Preventive detention and right to speedy trial

 

PREVENTIVE DETENTION AND RIGHT TO SPEEDY TRIAL

PREVENTIVE DETENTION:

Clauses [4] to [7] of article 22 provide the procedure which is to be followed if a person is arrested under the law of ‘preventive detention’. There is no authoritative definition of the term ‘preventive detention’ in Indian law. The word preventive is used in contra-distinction to the word ‘punitive’. It is not a punitive but a preventive measure. While the object of the punitive detention is to punish a person for what he has already done, the object of preventive detention is not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it. No offence is proved nor any charge is formulated. The sole justification of such detention is suspicion or reasonable probability of the detenu committing some act likely to cause harm to the society or endanger the security of the government, and not criminal conviction which can only be warranted by legal evidence.

RIGHT TO SPEEDY TRIAL

In Hussainara khatoon [No 1] V Home secretary, state of Bihar, a petition for a writ of habeas corpus was filed by number of under – trial prisoners who were in jails in the state of Bihar for years awaiting their trial. The supreme court held that ‘right to speedy trial’ a fundamental right is implicit in the guarantee of life and personal liberty enshrined in Article 21 of the constitution. Speedy trial is the essence of criminal justice. In united states speedy trial is one of the constitutionally guaranteed right under the sixth amendment. Bhagwati. J held that although, unlike the American constitution speedy trial is not specifically enumerated as a fundamental right. It is implicit in the broad sweep and content of article 21 as interpreted in Menaka Gandhi’s case. No procedure which does not ensure a reasonable quick trial can be regarded as ‘reasonable, fair or just’. For this reason the court ordered the Bihar government to release forthwith the under – trial prisoners on their personal bonds. In Husainara khatoon [No 2] and Husainara khatoon [No 3] cases the court reiterated the same view. In a significant judgment in Abdul Rehman Antuley V R.S.Nayak, the supreme court has laid down  detailed guidelines for speedy trial of an accused in a criminal case but it declined to fix any time limit for trial of offences. The court held that the right to speedy trial flowing from Article 21 is available at all stages namely the stage of investigation, inquiry, trial, appeal, revision and retrial.

The concerns underlying the right to speedy trial from the point of view of the accused are:

1.  The period of remand and pre – conviction detention should be as short as possible. In other words the accused shall not be subjected to unnecessary or unduly long detention point of his conviction

2.  The worry, anxiety, expense and disturbance to his vocation and peace resulting from an unduly prolonged investigation, inquiry or trial shall be minimal and

3.  Undue delay may result in impairment of the ability of the accused to defend himself whether on account of death, disappearance or non – availability of witnesses or otherwise.

 

The court said that the accused cannot be denied the right of speedy trial merely on the ground that he had failed to demand a speedy trial.