Legal Reasoning Questions for CLAT | QB Set 40

Preventive detention refers to the extraordinary power of the State to detain a person without trial or conviction by a court, not as punishment for a past offence but to prevent the commission of a possible future act that may threaten public order or state security. In India, the roots of preventive detention lie in colonial rule, with such laws existing as early as 1818. During the First World War, the British government enacted the Defence of India Act, 1915, which authorised detention without trial, a framework that was again used during the Second World War under emergency regulations.

After Independence, instead of being discarded, preventive detention was constitutionally recognised, making India one of the few democracies where such powers form an integral part of constitutional law. Preventive detention differs fundamentally from punitive detention. While punitive detention follows the commission of an offence and is imposed as punishment after due process, preventive detention is based on suspicion and anticipation of harm. Under preventive detention laws, authorities may detain a person for up to three months without judicial trial, and this period can be extended only if an advisory board finds sufficient cause for continued detention.

Grounds commonly cited for such detention include threats to state security, public order, and foreign affairs. Article 22 of the Constitution provides specific protections to arrested or detained persons and lays down a separate framework for preventive detention cases. It mandates the constitution of advisory boards comprising individuals qualified to be High Court judges, which periodically review detention orders, examine evidence, hear the detainee, and assess whether continued detention is justified. Certain safeguards are available to the detained person, such as the right to be informed of the grounds of detention and the opportunity to make a representation against it, although the State may withhold disclosure in the interest of public safety.

Various laws authorise preventive detention, including the Public Safety Act, the National Security Act, and provisions under laws such as the NDPS Act. Data has shown fluctuations in the use of such laws, with preventive detentions under the NSA peaking in 2020 and declining thereafter. Despite these safeguards, preventive detention remains controversial. Critics argue that it dents democratic principles, enables extrajudicial authority, and is susceptible to misuse, particularly during communal tensions or political dissent, raising persistent concerns about arbitrariness and erosion of personal liberty.

Question 1

The State Government detains X under a preventive detention law, citing apprehension that X may disturb public order in the future. X argues that since no offence has been committed, the detention is illegal.

Which of the following is the most appropriate legal position?

A. Detention is illegal because punishment can only follow commission of an offence
B. Detention may be valid since preventive detention aims to prevent future offences
C. Detention is valid only if X has a prior criminal record
D. Detention is illegal unless X is produced before a criminal court

Correct Answer: B

Question 2

A preventive detention order is passed against Y and continues for four months without review by any advisory board. Y challenges the detention as unconstitutional.

Which constitutional requirement is most relevant in deciding this challenge?

A. The detainee must be informed of the grounds of detention
B. Preventive detention laws must be approved by Parliament
C. Detention beyond three months requires approval of an advisory board
D. Detention is valid if public interest is involved

Correct Answer: C

Question 3

Z is detained under a preventive detention law. The government refuses to disclose the grounds of detention, citing public interest. Z claims this violates constitutional safeguards.

Which of the following best reflects the correct legal position?

A. Non-disclosure of grounds is never permitted
B. Grounds must always be disclosed to ensure fairness
C. Non-disclosure is allowed only with prior judicial approval
D. The State may refuse disclosure if public interest so requires

Correct Answer: D

Question 4

A person is arrested after committing a serious criminal offence and is sentenced following a trial. The detention in this case would be classified as:

A. Punitive detention
B. Preventive detention
C. Emergency detention
D. Administrative detention

Correct Answer: A

Question 5

District authorities frequently use preventive detention laws during local communal tensions, even when ordinary criminal law remedies are available. This practice raises concerns primarily because:

A. Preventive detention laws are temporary in nature
B. Advisory boards lack judicial competence
C. Such use may amount to misuse of extrajudicial authority
D. Preventive detention is prohibited under Article 22

Correct Answer: C