PREVENTIVE DETENTION: A NECESSARY EVIL OR HUMAN RIGHTS VIOLATION?

There is nothing more foreign to a civilised and democratic system than preventive detention. – Robert Bourassa

INTRODUCTION

Modern democracies thrive on pillars of personal liberty, freedom and human dignity. However, the situation becomes paradoxical when power is bestowed on the state to restrict this liberty in the name of national security and public order. Which is exactly what happens in preventive detention. Normally, a series of procedures, such as trial and conviction, happen after which punitive detention is awarded. But preventive detention allows authorities to detain individuals on the suspicion or apprehension that if left free, they might commit an offence. 

Preventive detention is provided for in the Constitution of India in Article 22 (3) to (7). This gives the government the power to bypass certain safeguards granted to arrested persons, given in procedural codes. The legal provision of preventive detention is invoked under many legislations, such as the National Security Act, 1980, Unlawful Activities (Prevention) Act, 1967, and the Jammu and Kashmir Public Safety Act, 1978. While it is intended to act as a guard against threats to sovereignty, public order and security, it draws criticism for being used as a tool to suppress and target certain voices. 

This blog explores the legal framework, history and evolution, and judicial views on preventive detention in India. It provides arguments from both sides, for and against preventive detention. It briefly goes through the recent cases on preventive detention. 

WHAT IS PREVENTIVE DETENTION?

Preventive detention is a kind of detention of a person by the State without a formal trial or charge. The detention is on the belief that the individual might commit offense(s) that are dangerous for the public, national security of the state. It is exactly opposite to punitive detention, which is awarded after a trial is finished and the individual is convicted. 

Preventive detention in the Constitution of India

Article 22 of the constitution protects against detention in certain cases, but also lays down preventive detention. The following clauses of Article 22 deals with preventive detention:

Article 22 (3)- Nothing in clauses (1) and (2) shall apply—

(a) to any person who for the time being is an enemy alien; or

           (b) to any person who is arrested or detained under any law providing for preventive detention.

Article 22 (4)– No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless—

1. an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:

Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or

2. such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).

Article 22 (5)- When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

Article 22 (6)- Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.

Article 22 (7)– Parliament may by law prescribe—

(a)the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);

(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and

           (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4). 

Legislation governing preventive detention

Preventive Detention in India is governed by laws such as: 

1. National Security Act, 1980 (NSA), which allows for the detention of individuals who pose a threat to national security or public order up to 12 months (renewable every 3 months). 
2. Unlawful Activities (Prevention) Act, 1967 (UAPA) allows detention without a charge sheet up to 180 days in cases related to terrorism. 
3. Jammu and Kashmir Public Safety Act, 1978 allows preventive detention for 6 to 24 months and has been applied despite the abrogation of Article 370 in 2019. 

The Maintenance of Internal Security Act (MISA) and the Preventive Detention Act, 1950 had similar objectives, although they are now repealed. These legislations were infamous during the Emergency (1975–77) for large-scale misuse.

PREVENTIVE DETENTION: ARGUMENTS IN FAVOUR

Despite the critical views on preventive detention, it is defended as a necessity in a country like India, which faces serious threats to its national security, communal harmony and public order. The main argument is that the right to liberty of an individual cannot override the right to life on a national level. Some of the key arguments in favour of preventive detention are: 

1. National Security 

India faces imminent dangers to its security due to cross-border terrorism. Parts of the country are prone to insurgency and communal conflicts. This makes it necessary to take a cautious approach by acting before the threat materialises. Take, for example, the National Security Act, 1980, which has often been invoked to prevent communal riots or maintain peace during volatile protests. The Jammu and Kashmir Public Safety Act has been used to maintain control in areas prone to conflict, especially after Article 370 was abrogated in 2019.

2. Deterrence of terrorism 

Preventive terrorism allows authorities to prevent and deter severe crimes such as terrorism, which can scare society as a whole. In cases of terrorism or organised crime, where collecting admissible evidence is challenging and time-consuming, preventive detention allows the authorities to neutralise potential threats. The UAPA’s provision for 180-day detention without charge sheet is often defended on these grounds.

