law relating to preventive detention and provide for circumstances under which preventive detention can be done and maximum period for which one can be detained under preventive detention.

(4) And thus it seems very clear that the preventive detention presupposes the existence of some intelligence gathering, in possession of State govt, apprehending imminent & grave terror attack or alike danger to communal harmony of the society or alike circumstances, and on the basis of that intelligence gathering, they may detain a man, although he has yet to commit any offence, but idea is to prevent him to commit that most likely terror attack or alike act.

(5) Whereas the detention is for to prevent that imminent collapsing danger, it is obviously presume that State authority will do its best to diffuse that eventuality within least possible time, and as soon as that imminent danger is attended with, the detainee may be released or his detention may be continued depending upon his role in the ‘event’. But then if his detention is extended even after that imminent danger comes to end, his detention cannot be said to be under preventive detention.

(6) Certainly period of three months is quite sufficient to attend any imminent danger. The State authority pleading for extension of preventive detention should substantially show to the court that they are doing night & day to prevent that imminent danger which is the cause of preventive detention.

(7) Also, a cry was overheard from the family of the bread earner detainee-- “you take my life when you take away the means whereby I live.”

(8) In equity & in principle, when State seek to encroach upon liberty of a person in the larger public interest, the larger public reciprocate by shouldering the burden of the safety and well being of the detainee’s family; and the State authority while acting on in the interest of the larger public, shoulders the burden of safety & well being of the detainee’s family, till the time of preventive detention.

(9) However, presently the State is not shouldering the burden of giving any safety net to the detainee's family.


Sandeep Jalan
advocate


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Sandeep Jalan

Advocate

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