The Supreme Court in Dhanya M. vs State of Kerala (2025) struck down a preventive detention order, warning that such powers must be used sparingly and in strict accordance with constitutional safeguards.
Preventive Detention
- Preventive detention means detaining a person to prevent them from committing a possible offence in the future, not for something they have already done.
- It is a precautionary measure used by the State when it suspects that a person may act in a manner that threatens public order, national security, or the maintenance of essential supplies.
- Articles 22(3) of the Constitution allow preventive detention, making India one of the few democracies to do so even in normal times.
- The concept dates back to British colonial rule, such as the Bengal Regulation of 1818, used to suppress dissent.
Judicial Developments and Concerns
- A.K. Gopalan vs State of Madras (1950) upheld preventive detention laws, isolating Article 22 from other fundamental rights.
- A.K. Roy vs Union of India (1982) continued this trend, refusing to apply Articles 14, 19, and 21 protections to detention laws.
Conflict with “Golden Triangle”
- The Golden Triangle of Articles 14 (equality), 19 (freedoms) and 21 (life and liberty) ensures due process.
- Preventive detention forms a “Bermuda Triangle”, where these rights often disappear due to executive overreach.
Colonial Legacy and Continuing Misuse
- Post-Independence, governments retained colonial-style detention powers, using them to maintain public order, handle protests, and suppress dissent.
- Broad definitions like “goonda” and “rowdy” under KAAPA allow misuse against petty offenders or political opponents.
- Scholars such as Gautam Bhatia and Granville Austin note that preventive detention has become a routine administrative tool rather than a rare emergency measure.
Way Forward
- Re-examine outdated precedents such as A.K. Gopalan and A.K. Roy.
- Restrict use only to grave threats like terrorism and organized crime.
- Strengthen safeguards—periodic review, transparency, and stricter judicial oversight.
- Reinforce constitutional balance between security and liberty to prevent misuse of “pre-crime” powers.
CONSTITUTIONAL PROVISIONS
Article 22 (Clauses 3 to 7) – Part III (Fundamental Rights)
- Article 22 provides rights to persons who are arrested or detained, including those under preventive detention.
- It permits preventive detention but lays down safeguards to prevent misuse.
Key Points under Article 22:
- Article 22(3)(b): The protection of personal liberty (right to be informed of reasons for arrest and right to lawyer) does not apply to a person detained under a preventive detention law.
- Article 22(4): No law can authorise preventive detention for more than 3 months unless approved by an Advisory Board.
- Article 22(5): The person detained must be informed of the reasons for detention as soon as possible.
- Article 22(6): The government may withhold facts that it considers to be against the public interest from disclosure to the detainee.
- Article 22(7): Parliament may by law:
- Authorise detention for more than 3 months without Advisory Board approval.
- Prescribe maximum detention periods under preventive detention laws.
Maximum Period of Preventive Detention
- The Constitution does not fix a uniform period; it authorises Parliament to set limits.
- National Security Act (NSA), 1980 → Maximum detention up to 12 months.
- COFEPOSA Act (1974) → Preventive detention for up to 1 year (can extend in special cases).
Major Preventive Detention Laws in India
- National Security Act (NSA), 1980: Used to detain individuals who threaten national security or public order.
- COFEPOSA Act, 1974: Deals with smuggling and foreign exchange violations.
- Unlawful Activities (Prevention) Act (UAPA), 1967: Used against individuals involved in terrorist activities.
Conclusion:
Unchecked preventive detention erodes constitutional freedoms and mirrors a “pre-crime” system where suspicion replaces proof. India must urgently reform this framework to uphold the spirit of justice, liberty, and due process.
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