We all might have heard from newspapers or other articles about detention, custody, prison and similar terms and must have wondered what is the difference between them and what are the provisions in place for detention. Our constitution protects the basic human rights and enshrines the right to live with dignity as a fundamental right under Article 21. However, several incidents have come to the limelight for violation of basic human rights of detainees. The article discusses the meaning of detention, it’s various types and explores the various law provisions existing in the current legal framework.
According to Cambridge dictionary, detention is “the act or condition of officially forcing to stay at one place.”1
Generally, in detention police keep the custody of a person suspicious of commission of any crime to question him/ her. However, a person is arrested when he/ she is charged with a crime and needs to be brought before court within 24 hours.
Detention is less severe and on reasonable grounds a person can be officially kept in custody for questioning. Detention does not indicate a criminal record. Thus, detention is a temporary custody which is followed by arrest or by a decision from any competent authority. Preventive detention is a form of detention where there is an apprehension of any person committing a crime or does any act to threaten or disturb the peace in the society, in such scenario the person maybe put under detention.
According to section 151 of the Criminal Procedure Code, preventive detention is detention of a person on the grounds of suspicion that a wrong act might be done by the person in near future. 2 It is also known as administrative detention.
When a person is arrested he/ she gets several rights as per Article 22 (1) and (2) however such rights are not extended to a detainee. But there are certain basic rights such as right to education, right to healthy and nutritious food etc and the detention centers must provide these to its inmates.
Another form of detention is punitive detention which is given as a punishment for a crime. It generally happens when one has actually committed a crime.
In the case of Mariappan v. The District Collector and Others 3 , it was observed that the purpose of detention is not punishment but is to prevent crimes. The Supreme Court in the case of Union of India v. Paul Nanickan and Anr, 4 it was observed that if there is a valid reason for suspecting the commission of crime, a person can be detained.
There are several laws wherein, provisions about preventive detention are dealt in detail such as Foreign Exchange Conservation and Prevention of Smuggling Activities (COFEPOSA), 1974; , Maintenance of Internal Security Act (MISA), 1971; Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985; Unlawful Activities (Prevention) Act, 2008, Prevention of Terrorist Activities Act (POTA), 2002; and so on.
In the case of Justice K. S. Puttaswamy (Retd.) and Anr. V Union Of India And Ors. 5 Three fold conditions were laid down in cases where a person’s individual liberty is violated, and they are as follows:-
- The first condition is validity of such detention, whether it is backed by law or not.
- The second condition to see for what purpose it is done,
- And thirdly, there must be a proportional relationship between what is the object sought and the ways used.
Thus, detention is a temporary custody of a person to prevent a crime. Though the detainee does not enjoy the rights accorded to a person arrested, there are several substantive laws in India which lists the proper procedure for detention. There are detention centers for illegal migrants, for Juvenile offenders, for mentally ill convicts and for many other purposes according to the concerned statute for which it was created.*
1 CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/dictionary/english/detention.
2 All you need to know about preventive detention?), INDIA LEGAL, (Nov 08, 2021, 7: 43 pm), https://www.indialegallive.com/is-that-legal-news/all-you-need-to-know-about-preventive-detention/.
3 H.C.P.(MD) No.244 of 2014.
4 Appeal (crl.) 21 of 2002.
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