There is nothing more foreign to a civilised and democratic system than
preventive detention.- Robert Bourassa
Article 21 of the Constitution, being an integral part of the rights guaranteed
under Part III of the Constitution of India, provides that no person shall be
deprived of his life and liberty except according to the procedure established
by law. However, if any person is bereaved of his rights in accordance with the
procedure prescribed by law, then it cannot be regarded as wrongful.
Article 22, which deals with the protection against arrest and detention,
fulfils those procedural requirements which Article 21 provides for. It can be
divided and read under two headings. Persons arrested under ordinary
circumstances and persons detained under the Preventive Detention laws.
The term 'Preventive Detention' has not been defined under Indian law.
Nonetheless, as defined by Britannica, the practice of incarcerating accused
individuals before trial on the assumption that their release would not be in
the best interest of society or that they would be likely to commit additional
crimes if they were released is known as Preventive Detention. This term is
antithesis to the term 'punitive'.
Such a detention is not a punitive but a
preventive measure. The interception is based merely on suspicion so as to avoid
any harm at a later stage. This concept was laid down by Lord Finley in R v. Haliday
[1917 AC 260, 269]
History Of Preventive Detention
A regulation for the confinement of State Prisoners, The Bengal Regulation III,
1818 was enacted by the British East India Company in the state of Bengal to
detain any person for an indefinite period of time suspected to have committed
an offence without being tried. Similar legislations were also passed in the
Presidency towns of Madras and Bombay.
The term 'Preventive Detention' originated from the Defence of Realm Act, 1914
which was enacted during the First World War. It was akin to the act passed in
1818 during the Company's regime and it remained in force until 1927. During the
World War II, the United Kingdom Parliament enacted the Emergency Powers (Defence)
Act in 1939 when Britain entered the war.
It empowered the Parliament to impose
any rules or regulations to secure public safety, to address the issue of law
and order and to enable the efficient prosecution of war. During the First and
Second World Wars, the British Parliament empowered the government to pass
orders of preventive detention and the courts upheld the power on the ground of
necessity in the constitutional decision of Liversidge v. Anderson, 1942 AC 206.
Furthermore, The Rowlatt Act of 1919 which was enacted by the Imperial
Legislative Council accorded authority to the police officials to arrest
suspects without a warrant. Also, the act permitted certain political arrestees
to be tried without a jury and empowered internment of the detainees without
Their main motive was to substitute the repressive
provisions of the Defence of India Act, 1915 which was passed during the First
World War by a permanent legislation to prevent revolutionaries from actively
participating in any protest.
As far as global history is concerned, this form of penalty has been in use in
the civil- law countries, primarily France and Belgium. Preventive Detention was
also used to some extent, by some autocratic leaders. Soviet Union, which is now
Russia, exercised detention wherein the accused were comprehended as security
threats to the ruling dispensation.
However, no powers of preventive detention
were exercised by the British Parliament during times of peace. Nonetheless,
some countries such as India and the USA recognize and continue the concept of
preventive detention during irenic times as well.
Preventive Detention Enactments In India
Even after the cessation of the War, preventive detention was continued in India
as an instrument to suppress apprehended breach of public order, public safety,
and the like by the Provincial Maintenance of Public Order Acts, under which
there was a spate of litigation. Preventive detention laws are repugnant to
democratic constitution and they are not found in any of the democratic
In A.K. Gopalan v. State of Madras
AIR 1950 SC 27, Patanjali Shashtri, J.,
explaining the necessity of this provision said: "The sinister looking feature,
so strangely out of place in democratic Constitution, which invests personal
liberty with the sacrosanctity of a fundamental right, and so incompatible with
the promises of its preamble, is doubtless designed to prevent the abuse of
freedom by anti-social and subversive elements which might imperil the national
welfare of the infant republic."
