Detention
What is ‘Detention’?
Detention can also refer to a situation where someone is being held by the police or other authorities, but has not yet been formally charged with a crime. It is a period of temporary custody prior to disposition by a court.
Official Definition of 'Detention'
There is no official definition of detention.
Legal provision(s) relating to 'Detention'
- ‘Detention’ in Constitution of India
Article 22 of the Indian Constitution guarantees protection against arrest and detention in certain cases-
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply—
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for preventive detention.
Types of 'Detention'
Preventive detention: Preventive detention means to detain a person so that to prevent that person from commenting on any possible crime or in other words preventive detention is an action taken by the administration on the grounds of the suspicion that some wrong actions may be done by the person concerned which will be prejudicial to the state. ‘Preventive detention’ is also referred to as ‘administrative detention’, since this detention is directed by the executive and the decision-making authority lies exclusively upon the administrative or managerial authority. The detention may be anywhere.
Home Detention under Section 167 of CrPC
Section 167 of CrPC provides for conditions under which a person can be detained in the course of investigation. Under this section, the magistrate can authorize the detention of the accused in custody or house arrest. Home detention, also referred to as home confinement or home house arrest, involves restricting an individual to designated premises outside of conventional jail facilities. These premises, subject to approval by authorities, can either be the individual's own residence or another location. House arrest serves as an alternative to incarceration during legal proceedings or post-conviction, particularly for certain categories of offenders with specific medical or other requirements, or those assessed as non-threatening. The conditions of house arrest are tailored to each individual and commonly involve limitations on travel, social interactions, and may incorporate electronic surveillance through wearable tracking devices.
Pre-trial detention
Arresting someone and holding them in custody until their conviction is the practice known as pre-trial detention. The term "pre-trail detention" describes the holding of an accused party in a criminal case prior to the start of the trial either as a result of being held under a preventive detention act or for failing to post bail. An unconvicted prisoner who has been held in custody while an investigation, inquiry, or trial is underway for the alleged offense they committed is referred to as an under trial or pre-trial inmate.
Immigration detainees
It is the deprivation of liberty for migration-related reasons. In most countries, immigration authorities have the power to hold non-citizens on grounds relating to a person’s migration situation. This is an administrative or civil power that operates separately to the powers given to the police and criminal courts. In contrast, criminal incarceration is the deprivation of liberty of a citizen or non-citizen due to criminal charges or convictions.
Immigration detention is the practice of holding people who are subject to immigration control in custody, while they wait for permission to enter or before they are deported or removed from the country. It is an administrative process, not a criminal procedure. This means that migrants and undocumented people are detained at the decision of an immigration official, not a court or a judge.
Under international law, immigration detention is only meant to be used as a last resort and where it is necessary, reasonable, and proportionate to a legitimate government objective.
Unfortunately, the use of unnecessary immigration detention is growing and endemic to the management of complex mixed migration. Globally, millions of refugees, asylum-seekers and migrants are at risk of immigration detention each year.
Most governments detain refugees, asylum seekers and migrants in some or more of the following situations:
- upon entry to the country;
- pending a final decision in their applications for asylum or other requests to remain in the country;
- pending their final removal when they are no longer permitted to remain in the country
International Experience
Australia:
Following the terrorist bombings in London in July 2005, the Anti-Terrorism Act9 (No. 2) 2005 incorporated preventative detention orders into the Criminal Code Act.They allow the Australian Federal Police to hold a person for up to 48 hours without arrest or prosecution. Contact with the outside world, especially family members, is highly prohibited while in incarceration. Each state and territory have passed laws increasing the maximum period of imprisonment under the PDO system to 14 days. PDOs are unique among Australia's several anti-terrorism measures introduced following the September 11 attacks. It is difficult to understand why the PDO regime was implemented, given that the law at the time already provided a wide variety of authorities and charges that allowed police to arrest, charge, and punish terrorists. Unsurprisingly, the PDO regime was not utilized for the first nine years after it was enacted, and it has only been used four times since then.
New Zealand:
The two forms of preventative detention in New Zealand. An indefinite jail sentence is what is meant by “preventive detention.” The other is civil detention known as a “public protection order.” An indefinite sentence of incarceration known as “preventive detention” is comparable to and second only to life in prison in terms of harshness. It may be awarded to offenders aged 18 or older who have been found guilty of a qualifying sexual or violent offence and the court finds that if they were given a fixed-term prison sentence, they would be likely to commit another qualifying sexual or violent offence. The non-parole period for preventive imprisonment is at least five years, although the sentencing judge may increase it if they think the prisoner's past justifies it. 34 of the 314 individuals serving preventative detention periods in 2013 were on parole. From 1968 until 2021, Alfred Thomas Vincent spent 52 years behind bars on a preventative detention order.
