Chapter

Constitutionality of Detention as a Punitive Measure

B. Uma Devi

in Arrest, Detention, and Criminal Justice System

Published in print March 2012 | ISBN: 9780198075998
Published online September 2012 | e-ISBN: 9780199080953 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198075998.003.0039
Constitutionality of Detention as a Punitive Measure

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Though detention of a criminal could be constitutional if necessitated in the interests of sovereignty and integrity and/or public order in India, it becomes highly debatable whether detention as a means of ‘punishment’ would be constitutional. This chapter argues that to avoid this uncomfortable effect, the Supreme Court has been reluctant to read Articles 19 and 21 together in testing the validity of detention per se. Reading the Constitution as a composite code to determine the validity of detention per se would have a tremendous impact on the existing penal policy where imprisonment is the primary mode of punishment. While a delinquent could be detained in cases where leaving him free would pose clear and present danger to the sovereignty and integrity of India and/ or public order, he cannot be detained as a ‘punishment’.

Keywords: detention; punishment; Article 19; Article 21; India; Supreme Court

Chapter.  2924 words. 

Subjects: Human Rights and Immigration

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