The Constitution of India capacitates both the Union Government and the State
Governments to enact laws on the subject of "Preventive Detention". Entry 9 in
List I of the Seventh Schedule of the Constitution empowers the Central
Government to formulate statutes for matters relating to "preventive detention
for reasons connected with Defence, Foreign Affairs, or the security of India
and persons subjected to such detention".
Similarly, Entry 3 in List III of the
Seventh Schedule confers powers on Central and State Legislatures concurrently
to legislate for matters relating to "preventive detention for reasons connected
with the security of a State, the maintenance of public order, or the
maintenance of supplies and services essential to the community and persons
subjected to such detention". This legislatorial power is applicable only to
Part III of the Constitution which guarantees several fundamental rights to
persons or citizens.
The first Preventive Detention Act was enacted by the Parliament on 26th
February, 1950. The object of the act was to take precautionary measures to
restrict a person from acting in a manner which could threaten the security of
the nation and who make it wearisome for the government of the day to perform
Drafted by the first Home Minister of India, Sardar Vallabhbhai
Patel, the Act of 1950, named as the "Preventive Detention Act, 1950" was a
transitional law. Though initially it was thought of to be applicable only for a
period of one year till 1951, yet it remained in force till 31st December, 1969
when it was abrogated.
A necessity arose again for the regeneration of the preventive detention laws
when a situation of nihilism appeared on the front in 1971. The new enactment
was named as 'The Maintenance of Internal Security Act, 1971, popularly known as
MISA. It was largely similar to the provisions of the Act of 1950. The main
motive of the act was to provide for detention in certain cases for the purpose
of maintenance of internal security.
The law was amended several times during
the National Emergency from 1975 to 1977. MISA was inserted in the 9th Schedule
of the Constitution vide the 39th Amendment Act, thereby making it totally
immune from any judicial review. The Janata-led government after its election,
repealed the act in 1978 and the 44th Amendment removed it from the schedule as
In 1974, the Parliament passed the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974, commonly referred to as the
COFEPOSA. It was passed as an economic auxiliary to the MISA. While the MISA was
aimed at controlling provocative activities, the COFEPOSA is aimed to prevent
sociopathic activities like smuggling and racketing in foreign exchange. An
extra power was required to check when inflation, black marketing, smuggling
Later on, in 1980, another new enactment named as the Prevention of Black
Marketing and Maintenance of Supplies of Essential Commodities Act was enacted.
It aimed at prevention of black marketing and hoarding of essential commodities.
Furthermore, power of preventive detention has been conferred on the Central and
State Governments to safeguard defence and security of the country and to
maintain public order by enacting the National Security Act, 1980. People
inciting communal and caste based riots were also detained under the NSA. This
enactment is considered a close iteration of the 1950 Act.
By the end of the 8o's, in 1987, another preventive detention law called the
Terrorist and Disruptive Activities (Preventive) Act, 1987 or the TADA as it is
called was formulated and passed. It was enacted with a view to dealing with
specific situations of terrorism in Punjab, Kashmir and parts of the North-East
India. The government can also detain a person to prevent him from disrupting
public order or for maintenance of supplies and services essential to the
community. Nonetheless, it was repealed in 1995 due to its widespread
unpopularity because of the law being misused.
Many other coercive legislations like Armed Forces (Special Powers) Act, 1958 (AFSPA),
the Essential Services Maintenance Act (ESMA, 1968) have also been brought
forth. A controversial successor to such enactments include the Prevention of
Terrorism Act (POTA, 2002), which was criticized for authorizing excessive
powers for the aim of fighting internal and cross-border terrorism and political
violence, without safeguards for civil freedoms.
Grounds Of Preventive Detention
Preventive Detention can be exercised under the following cases only:
- Security of the State
- Maintenance of public order
- Maintenance of supplies and essential services and defense
- Foreign affairs of the state
Constitutional Safegaurds Against The Preventive Detention Laws
The Constitution has acknowledged the necessity of the Preventive Detention
laws. However, it has also provided some safeguards to reduce the force of their
severity by curbing the legislative powers conferred on the Legislature.
