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Usually restraint of liberty by police and is a temporary measure. After arrest, the person is sent to the custody of the magistrate/court - judicial custody.
Perhaps a special form of judicial custody is ‘police remand’ - period for which police can seek, from the court, the custody of the person in their custody for investigation. This is a limited duration and after the period is over, the arrestee has to be returned to custody of magistrate/court – judicial custody.
After the initial period of 24 hours, and production before magistrate, judicial custody starts. While police remand is a special form of judicial custody, usually judicial custody is synonymous with ‘being sent to jail’.
Briefly put, judicial custody is either of persons awaiting completion of investigation and trial (Under Trial Prisoners) or Convicts or persons who have not been able to satisfy conditions of bail/surety.
Preventive detention (PD) is another Constitutionally and legally sanctioned form of restraining the liberty of an individual. PD is an extraordinary power available with the executive branch of government to help tide over exceptional circumstances. The power, hypothetically speaking, can be exercised with or without there being criminal cases or FIRs registered against a person. However, since it is an exceptional power, it is usually exercised only when there are FIRs or enough material on record to satisfy the executive that the person’s liberty needs to be restrained without delay.
In India, PD is a quasi-judicial act, not judicial - not covered by the CrPC but by the Indian Constitution and the National Security Act, 1980 which provides a special code.
(a) Who exercises the power
The power to detain under PD vests with the executive branch of the State Government (SG). Initial proposals are initiated by the Police and sent to the District Magistrate (DM) who passes the initial detention order.
The DM, after passing the order recommends detention to the SG for issuing a formal order which is usually three months, initially. However, the orders of DMs have to be approved within 12 days by the SG for the detention to be valid beyond 12 days.
Once this detention is approved by a Board, the detention order is further extendible up to 12 months.
In Police Commissionerates, Police Commissioners may also be delegated the powers under NSA.
There is NO RIGHT TO BAIL in preventive detention cases.
(b) What are the grounds for detention
PD can be of an arrested person or of any other person. There are specific grounds on which preventive detention can be made;
(a) to preventing him from acting in any manner prejudicial to the defence of India,
(b) the relations of India with foreign powers, or
(c) the security of India, or
(d) with respect to any foreigner that with a view to regulating his continued presence in India or for making arrangements for his expulsion from India,
(e) with a view to preventing him from acting in any manner prejudicial to the maintenance of public order or
(f) with a view to prevent him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community.
The powers under the clause ‘maintenance of public order’ are very vast and can be used for detaining even hardened criminals or those whose being at large could disturb the peace in an area.
Law and order and public order are not the same. Public order is a term with wider connotations – e.g., a person habitually involved in illicit organ trade may also be a threat to public order, although this may not be a law and order issue. The more recent examples of threats to public order have been cases where certain people have been detained under NSA during the Covid-19 pandemic on charges of obstructing the doctors and paramedics from performing their duties in carrying out ‘tests’.
The orders and proposals for PD are based on the subjective satisfaction of the police, the DM and also the SG but usually they have to rely on some concrete evidence regarding the grounds of detention to substantiate the orders.
(c ) Procedures for Detention
Once the DM has approved and recommended detention, it is usually for period of three months.
Within this three month period, the detention has to be confirmed/approved by the SG within 12 days and a report to the Central Government has to be submitted within 7 days.
Once the SG approves the detention, a copy of the order with annexures and supporting documents have to be served upon the detainee immediately in the same manner as if it is a warrant of arrest as per CrPC.
The detention order and the supporting documents are served upon the detainee in the language which he understands and if he cannot read or write, the order and annexures are explained to him by reading them out and explaining to him. It is also practical that when the order is served, signatures of witnesses be obtained as a proof of service as well as the fact that they were read out/explained to him.
The grounds of detention have to be communicated immediately to the detenue but in no case later than 10 (5-days in some States) days from the date of detention.
The law also gives powers to the authorities not to disclose the facts which it considers to be against the public interest to disclose. This means that a person can be detained without informing him about his ground of arrest.
Meanwhile, the SG sets up an Board to give an opportunity to the detenue and for the Board to advise on whether there is sufficient cause/ground for detention.
(d) Advisory Board (Board)
The Central or SGs have to constitute a Board which consists of three members and the members should be such that they have been or qualified to be Judge of High Court. Out of the three members, one is appointed as Chairman of the board.
The detainee under NSA shall be produced before the Board within three weeks from the date of detention of a person under the order.
The Board shall, after considering the materials placed before it and if it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the appropriate Government within seven weeks from the date of detention of the person concerned.
The report of the Board specifies its opinion as to whether or not there is sufficient cause for the detention of the person concerned. If there is a difference of opinion among the members, majority decision prevails.
During Board proceedings, the detenu is not entitled to appear by/through a legal practitioner.
If the Board finds sufficient reason, the Detention is continued but if the Board does not finds sufficient reason, the detention is revoke and the detenue released forthwith.
(e) Writ Jurisdiction
The detenue is free to exercise his fundamental rights by way of habaeus corpus at any time after his detention is made. The grounds can be sufficiency or adequacy of evidence or even violation of procedural safeguards and principles of natural justice. The detenue can file writs under article 32 of the Constitution, either in the concerned High Court or the Supreme Court of India.
(f) Place of Detention
In PD orders, the place of detention can be anywhere in the State or in any other State with the consent of the other State, taking the Central Government into the loop.
In consultation with the Central government and the other SG, the appropriate Government can specify any place to be the place of detention – it may be a jail within the State or any other State or even any other premises the Government deems appropriate.
(g) Trials and Prosecution of Detenus
Where a PD order has been made, there is no bar to the trial/prosecution of the person in any criminal cases which he may be involved in.
(h) Temporary release of persons detained
Any person detained under this act can be released temporarily on the conditions with or without sureties. Any violation of conditions shall amount to punishment or forfeiture of bonds
(i) Grounds of Detention are severable
Where a person has been detained in pursuance of an order of detention which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds.
Therefore, the detention order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are— (i) vague, (ii) non-existent, (iii) not relevant, (iv) not connected or not proximately connected with such person, or (v) invalid for any other reason whatsoever.
Thus if the grounds on any one count are vague, it does not invalidate the entire order. Detention continues to be valid on other grounds.