Context
Following the detention of protesters in Delhi, the Supreme Court directed authorities to protect peaceful protests while maintaining public order. This has renewed attention to preventive detention, its constitutional safeguards and the distinction between detention and prohibitory orders.
Explanation
- Preventive detention means detaining a person without trial to prevent a possible future threat, unlike punitive detention, which follows conviction for an offence.
- Article 22 of the Constitution provides safeguards against arbitrary arrest and detention.
- Article 22(4) generally limits preventive detention beyond three months unless an Advisory Board reports sufficient cause, subject to constitutional exceptions.
- Article 22(5) requires authorities to communicate the grounds of detention and provide an opportunity for representation, subject to limited exceptions.
- The National Security Act, 1980, permits preventive detention on specified grounds involving national security and public order.
- Section 163 of BNSS, 2023, empowers magistrates to issue urgent prohibitory orders to prevent danger or public disorder. Unlike preventive detention, prohibitory orders restrict activities or assemblies rather than directly authorising detention.
- Courts can review detention orders to protect personal liberty under Article 21.
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