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Key Takeaways

  • Preventive detention is a provision that empowers the police to take any person into custody on the suspicion of him committing any wrongful act in the future.
  • The Constitution of India provides for protection against arrest and detention under Article 22 and violation of the Right to Life and Liberty under Article 21.
  • The preventive detention law gives the powers to the police but it is being misused and it is important to take more measures to protect the rights of the individuals.
  • The article discusses the history of preventive detention along with an analysis of case laws for the same.


The Rule of Law prescribes for equality of all citizens before the eyes of law and protection from arbitrary actions of the Government, including arbitrary use of the powers. A democratic Government has three pillars for proper working, i.e. Legislative, Executive and Judiciary. All the three bodies are interlinked to each other in tight chambers and yet are differentiated from each other. This makes the system in India very unique; it gives freedom and independence, yet has accountability.

The criminal law system is based on various theories of punishment. The theory of retribution, prevention, deterrence, reformation, etc. are all taken into consideration to come up with a system that targets to maintain peace and security in the State. The police authorities are in-charge of maintaining the security and when that authority misuses the powers given, it amounts to chaos and injustice in the country. Recently, a man was held in custody even after being released on bail by the police authority, which was condemned by the Court and the Court had asked for the Telangana Government to look into the matter.

Preventive Detention

Preventive Detention means taking a person into police custody on grounds of suspicion that the person is likely to commit some wrongful act in the future, which enables the police to arrest a person without a warrant.

Punitive detention and preventive detention are the two most common types of detention.

Detention as a punishment for a criminal offence is known as punitive detention. It occurs after a crime has been committed, or after an attempt has been made to commit the crime.

Preventive detention, on the other hand, refers to a person’s confinement in advance of committing a crime or engaging in criminal activity. As a result, preventive detention is a measure done because the individual in question is suspected of committing a crime.

The goal of preventive detention is not to punish the detainee, but to keep them from doing anything that is harmful to the state. In this way, the satisfaction of the concerned authority is a subjective satisfaction. It comprises grounds such as state security, public order, foreign affairs, and critical community services.

Preventive Detention in India

India has a long history of preventive detention and is one of the few countries in the world that possesses preventive detention rules. Critics claim that the provisions relating to preventive detention lack any safety measures that are recognized elsewhere as essential components to safeguard the basic human rights. Taking the European Court of Human Rights as an example, it has ruled that preventive detention is unconstitutional under the European Convention on Human Rights, regardless of the legislative protections in place.

In the years leading up to Independence, the British Government passed various laws allowing for preventive detention, including the Defence of the Realm Act of 1914 and the Emergency Powers (Defense) Act of 1939, which were adopted against the backdrop of World Wars I and II. However, because these laws were enacted in response to a crisis or external threat, they were permitted to expire when no such circumstance arose.

These emergency laws were eventually superseded by normal laws, such as the Anarchical and Revolutionary Crimes Act of 1919 and the Bengal Criminal Law Amendment Act of 1930, which were both extremely unpopular.

The Preventive Detention Act of 1950, passed shortly after India's independence, was the country’s first preventive detention statute (PDA). PDA was only supposed to last a year, but it was extended until 1969. Since then, India has implemented a number of similar legislations. The Maintenance of Internal Security Act of 1971(MISA) is well known for being used to arrest opposition party leaders during the Emergency in the 1970s. MISA was in effect until 1978. The National Security Act of 1980 (NSA) was enacted two years later and is still in effect today. With the exception of two brief periods in 1970-71 and 1978-80, India has always had at least one preventive detention statute. In other words, the notion of preventive detention has been irrevocably ingrained in the Indian judicial system.

Preventive Detention and the Indian Constitution

Parliament has the exclusive ability to adopt a law for preventive detention for grounds related to India’s defence, foreign affairs, or security under Entry 9 of Union List. On the other hand, under Entry 3 of Concurrent List, both Parliament and the State Legislature have the authority to adopt such legislation for reasons relating to the maintenance of public order or the provision of necessary goods or services to the community.

While clauses (1) and (2) of Article 22 of the Indian Constitution state that the state cannot deny an arrested person the right to consult and be represented by a lawyer of his choice, clause (3) serves as a sort of qualifier, stating that nothing in the first two clauses apply to anyone arrested or detained under any preventive detention law.

Additional clauses include the following safeguards: Clause (4) specifies a maximum detention time of three months and establishes an advisory board to determine whether such detention is necessary beyond the three-month limit. Clause 5 mandates that the detainee be informed of the reasons for their imprisonment “as quickly as practicable,” and that they be given the opportunity to object to the detention order.

Now the question that arises is, is preventive detention in contravention to the Constitution of India. It is a well-known fact that when people are taken into prison, it is done as a reaction to the wrong action committed by them. So how is preventive detention different from taking a person into prison? Well, when a person is taken into custody under preventive detention measures, he is taken barely on suspicion; this is not only a violation of the human rights of every individual but also the violation of Right to Life and Personal Liberty under Article 21 of the Constitution.

