Daily Current Affairs : 25-October-2023
As the upcoming Assembly polls in Telangana draw near, the state’s stringent preventive detention law has come under scrutiny, prompting a closer examination of its provisions and implications.
Understanding Preventive Detention
Preventive detention refers to the state detaining an individual without trial or conviction by a court, solely based on suspicion. Unlike pre-trial detention, which concerns undertrial accused individuals, preventive detention is a proactive measure taken even if no crime has been committed. In countries like Britain, the United States, and Canada, preventive detention is primarily a wartime measure. However, in India, the Constitution allows for preventive detention under Part III, which deals with fundamental rights.
Laws Governing Preventive Detention
Central Laws
- The National Security Act and the COFEPOSA Act are central legislations enabling preventive detention.
State Laws
- Telangana, along with 25 other states, has its preventive detention law, established in 1986, addressing local law and order concerns.
- Similar laws exist in states like Tamil Nadu, Gujarat, and Bihar.
Powers of the State under Article 22
Article 22 of the Constitution provides safeguards against arrest and detention but contains an exception in Article 22(3)(b) for those detained under preventive detention laws. Key aspects include:
- The state, typically the district magistrate, issues detention orders to maintain public order.
- Approval from an Advisory Board, comprising retired judges and bureaucrats, is required for detentions exceeding three months.
- The detainee has the right to challenge the detention order in court.
- Grounds for detention must be communicated to the detainee in a language they understand, though this can be limited by the state’s discretion under Article 22(6).
Judicial Review and Limitations
Courts face narrow grounds for judicial review due to the Constitution’s emphasis on the state’s subjective satisfaction. Judicial review is confined to ensuring the Advisory Board considered all facts and assessing the presence of obvious malice. Limited judicial review often leads to the striking down of detention orders based on technicalities, such as delays in advisory board decisions or improper communication of grounds.
Important Points:
- Preventive detention involves detaining individuals by the state based on suspicion, without trial or court conviction.
- Distinct from pre-trial detention: Preventive detention occurs even if the individual has not committed a crime, in contrast to undertrial detainees.
- Constitutional provision: India’s Constitution (Part III) allows for preventive detention under Article 22, despite its emphasis on individual rights and liberties.
- Central Laws: National Security Act and COFEPOSA Act are central legislations enabling preventive detention.
- State Laws: Telangana, along with 25 other states, has specific preventive detention laws addressing local law and order issues.
- Powers under Article 22:
- District magistrates or the state can issue detention orders to maintain public order.
- Advisory Boards, consisting of retired judges and bureaucrats, approve detentions exceeding three months.
- Detainees have the right to challenge detention orders in court.
- Grounds for detention must be communicated to the detainee in a language they understand, although subject to state discretion.
- Limited judicial review: Courts have narrow grounds for review due to the Constitution’s emphasis on the state’s subjective satisfaction.
- Review limitations: Judicial review assesses whether the Advisory Board considered all facts and checks for obvious malice.
- Common issues in judicial review: Courts often strike down detention orders due to technicalities like delays in advisory board decisions or improper communication of grounds.
Why In News
As Telangana gears up for Assembly polls next month, its stringent preventive detention law is under the spotlight, drawing attention from civil rights activists and legal experts concerned about potential misuse of this legislation.
MCQs about Preventive Detention in Telangana
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What is the primary purpose of preventive detention in Telangana?
A. To punish individuals for committed crimes.
B. To detain individuals based on suspicion without trial or conviction.
C. To provide legal representation to detainees.
D. To expedite the trial process for undertrial accused.
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Which constitutional article allows for preventive detention in India, including Telangana?
A. Article 14
B. Article 21
C. Article 22
D. Article 19
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What role do Advisory Boards play in the preventive detention process in Telangana?
A. Approving detentions for any duration without review.
B. Checking if detainees have legal representation.
C. Reviewing and approving detentions exceeding three months.
D. Issuing detention orders to individuals.
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What is the main challenge faced by courts in reviewing preventive detention orders in Telangana?
A. Lack of relevant laws.
B. Limited grounds for judicial review due to the state’s subjective satisfaction.
C. Excessive interference from the state government.
D. Inadequate representation for detainees.
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