Belgium
The Pre-trial detention Act of 1990 governs pretrial detention in Belgium. It expressly prohibits the use of detention as an immediate punishment or a measure of force (Art. 16, §1, para. 2 of the 1990 Act on Pre-trial Detention). Pre-trial detention begins with an arrest warrant issued by an investigating judge. This type of arrest warrant must meet a number of procedural and material standards. There are two options to pre-trial custody in prison: the investigating judge can order that the detention be carried out under electronic supervision at the suspect's house, or s/he can decide to release the suspect with specific conditions.
United Nations General assembly resolution 43/173
Body of principles for the protection of all persons under any forms of detention or imprisonment is a General assembly resolution 43/173 adopted on 9th December 1988. There are 39 principles under this resolution. Principle 1 states that “ All persons under imprisonment or detention shall be treated in human manner and with respect for the inherent dignity of the human person.
Terry v. Ohio, 392 U.S. 1 (1968)
The United States supreme court held that police may temporarily detain an individual if there is reasonable suspicion that the individual is armed, or engaged in, or about to be engaged in criminal conduct. and this action of police will not be violative of 4th amendment of US constitution
Report of Special Rapporteur on the human rights of migrants, 2012, para. 69
In para. 69 of the Report states that, “The reasons put forward by States to justify detention should be clearly defined and exhaustively enumerated in legislation. If, as a measure of last resort, a State resorts to detention for immigration-control purposes in an individual case, this should be considered only when someone presents a risk of absconding or presents a danger to their own or public security”
ECHR Article 5(1)(f)
“No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: [...]
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.“
Appearance of 'term' in Database
Research that engages with Detention
Jurimetrics and Detention: Understanding the Supreme Court Through Detention Cases During the 1975 National Emergency by Nitish Rai Parwani
The paper discusses India post-Bangladesh Liberation War, highlighting the dormant National Emergency and political turbulence. Legal amendments and judicial appointments are scrutinized, indicating a wavering judiciary. Political unrest ensues when Prime Minister Indira Gandhi faces disqualification over electoral malpractices. Gandhi's subsequent request for another Emergency curtails dissent through mass detentions. Legislative changes further empower the government, diminishing civil liberties.
The study analyzes the Supreme Court's handling of liberty matters during the period from 1974 to 1977, particularly during the 1975 Emergency in India. Despite significant political and legal events, only a small number of judgments were reported, with a larger number classified as 'non-reportable'. This discrepancy raises concerns about the judiciary's independence and accountability. Anomalies in listing matters and potential censorship of judgments suggest interference with judicial processes. The decline in reported judgments, especially during the Emergency, indicates a compromised judiciary. This undermines the principles of judicial independence and accountability during that period.
Following the proclamation of the Emergency in India in 1975, Article 359 of the Constitution suspended the enforcement of fundamental rights. A debate arose among courts regarding the maintainability of habeas corpus petitions challenging detentions during the Emergency. Some High Courts ruled in favor of maintaining such petitions, while others abstained from deciding. In April 1976, the Supreme Court in the Habeas Corpus case barred judicial review of detention orders during the Emergency, citing constitutional limitations. Precedents set before the Emergency, such as Fendan Naha and Prabhu Dayal Deorah, limited the scope of judicial review in preventive detention cases. Justice Khanna's lone dissent emphasized the sanctity of life and liberty. The majority judgment, however, upheld the government's authority to detain individuals without judicial review. Subsequent cases like Bhanudas reaffirmed this stance, allowing no judicial inquiry into detention orders. These judgments revealed a judiciary reluctant to challenge executive actions during the Emergency, signaling a significant erosion of judicial independence and a departure from principles of liberty and justice.
Case Laws on Detention
- In A.K. Roy vs. Union of India, the court held that “detention is based not on fact proved either by applying the test of preponderance of probabilities or of reasonable doubt. The detention is based on the subjective satisfaction of the detaining authority that it is necessary to detain a particular person in order to prevent him from acting in a manner prejudicial to certain stated objects.” So, while detention can be based on suspicion that a person may act in manner prejudicial to certain state objects, arrest is made only if there is proper justification through an investigation by the police that the accused has committed some grave offenses or is going to obstruct the process of justice.