3. Constitutional backing and judicial precedents

Preventive detention is mentioned in the Constitution of India, which means it is backed by the supreme law of our country. Even the Supreme Court of India has upheld the constitutionality of preventive detention with some procedural safeguards. In Alijav v. District Magistrate, Dhanbad (1983), the Court stated that the law of preventive detention was “valid as long as procedural safeguards are followed.” 

4. International precedents

Preventive detention is invoked in emergencies in countries like the United States and the United Kingdom. After 9/11, the U.S. detained terror suspects at Guantanamo Bay without trial for years, citing national security. The UK passed the Anti-terrorism, Crime and Security Act, 2001, which allowed indefinite detention of foreign nationals suspected of terrorism.

These global practices are cited by Indian authorities to justify preventive detention in India and to assert that preventive detention is not something only India has adopted, but it is a strategy to counter terrorism globally. 

ARGUMENTS AGAINST PREVENTIVE DETENTION

It is often argued that preventive detention is used to suppress dissent against the government and to circumvent what is laid out in procedural laws. Some of the major arguments against preventive detention are as follows:

1. Violative of Fundamental Rights and Natural Justice

It is often argued that preventive detention is violative of Article 21 of the Constitution of India, which provides the right to life and personal liberty. In Maneka Gandhi v. Union of India (1978), the Supreme Court held that “procedure established by law” under Article 21 must be just, fair, and reasonable. However, preventive detention laws allow detention without even informing the detainee of the full reasons or providing immediate legal counsel. 

2. Arbitrary nature

Critics often argue that preventive detention is arbitrarily applied and is used to suppress dissent. It can be used to harass individuals who are engaged in activism. 

3. Conflict with International Human Rights

India is a signatory to the International Covenant on Civil and Political Rights (ICCPR). Article 9 of the same mandates that no one shall be subjected to arbitrary arrest or detention and its Article 14 states that all detainees must be informed of reasons and allowed to challenge detention before a court. Preventive detention does not go in line with the international human rights laws. 

4. Effect on free speech and protest

Preventive detention laws have a deterrent effect on legitimate protest and free speech. In many cases, peaceful demonstrators or dissenters are detained merely on pre-emptive suspicions. This undermines democracy. The use of preventive detention during the anti-CAA protests, the farmers’ protests, and in regions like Manipur and Kashmir suggests a pattern of using executive power to stifle opposition.

CONCLUSION

The conflict between the security of the state and individual rights requires safeguards to use preventive detention only in legitimate cases but ensuring that it is not being abused. Transparency in the process of preventive detention is necessary. It is important to have a balanced strategy while approaching preventive detention. In ADM Jabalpur v. Shivkant Shukla, J. Khanna said that, “without sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning.”

AUTHOR: SARGUN SINGH

REFERENCES

1. Preventive detention a necessary evil: Supreme Court, Civils Daily. (Available at: https://www.civilsdaily.com/news/preventive-detention-a-necessary-evil-supreme-court/)
2. National Security Law of the People’s Republic of China. (Available at: https://en.jxsjgjt.com/news/768.html) 
3. Niger: Six month-long arbitrary detention of human rights defender Moussa Tchangari must end, Amnesty International, June, 2025. (Available at: https://www.amnesty.org/en/latest/news/2025/06/niger-arbitrary-detention/) 
4. Anti-terrorism, Crime and Security Act 2001, United Kingdom (Available at: https://www.legislation.gov.uk/ukpga/2001/24/contents)
5. Fight against unjust national security practices and policies (Available at: https://www.aclu.org/issues/national-security) 
6. International Covenant on Civil and Political Rights, United Nations Human Rights. (Available at: https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights) 
7. Maneka Gandhi vs Union Of India, AIR 1978, SC 597
8. ADM Jabalpur v. Shivkant Shukla, AIR 1976, SC 1207