Preventive detention has not been unknown in other democratic countries like England and Canada but their recourse has been had to it only in war time. In A.K. Gopalan v. State of Madras, AIR 1950 S.C. 27, the Supreme Court had expressed the view that a detent could not claim the freedom guaranteed by Article 19(l)(d) If it was infringed by his detention.
But this view of the court changed in R.C. Cooper v. Union of India, AIR 1970 S.C. 564, and in Maneka Gandhi’s case. The court expressed the view in these cases that a law relating to preventive detention must satisfy not only the requirements of Article 22 but also the requirements of Article 21 of the Constitution.
The legislative capacity of Parliament or the State legislatures to enact a law of preventive detention is however, limited to clauses 4 to 7 of Article 22 which lay down a few safeguards for a person subjected to such detention. The scheme of these clauses is to classify preventive detention in three categories, viz.:
(a) A preventive detention up to two months, provision for which may be made either by Parliament or a State legislature, in such a case, no reference may be made to an Advisory Board;
However, Constitution (44th Amendment Act, 1978) has substituted a new clause for clause (4) which now reduces the maximum period for which a person may be detained without obtaining the opinion of Advisory Board from 3 months to 2 months. The detention of a person for a longer period than 2 months can only be made after obtaining the opinion of the Advisory Board.
(b) Preventive detention for over three months subject to safeguard of an Advisory Board consisting of persons qualified to act as High Court judges. No person can remain in preventive detention for more than 3 months unless the Board holds that in its opinion, there are sufficient causes for detention.
The Supreme Court has held In Puranlal Lakhan Lai v. Union of India, AIR 1958 S.C. 163, that the Advisory Board’s function is not to determine the period of detention but only to determine whether the detention by itself is justified.
(c) Preventive detention for over three months without the safeguard of an Advisory Board. Such detention is possible if Parliament prescribes by law the circumstances under which, and the class or classes of cases in which a person may be detained for over three months without reference to Advisory Board.
Parliament may also prescribe the maximum period for which a person can be detained in cases (b) and (c). This provision, it has been held is merely permissive and does not oblige Parliament to prescribe any maximum period. Further, Parliament may by law prescribe the procedure to be followed by an Advisory Board in an inquiry under Clause (4).
The following safeguards have been provided to a detenu:
(1) Grounds of detention must be communicated
Article 22(5) gives the right to the detenu to be communicated the grounds of detention as soon as possible, the detaining authority making the order of detention must as soon as possible communicate to the person detained the grounds of his arrest and to give the detenu the earliest opportunity of making representation against the order of the detention. The clause (5) of Article 22 imposes an obligation on the detaining authority to furnish to the detenu the grounds for detention, “as soon as possible”. The grounds of detention must be clear and easily understandable by the detenu.
In Ram Bahadur v. State of Bihar, AIR 1975 S.C. 245, It has been held that where the order of detention Is founded on distinct and separate grounds, if any of the grounds is vague or irrelevant, the entire order must fail.
(2) Right of representation
Article 22 imposes an obligation upon the Government to afford the detenu the opportunity to make representation under clause (5) of Article 22. It makes no distinction between order of detention for only two months and less and for those for a longer duration.
The obligation applies to both kinds of orders. It is clear from clauses (4) and (5) of Article 22 that there is dual obligation on the appropriate Government and dual right in favor of detenu, namely, (1) to have his representation irrespective of the length of detention considered by the appropriate Government, and (ii) to have once again in the light of the circumstances of the case considered by Board before it gives its opinion.
If in the light of the representation, the Board finds that there is no sufficient cause for detention, the Government has to revoke the order of detention and set at liberty the detenu.
(3) Advisory Board
Article 22 provides that the detenue under the preventive detention law shall have the right to have his representation against his detention reviewed by an Advisory Board. If the Advisory Board reports that the detention is not justified, the detenue must be released forthwith. If the Advisory Board reports that the detention is justified, the government may fix the period for detention.
The Advisory Board must conclude its proceedings expeditiously and must express its opinion within the time prescribed by law. Failure to do that makes detention invalid. Along with its opinion, the Board must forward the entire record to the Government who is supposed to take a decision on the perusal of the entire record.
The Constitution (44th Amendment Act, 1978) has amended Article 22 and reduced the maximum period for which a person may be detained without obtaining the opinion of the Advisory Board from 3 months to 2 months.
It has also changed the constitution of the Board which shall now consist of a Chairman and two other members. The Chairman must be a sitting judge of the appropriate High Court and other members shall be either a sitting or retired judge of a High Court.
The detenu has no right of legal assistance in the proceedings before the Advisory Board. But if the Government is given a facility, it should equally be provided to the detenue.
The discretion of the Board to permit or not to permit must be exercised in conformity with Articles 14 and 21 of the Constitution. It has been held in Nand Lai vs. State of Punjab, AIR 1921 S.C. 2041, that this discretion cannot be exercised in an arbitrary manner.
The Constitution (44th Amendment Act, 1978) now provides that Article 21 will not be suspended during emergency and hence detention can be challenged in a court of law.