Introduction
In a series of the recent judgments the Apex Court and the High Courts of the country has successfully shed more light on the ambiguity surrounding the application of preventive detention laws in India. By crystallizing the various domains regarding preventive detention, these judicial interventions have provided significant succor to the legal fraternity dealing with this contentious aspect that creates a complex interjection between individual liberty and national security.
Background
Preventive detention is one of the unique features of the Indian criminal jurisdiction. Under preventive detention laws, any person can be arrested without an actual violation of the laws of the land, which is a requisite for arrests or detention in other cases. The concept of preventive detention was adopted from the Common law principles during the colonial rule. Preventive detention was passed for the first time in the year 1950 and ever since, it has been the center severe political criticisms almost every time it is invoked. This is so because the system of preventive detention rests on a delicate balance between personal autonomy and public order.
Invocation of preventive detention laws is frequently linked with constitutional right of individuals against arbitrary arrests. Article 22 of the Constitution provides for protection against arrest and detention which includes right to be informed of the grounds of arrest, right to consult and be defended by a legal practitioner etc. However, preventive detention is an exception to these instances. Article 22 itself specifies the conditions that exclusively apply in case of preventive detention.
Initially, the domain of preventive detention was very ambiguous. Numerous judgments delivered by the courts have brought about more clarity on the various aspects connected to preventive detention. In the 1981 decision of Tara Chand v State of Rajasthan, the Supreme Court held that, upon preventive detention, Article 22(5) of the constitution imparts an obligation on the appropriate Government to afford earliest opportunity to the detenue to make detention. Later, in Rattan Singh v State of Punjab and Ors. (1981), the court reiterated that preventive detention laws only afford a modicum of safeguard to persons detained. Hence, if principles of freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safeguards are not denied to the detenue. In the landmark Ameena Begum Case (2013), The Supreme Court held that preventive detention is an exceptional measure meant for emergency situations and should not be used routinely. In the recent days as well, the limits of preventive detention and its clash with constitutional rights. On 5th March 2025, in the case of Mortuza Hussain Choudhary v State of Nagaland, the court unequivocally asserted that preventive detention is a draconian measure requiring strict adherence to constitutional and statutory safeguards. Lastly, in the very recent case of Dhanya M v State of Kerala & Ors., reaffirmed that preventive detention must be exercised sparingly and only in cases involving a real threat to public order, not merely law and order.
Key Points
- Reaffirmation of fundamental rights: The Supreme Court held that prevention, despite being an extreme measure, is sanctioned by Article 22(3)(b) of the Constitution of India. However, the provision itself envisages certain stringent norms that are required to be adhered to while effecting preventive detention. Since preventive detention deprives a person of his or her individual liberty by detaining them for a limited period of time, without being tried and convicted of a criminal offence, the safeguards that are prescribed under the provision must be strictly observed to ensure dure compliance with constitutional and statutory norms and requirements.
- Specification of grounds: referring to provisions such as section 3 of the Act, Article 22(5), the court reiterated the mandate that the order of detention must be accompanied by the grounds of detention, prepared by the detaining authority itself. The court further clarified that, here communication must mean bringing home to the detenue effective knowledge of the facts and circumstances on which the order of the detention is based.
- Threat to public order differentiated from threat to law and order: while the expression ‘law and order’ is wider in scope in as much as contravention of law always affects order, ‘public order’ has a narrower ambit, and could be affected by only such contravention, which affects the community or the public at large.
- Detention orders not immune from scrutiny: By reconsidering the validity of preventive detention orders issued by the concerned authorities in various cases, the court has impliedly indicated that such order are not absolute and that they do not enjoy any protection from judicial scrutiny.
Recent Developments
In its judgment dated, the Supreme Court set aside a preventive detention order issued under the KAAPA Act, thereby emphasizing that the extraordinary power of preventive detention cannot be used merely as a substitute for criminal prosecution or to circumvent bail orders.
The Court crystallized the principal difference between a situation threatening public order and a law-and-order situation, and that only the former can be used as a ground for issuing an order of preventive detention.
Conclusion
In the light of the analysis of the interpretations and mandates laid down by the interpretations of the courts of the country, it has become evident that preventive detention cannot be invoked arbitrarily and without the exercise of due diligence. Its constitutional permissibility doesn’t imply that it may be invoked in any instance of threat. The concerned threat must be of the specific nature laid down in the statute, for the detention to become valid one. Since preventive detention puts the individual liberty in significant restrictions, the clarifications made by the judicial interpretations hold significant value in ensuring that the balance between public order and personal freedom is not unjustly titled to serve the interests of any entity.
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WRITTEN BY AYANA THERESA XAVIER
