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What is preventive detention?

Under Section 151 of The Criminal Procedure Code, 1973 (CrPC) preventive detention is action taken on grounds of suspicion that some wrong actions may be done by the person concerned.

A police officer can arrest an individual without orders from a Magistrate and without any warrant if he gets any information that such an individual can commit any offense.

Article 22 of the Indian Constitution provides protection against arrest and detention in certain cases.

Does the constitution provide any safeguard against misuse of preventive detention?

The Article 22 of the Indian Constitution provides safeguards against the misuse of police powers to make arrests and detentions.

The clause(2) of Article 22 reads, “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.”

The clause (4) of the article states that no individual can be detained for more than 3 months unless a bench of High court judges or an Advisory board decides to extend the date.

The clause (4) of Article 22, reads as, “No law providing for preventive detention shall authorise 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 there is in its opinion sufficient cause for such detention:

The clause(5) of the Article 22 states that the detained individual should be made aware of the grounds he/she has been detained (in pursuance of the order) and should provide him/her with an opportunity of making a representation against the case.

The clause(5) of Article 22 reads as, “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 may be, 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.”

Parliament may by law prescribe the circumstances under 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.

What is the difference between preventive detention and an arrest?

An ‘arrest’ is done when a person is charged with a crime. An arrested person is produced before a magistrate within the next 24 hours.

In case of preventive detention, a person is detained as he/she is  simply restricted from doing something that might deteriorate the law and order situation.

 

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