Cockroach Janata Party (CJP) leaders Saurav Das and Ashutosh Ranka, who were placed under preventive arrest for allegedly trespassing at Jantar Mantar in Delhi, have been sent to five-day judicial custody. The two, along with CJP member Ajinkya Shinde, face charges including breach of a peace bond and obstructing a public servant from performing official duties.
Here is a look at what preventive detention, arrest and detention mean under Indian law.
What is preventive detention?
Preventive detention is a legal measure used to stop a person from engaging in activities that authorities believe could threaten national security, public order or other interests specified under the law. Unlike ordinary criminal proceedings, it does not require a person to have committed a specific offence or face criminal charges.
Article 22 of the Constitution lays down safeguards against preventive detention. Under Article 22(4), detention generally cannot extend beyond three months without an Advisory Board’s opinion that there is sufficient cause for continued detention, subject to the constitutional provisions and applicable law.
Article 22(5) requires the authority to communicate the grounds of detention to the person concerned as soon as possible and give them the earliest opportunity to make a representation against the order. Certain information may be withheld if its disclosure is considered against the public interest.
Preventive detention under a special law is different from a preventive arrest by police to stop an anticipated offence. Section 170 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, allows police to arrest a person to prevent the commission of a cognisable offence when it cannot otherwise be prevented. This is a preventive police power, not the same as a formal preventive detention order under the NSA.
What is detention?
Detention is a broader term for holding a person in custody under legal authority. It does not necessarily mean that authorities believe the person poses a future threat to national security or public order.
For example, if the police arrest someone on suspicion of committing an offence, the person may be held in police custody during an investigation. A court may subsequently authorise judicial custody. This is different from preventive detention, as the custody is linked to an alleged offence and the criminal justice process.
The BNSS, 2023, which replaced the Code of Criminal Procedure, governs several aspects of arrest and criminal custody. Section 187 allows a magistrate to authorise detention when an investigation cannot be completed within the prescribed period. It sets out the conditions governing police and judicial custody, along with the applicable limits.
Ordinary arrest and custody are subject to safeguards. Under Article 22(2) of the Constitution, an arrested person must generally be produced before the nearest magistrate within 24 hours of arrest, excluding the time necessary for the journey. Further detention requires the magistrate’s authority.
The key difference is that detention is a broad term covering different forms of custody, while preventive detention is a specific legal measure intended to prevent anticipated harmful activities. The law under which a person is held determines the powers of the authorities, the permitted duration of custody and the safeguards available.
What is arrest?
Arrest is the act of taking a person into legal custody, usually because they are suspected of committing an offence or because a court has ordered their arrest. It can lead to criminal investigation, court proceedings and, where permitted, custody during the case.
The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced the Code of Criminal Procedure (CrPC) from July 1, 2024, lays down the procedure for arrests and criminal investigations.
Section 35 of the BNSS specifies when police may arrest a person without a warrant. The provision also places conditions on such arrests, including requirements linked to the nature of the offence and the necessity of arrest. For offences where arrest is not required, police may issue a notice directing the person to appear.
Section 36 lays down the procedure for arrest and the duties of the police officer making it. Section 47 requires the arrested person to be informed of the grounds of arrest and, where applicable, their right to bail.
Under Article 22(1) of the Constitution, an arrested person must be informed of the grounds of arrest and has the right to consult and be defended by a legal practitioner of their choice. Article 22(2) requires the person to be produced before the nearest magistrate within 24 hours of arrest, excluding the time necessary for the journey, and prohibits detention beyond that period without a magistrate’s authority.
What does the law say about preventive police action?
Police also have powers to prevent offences and breaches of peace. Under Section 168 of the BNSS, police are required to prevent the commission of cognisable offences. Section 170 allows a police officer to arrest a person without a warrant when the statutory conditions are met and the officer knows of a design to commit a cognisable offence that cannot otherwise be prevented.
These powers are different from detention under the National Security Act or other special preventive detention laws. The legal basis for taking someone into custody, the reason for doing so and the safeguards that apply must be assessed separately in each case.
