What Preventive Detention Is

That choice has one consequence a student must know. A challenge to a detention statute can never succeed on the ground that preventive detention is as such unconstitutional. The Constitution assumes it. The challenge has to be that this statute, or this order, fails a condition.

The five features that define it

1. It is executive, not judicial. The order is made by a Government or by an officer it empowers. No court is involved at the making of it.
2. It is preventive, not punitive. It is directed to what the person may do, not to what he has done. Past conduct is evidence of propensity, not the subject of the order.
3. It rests on satisfaction, not on proof. The condition of the power is the authority's own satisfaction, on material that need not be evidence and need not be disclosed in full. See [Subjective Satisfaction, and How Far a Court May Examine It].
4. There is no charge and no trial. No offence is alleged, no accusation is framed, no witness is examined and there is no verdict.
5. The safeguards are procedural. What the detenu gets is the grounds, an opportunity to represent, a Board that reports, and a court that can test the legality of the order. He does not get a hearing on the merits of the prediction.

The vocabulary a student needs

Detenu. The person detained. The word is used throughout the statutes and the case law and is worth using in an answer.

Detaining authority. The Government or officer who makes the order under the statute.

Grounds of detention. The conclusions of fact on which the satisfaction rests, served on the detenu under article 22(5) and under the statute. Distinguished from the material or particulars behind them.

Representation. The detenu's written answer to the grounds, addressed to the Government and considered by it and by the Board.

Advisory Board. The body of three persons who are, have been, or are qualified to be appointed as, Judges of a High Court, which reports whether there is sufficient cause for the detention.

Confirmation. The Government's order continuing the detention after the Board reports in its favour.

Revocation. The cancellation of the order, whether by the Government of its own motion or because the Board has reported against it.

A worked example, taken to the end

On 3 March the State Government of Maharashtra makes an order under section 3(2) of the National Security Act 1980 directing that Farid be detained to prevent him from acting in a manner prejudicial to the maintenance of public order. He is arrested the same day.

Step 1, the order. No offence is alleged. The order recites the ground and the satisfaction.

Step 2, the grounds. Under section 8, the authority must communicate the grounds as soon as may be, ordinarily not later than five days, and in exceptional circumstances and for reasons recorded in writing not later than fifteen days, and must afford the earliest opportunity of representing against the order.

Step 3, the report. Where the order was made by a District Magistrate or Commissioner of Police under section 3(3), he must forthwith report to the State Government with the grounds; the order lapses after twelve days unless approved, extended to twenty days where the grounds were communicated after five days but within fifteen.

Step 4, the Board. Under section 10 the appropriate Government must place the grounds and any representation before the Advisory Board within three weeks of the detention. Under section 11 the Board reports within seven weeks of the detention, and section 11(4) provides that nothing in that section entitles the detenu to appear by any legal practitioner.

Step 5, the outcome. If the Board reports sufficient cause, section 12(1) allows the Government to confirm and continue the detention for such period as it thinks fit, subject to the maximum in section 13. If the Board reports no sufficient cause, section 12(2) requires the Government to revoke the order and release him forthwith.

Step 6, the maximum. Section 13 fixes twelve months from the date of detention for a confirmed order, without prejudice to the power to revoke or modify earlier.

Step 7, the court. At any point Farid may move the High Court under article 226 or the Supreme Court under article 32 for habeas corpus, on the grounds set out in [Subjective Satisfaction, and How Far a Court May Examine It].

What it does NOT mean

It is not house arrest by another name. The detenu is held in a place and under conditions the appropriate Government specifies under section 5, which in practice is a prison.

It is not a sentence. No period is fixed by reference to gravity, there is no conviction, and it produces no criminal record.

It is not the same as arrest on suspicion of an offence. An arrested person must be produced before a magistrate within twenty four hours; a detenu need not be produced before any court at all.

It is not available for any purpose the Government likes. The grounds are fixed by the statute and, behind the statute, by Entry 9 of the Union List and Entry 3 of the Concurrent List.

Quick revision

• Preventive detention: executive imprisonment to prevent future conduct, on the authority's subjective satisfaction, without charge, trial or conviction.
• Authorised by article 22(3) to (7), Entry 9 of List I and Entry 3 of List III.
• The Constituent Assembly's choice: authorise it in the Constitution with conditions rather than leave it to ordinary law.
• Consequence: it can never be attacked as unconstitutional in itself; only the statute or the order can be attacked.
• Five features: executive, preventive, satisfaction-based, no charge or trial, procedural safeguards only.
• The steps under the NSA: order, grounds within five or fifteen days, report and approval within twelve or twenty days, Board within three weeks and report within seven weeks, confirmation or release, twelve month maximum, and habeas corpus throughout.

Test yourself

1. Define preventive detention in one sentence. Detention by an executive order made on the subjective satisfaction of a statutory authority with a view to preventing a person from acting in a manner prejudicial to a purpose the statute specifies, without charge, trial or conviction.

2. Why can a detention statute never be challenged on the ground that preventive detention is unconstitutional? Because article 22(3)(b) and (4) to (7) assume the existence of laws providing for preventive detention, and Entry 9 of List I and Entry 3 of List III confer the legislative power to make them.

3. Within what time must the grounds be communicated under the National Security Act? As soon as may be, ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days from the date of detention.

4. What happens if the Advisory Board reports that there is no sufficient cause? Section 12(2) requires the appropriate Government to revoke the detention order and cause the person to be released forthwith.

5. What is the maximum period of detention under the National Security Act for a confirmed order? Twelve months from the date of detention, without prejudice to the power of the appropriate Government to revoke or modify the order earlier.