A bench led by Justice Rohinton F. Nariman observed "Preventive detention is a
necessary evil only to prevent public disorder. The court must ensure that the
facts brought before it directly and inevitably lead to a harm, danger or alarm
or feeling of insecurity among the general public or any section thereof at
Clauses (4) to (7) of Article 22 guarantee the following safeguards to a person
arrested under preventive detention laws.
This clause reiterates that preventive detention of a person shall not be
authorised extending three months period except on the report which contains a
sufficient cause of detention by an Advisory Board.
This clause states that the grounds of detention shall be communicated to the
detenu by the authority making such order and he shall be allowed to make a
representation against the order of such detention.
This clause expresses that the authority making an order of detention is not
pressed upon to divulge in facts which such authority considers to be against
the public interest to disclose.
This clause provides that the Parliament may formulate laws as to:
- The circumstances under which a person may be detained for a period longer than three months without the opinion of the Advisory Board.
- The maximum period for which any person may be detained under any preventive detention law.
- The procedure to be followed by an Advisory Board in an inquiry.
Preventive Detention And The Judiciary
- Maneka Gandhi v. Union of India AIR 1978 SC 597
The court held in this case that a law relating to preventive detention must now satisfy not only the requirements of Article 22 but also the requirements of Article 21 of the Constitution. The procedure prescribed under the preventive detention law must be reasonable, just and fair under Articles 14, 19 and 21 of the Constitution.
- Ram Bahadur v. State of Bihar AIR 1975 SC 223
The court in this case held that any order of detention would be deemed to be invalid if any ground was found to be vague where the order was based on distinct and separate grounds.
- Attorney General of India v. Amrit Lal Prajivandas (1994) 3 SCC 234
A nine judge constitution bench upheld the validity of two legislations, the COFEPOSA and the Smugglers and Foreign Exchange Manipulator (Forfeiture of Property) Act, 1976, or the SAFEMA. Since both these enactments were enacted with a view to meet the threat to the security of India, the efficacious execution of the laws was sustained by the apex court.
- A.K. Gopalan v. State of Madras AIR 1950 SC 27
The Supreme Court struck down Section 14 of the Preventive Detention Act, 1950 as unconstitutional on the ground that it precluded a judicial inquiry into the legality of the detention under the said act.
Preventive Detention, as a mode of restricting freedom of people can be
considered to be fair for the purpose of protecting the nation's integrity and
security. However, the laws so enacted should not be under the garb to beef up
our national security and infringe our fundamental rights.
will, however, always be considered 'arbitrary' if safeguards for those arrested
and detained are not complied with, in particular the right to judicial review
of the lawfulness of detention. A hypothesis of the legality of preventive
detention legislation within a State must therefore be adjudged and analyzed as
pitch- perfect and correlative of the particular preventive detention measures.
Written By: Aanandita Tandon
- Bare Act: The Constitution of India, 1950 (Edition 2019)
- Constitutional Law of India by Dr. J.N. Pandey (56th Edition), Publishers Central Law Agency.
- Krishnadas Rajagopal, Preventive Detention A Necessary Evil Only To Prevent Public Disorder: Supreme: Courthttps://www.thehindu.com/news/national/preventive-detention-a-necessary-evil-only-to-prevent-public-disorder-supreme-court/article35688565.ece (Visited on 3.11.23)
- Claire Macken, Preventive Detention And The Right Of Personal Liberty And Security Under The International Covenant On Civil And Political Rights, 1966:
https://www.ilsa.org/Jessup/Jessup16/Batch%202/MackenDEtention.pdf (Visited on 4.11.23)
- Shreya Malhotra, Preventive Detention Laws In India: https://blog.ipleaders.in/preventive-detention-laws-india (Visited on 3.11.23)
- Preventive Detention: https://www.britannica.com/topic/preventive-detention
, Advocate practising in Chandigarh