Those under preventive detention have right to vote: EC

Election Commission (EC) of India said that people under preventive detention have the right to vote.

EC made this statement ahead of Assembly elections in Maharashtra and Haryana (voting on 15^th October) and warned that there should be no ground for any grievance due to non-compliance of the directive.

EC has written to the Chief Secretaries of Maharashtra and Haryana, reminding them of Section 62 (5) of the Representation of the People Act and the Conduct of Election Rules that specify that those in preventive detention are entitled to cast their votes by post.

EC’s letter also referred to the provisions in the Conduct of Election Rules under which:

The administration has to provide detail information to the Returning Officer of each constituency the names of electors under preventive detention, along with their addresses, electoral roll numbers so that postal ballots can be sent to them to facilitate them exercise their franchise in the elections.

Section 62 (5) of the Representation of the People Act and the Conduct of Election Rules

No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police.

Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force.

What is preventive detention?

A person can be put in jail / custody for two reasons.

1. One is that he has committed a crime. In this case the person will go on trial and will be put jail as punishment prescribed by law and court ruling. It is termed as punitive detention.
2. Another is that he is potential to commit a crime in future. The custody arising out this is preventive detention and in this, a person is deemed likely to commit a crime.

Thus Preventive Detention is done before the crime has been committed.

Rights of an Arrested Person under Article 22 in Indian Constitution

• A person cannot be arrested and detained without being informed why he is being arrested.
• A person who is arrested cannot be denied to be defended by a legal practitioner of his choice. This means that the arrested person has right to hire a legal practitioner to defend himself/ herself.
• Every person who has been arrested would be produced before the nearest magistrate within 24 hours.
• The custody of the detained person cannot be beyond the said period by the authority of magistrate.

However, Article 22 says that the above safeguards are not available to the following:

• If the person is at the time being an enemy alien.
• If the person is arrested under certain law made for the purpose of "Preventive Detention"

Summary of preventive detention provisions in Indian Constitution

• Every case of preventive detention must be authorized by law and not at the will of the executive.
• The Preventive detention cannot extend beyond a period of 3 months.
• Every case of preventive detention must be placed before an Advisory Board composed of Judges of the High Court (or persons qualified for Judges of the High Court).
• The case must be presented before the Advisory Board within 3 months.
• A continued detention after 3 months must be having a "favours of the Advisory Board".
• The person will be given opportunity to afford earliest opportunity to make a representation against the preventive detention.
• No person can be detained indefinitely.

Article 22 (7) provides exception to the above provisions. This clause of Article 22 mentions that:

When parliament prescribes by law the circumstances under which a person may be kept in detention may be kept in detention beyond 3 months without the opinion of the advisory board.

Parliament by law can also describe under the same law, the maximum period of detention.

Historical background and Timeline of Preventive detention in India

India is one of the few countries in the world whose Constitution allows for preventive detention even during peacetime. India has a long history of "Preventive Detention".

Pre Independence

1. 1818-In India the history of preventive detention dates back to the early days of the British rule when under the Bengal Regulation— III of 1818 (the Bengal State Prisoners Regulation) the government was empowered to detain anybody on mere suspicion.
2. 1939-Rule 26 of the Rules framed under the Defense of India Act 1939 allowed the detention of a person if it was "satisfied with respect to that particular person that such detention was necessary to prevent him from acting in any manner prejudicial" to the defense and safety of the country.

Post-Independence

3. 1950- The first post-independence Preventive Detention Act was passed in 1950. The validity of this act was challenged in the Supreme Court in the Gopalan v/s State of Madras Court. The Supreme Court held this act constitutionally valid except some provisions. This act expired in 1969.
4. 1971- Maintenance of Internal Security Act (MISA) was passed. MISA was basically a modified version of the PDA Act. It was abolished in 1978.
5. 1974- Another law, Conservation of Foreign exchange and Prevention of Smuggling Activities (COFEPOSA) was enacted in 1974.
6. 1985- To tackle the heat of the terrorism in Punjab, the Terrorist & Disruptive Activities (Prevention) Act (TADA) was enacted in 1985. It was renewed in 1989, 1991 and 1993 and lapsed in 1995 due to increasing unpopularity due to widespread allegations of abuse.
7. 2001- Another similar act, Prevention of Terrorism Ordinance (POTO) of 2001 came into force.
8. 2004-Both the TADA & POTO were later succeeded by another controversial Prevention of Terrorist Activities Act (POTA) during 2002-04. This act was supported by the NDA Government but later was scrapped by the UPA government.
9. 2008- After the Bombay attacks of November 26, 2008 parliament enacted another anti terror law known as Unlawful Activities (Prevention) Act.