Preventive Detention and Constitutional Safeguards in India

The Supreme Court of India reaffirmed the critical need to exercise preventive detention powers sparingly. The Court emphasised that such powers must adhere strictly to constitutional safeguards. Recent rulings clarified the distinction between public order and law and order. Preventive detention cannot replace criminal prosecution or be used to bypass bail. However, laws like the Kerala Anti-Social Activities (Prevention) Act (KAAPA) blur this line, allowing broad detention powers under vague definitions.

Historical Background of Preventive Detention

Preventive detention in India has colonial origins, starting with the Bengal Regulations of 1818. The Government of India Act, 1935, allowed provincial laws for public order. Independent India retained these powers due to communal unrest and political instability. The Constituent Assembly debated preventive detention intensely. Article 22 was crafted to balance due process with state security but excluded some protections for detainees. The landmark A.K. Gopalan case (1950) upheld preventive detention under Article 22, limiting fundamental rights protections.

Constitutional Provisions and Judicial Interpretations

Article 22(3)–(7) governs preventive detention and limits judicial review. Courts have ruled that procedural compliance under Article 22 suffices even if fundamental rights are affected. This creates a Bermuda Triangle where rights to liberty, equality, and due process can disappear. Later rulings, including A.K. Roy (1982), rejected applying proportionality or substantive rights tests to preventive detention. This isolates detainees from the Golden Triangle of Articles 14, 19, and 21, which protect equality, freedom, and life.

Judicial Safeguards and Recent Supreme Court Stance

Recent judgments, such as Dhanya M. vs State of Kerala (2025), stress that preventive detention is an exceptional power. The Court ruled it must not be used for mere law and order issues but only for serious threats to public order. It reaffirmed that detention orders require strict adherence to constitutional safeguards. The Court called for limiting executive overreach and ensuring fair judicial scrutiny. However, laws like KAAPA still allow expansive detention based on broad categories like goonda and rowdy.

Challenges and Ethical Concerns

Preventive detention raises complex legal and ethical issues. It bypasses principles like presumption of innocence and the right to a fair trial. The subjective satisfaction of detaining authorities creates risks of misuse, especially against dissenters and political opponents. The concept resembles the pre-crime scenario in the film Minority Report, where future crimes are predicted without proof. This marks the dangers of detaining individuals based on probabilities rather than evidence. Weak procedural safeguards compound these risks.

Need for Reform and Restriction

There is an urgent need to revisit judicial precedents like A.K. Gopalan and A.K. Roy. Preventive detention should be confined to grave threats such as terrorism and organised crime. Routine use for minor offences or political dissent undermines constitutional values. Strengthening procedural safeguards and judicial review can reduce misuse. Without reform, preventive detention will continue to erode fundamental rights and weaken democratic principles.

Questions for UPSC:

1. Critically discuss the constitutional provisions related to preventive detention in India and their impact on fundamental rights.
2. Examine the role of the judiciary in balancing individual liberty and state security in the context of preventive detention laws.
3. With suitable examples, discuss the ethical and legal challenges posed by preventive detention in liberal democracies.
4. Analyse the significance of Articles 14, 19, and 21 of the Constitution of India in protecting citizens against arbitrary state action. How do preventive detention laws interact with these rights?

Answer Hints:

1. Critically discuss the constitutional provisions related to preventive detention in India and their impact on fundamental rights.

1. Article 22(3)–(7) constitutionalises preventive detention, allowing detention without trial for up to 3 months initially.
2. It limits judicial review to procedural safeguards, excluding substantive rights protections under Articles 14, 19, and 21.
3. Preventive detention laws can override fundamental rights like liberty, equality, and due process, creating a Bermuda Triangle of rights loss.
4. Historical origin from colonial laws; retained post-independence due to communal tensions and security concerns.
5. Parliament empowered to enact broad preventive detention laws, sometimes dispensing with advisory board review under special circumstances.
6. Impact – curtails individual freedoms, risks executive misuse, weakens due process and fair trial guarantees.

2. Examine the role of the judiciary in balancing individual liberty and state security in the context of preventive detention laws.

1. Early rulings (A.K. Gopalan, 1950) upheld preventive detention, limiting fundamental rights challenges to procedural compliance under Article 22.
2. Subsequent judgments (A.K. Roy, 1982) rejected applying proportionality and substantive rights tests to preventive detention.
3. Maneka Gandhi (1978) expanded due process but was not fully extended to preventive detention laws.
4. Recent judgments (Dhanya M. 2025, S.K. Nazneen 2023) emphasize sparing use, strict adherence to safeguards, and distinction between public order and law and order.
5. Judiciary acts as a check on executive overreach but inconsistent enforcement and broad laws dilute protections.
6. Calls for revisiting precedents to strengthen judicial scrutiny and align preventive detention with constitutional values.

3. With suitable examples, discuss the ethical and legal challenges posed by preventive detention in liberal democracies.

1. Bypasses principles of presumption of innocence, fair trial, and audi alteram partem (right to be heard).
2. Relies on subjective satisfaction of detaining authorities, prone to misuse against dissenters and political opponents.
3. Ethical dilemma – punishing pre-crime or potential future threats without evidence (Minority Report analogy).
4. Legal challenge – weak procedural safeguards and limited judicial review undermine rule of law.
5. Risk of executive overreach and erosion of democratic freedoms under guise of security.
6. Example – misuse under laws like Kerala Anti-Social Activities (Prevention) Act with broad definitions enabling arbitrary detention.

4. Analyse the significance of Articles 14, 19, and 21 of the Constitution of India in protecting citizens against arbitrary state action. How do preventive detention laws interact with these rights?

1. Article 14 guarantees equality before law and prohibits arbitrary discrimination by the state.
2. Article 19 protects freedoms such as speech, movement, assembly, and association.
3. Article 21 ensures right to life and personal liberty with due process and fair procedure.
4. Preventive detention laws exclude these protections by restricting judicial review to procedural compliance under Article 22.
5. Courts have held that preventive detention cannot be challenged for violating Articles 14, 19, and 21, isolating detainees from these safeguards.
6. This creates a legal Bermuda Triangle where fundamental rights vanish, allowing executive misuse and arbitrary detention.