During a situation of Emergency, Article 4 of the International Covenant on Civil and Political Rights (ICCPR), which India has accepted, allows for derogations from guaranteeing some personal liberties. The Government, on the other hand, has not used this privilege, nor could it, because India's existing condition does not meet the standards set forth in Article 4.Detainees must be granted a minimum period of time during which the grounds for their custody are quickly communicated to them, as well as sufficient information to allow them to challenge the legitimacy of their incarceration, which is not the situation in India.

Case Laws

A.K. Gopalan v. State of Madras :[AIR 1950 SC 27]

The Preventive Detention Act of 1950, with the exception of Section 14, did not violate any of the Article of the Indian Constitution, and even though Section 14 was ultra vires in that as it violated the provisions of Article 22 of the Constitution, the invalidity of Section 14 did not affect the validity of the Act as a whole because it was severable from the rest of the Act.

Khudiram v. State of West Bengal : [AIR 1975 SC 510]

The Supreme Court stated in the case, where confinement was imposed under the Maintenance of Internal Security Act, 1971 (MISA), that the Court does not have the authority to consider the ampleness or respectability of the grounds, nor is it permitted to substitute its own supposition for that of the detaining authority, which is the most appropriate to make such decisions.

Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and Ors. : [1981 AIR 746]

The Supreme Court stated that when an officer exercises his or her authority of preventive arrest, an individual is detained on the basis of mere suspicion with the goal of preventing him or her from engaging in any potentially harmful behavior in the future. In addition, he has a limited ability to challenge the executive’s actions in this regard. The Court further stated that, due to the unique nature of preventive custody, the individual who has been detained must be subjected to minimum constraints.

Nand Lal Bajaj v The State of Punjab and Anr. : [AIR 1981 SC 2041]

While agreeing that preventive detention laws and the lack of legal representation as a framework appear to be entirely at odds with the fundamental thought of a parliamentary form of Government, the Court inferred that the issue is primarily political and is the concern of statesmen rather than the judiciary. The Supreme Court has repeatedly stated that judges must use judicial restraint and not trespass on the space of the Legislature or the Executive branch.

Joginder Kumar v. State of Uttar Pradesh : [1994 AIR 1349]

The Supreme Court of India has defined the evolution and operation of arrest legislation within the constitutional arena. The Court acknowledged that the vista of individual rights is broadening, but it also emphasised that the prevalence of crime is increasing. The Court stated that in order to strike a balance between the two contending interests, a realistic approach must be taken.

The Supreme Court ruled that an individual's liberty must be sacrificed for the greater good of the state and its security. The Court argued that these interests coexist in a democratic system, citing the maxims ‘saluspopuli suprema lex’ (the supreme law is the safety of the citizens) and ‘salusreipublicae suprema lex’ (the supreme law is the safety of the state). The Court has issued several directives in order to maintain a balance between a citizen's constitutional rights and the State’s duty to combat crime.

Ahmed Noor Mohamad Bhatti v. State of Gujarat : [AIR 2005 SC 2115]

While upholding the validity of the police’s powers under Section 151 of the CrPC to arrest and detain a person without a warrant, in order to prevent the commission of a cognizable offence, the Supreme Court ruled that a provision could not be held to be unreasonable or arbitrary, and thus unconstitutional, simply because a police official might abuse his authority and that would violate the rights of the person detained.

This preventive detention legislation is an essential instrument in the hands of the Executive, allowing them to arrest anyone who they have probable suspicion of committing any cognizable felony or whose acts are harmful to the state’s law and order, and they can do so without a warrant.

Shri Pawan Kharetilal Arora v. Shri Ramrao Wagh& Others : [2009 SCC Online Bom 600]

A man was imprisoned for nine months, based on twenty-four fake cases. Despite the fact that the grounds for detention were based on gross errors and the detaining authority made a serious error that shocked the judicial conscience, the Bombay High Court acknowledged the authority’s apology and held that the authority acted with some basic honesty and was entitled to protection under this Section.

Rekha v. State of Tamil Nadu : [AIR 2011 SCW 2262]

The Supreme Court of India ruled in this case that “Prevention detention is typically repulsive to democratic values and abhorrent to the rule of law.” In the United States and the United Kingdom, similar legislation does not exist (with the exception during wartime). We can’t hold preventive detention illegal because it is allowed under Article 22(3)(b) of the Indian Constitution. However, we should keep the intensity of preventive detention within very narrow bounds, or we will be infringing on a person’s Right to Liberty guaranteed by Article 21 of the Indian Constitution, which was won after a long, arduous, and notable battle.


The Courts have down the lane expressed the opinion that individual’s rights have to be sacrificed when the interests of the nation is in question. In case of preventive detention, that appears to be the scenario. But when there is probability of making it possible that the individual rights and the nation’s interests can be protected, the way should be taken out.

The Constitution prescribes for the protection of the Fundamental Rights but the authorities still abuse the process of law. Preventive detention is not entirely wrong but it needs to be amended keeping in mind the rights of the accused as well.

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