The Legality of Preventive Detention

Preventive Detention, as the word suggests, is the anticipatory measure wherein the person is incarcerated in order to thwart him from committing any wrongful activity which is prohibited by the Indian Penal Code, 1860. As per Section 151 of the Criminal Procedure Code, 1973, Preventive Detention can only be undertaken on the ground that the said person is suspected of doing some wrong. In contrast to this, the Article 22 of the Indian Constitution provides for the protection of every person including citizens as well as non-citizens with the exception of enemy aliens, from the arrest and detention in any case which is not in conformity with the procedure established by law.

At this juncture, one needs to know that there exists a difference between arrest and preventive detention. An arrest is when the person is charged with any offence committed by him, but in case of Preventive Detention, the person is merely restricted from doing something to maintain the law and order situation.

The Legal Journey

The legal expedition of Preventive Detention has started right from the commencement of the Constitution. The legality of the Preventive Detention was first probed in the case of AK Gopalan in the year 1950, where it was held that Preventive Detention comes under the framework of the Constitution and is constitutionally valid. The 44th Amendment Act tried to cut the maximum specified period of Preventive Detention from three months to two months but such a step was taken without obtaining the opinion of the Advisory Board.

However, the provision has not been brought into the force and the period of three months stands still. This constitutional validity was again held by the Supreme Court in 2005, in the case of Ahmed Noor Mohamad Bhatti v. State of Gujarat, were SC was of the view that the power of police under Section 151 of CrPC, to arrest the person without a warrant is not unconstitutional merely because the police officer might abuse his authority. This means of Preventive Detention is a required tool in the hands of the Executive.

The framers of the Constitution who suffered the most because of the Preventive Detention Laws did not hesitate to give sanctity in the Fundamental Rights itself. Members try not to prohibit but to provide the safeguards against its mishandling by the public authorities by giving sufficient powers to the advisory boards, but in the spirits, it can be seen nowhere.

In the case of Preventive Detention, though the person is entitled to know the ground for his detention, the authorities can deny it on the ground of public interest and thereby leaving the scope for arbitrariness on the part of authorities. Article 22(3) clearly mentions that when the person is detained under the preventive detention laws, protection under Article 22(1) and 22(2) shall not be available to him.

Numerous laws were enacted on the issue of Preventive Detention as the Constitution of India vests the power of making laws in this context to both the Parliament and the State Legislatures. The various laws of the Parliament include the Preventive Detention Act, 1950 (Expired in 1969 as per its provisions), Maintenance of Internal Security Act, 1971 (Repealed in 1978), Terrorist and Disruptive Activities Act, 1985 (Repealed in 1995), Prevention of Terrorism Act, 2002 (Repealed in 2004). But none of these was able to be in force for a long time since either they were explicitly made for a specified duration or they were repealed. List 3 of the Indian Constitution authorizes the legislatures, both at Central and State, to make laws regarding the Preventive Detention even in the peace-time to preserve peace and public order.

In the words of Alladi Krishnaswamy Ayyar, ‘Preventive Detention is a necessary evil because in a society there will always be people who would test the sanctity of the Constitution.’ The Gardiner Committee Report says ‘Preventive Detention can only be tolerated in the democratic societies in the extreme circumstances.’

In the United States, under the Preventive Detention Act of 1984, the Federal Courts can detain arrestees if it can be showed that there is no other way which could prevent the safety in the community. The validity of the same was upheld by the US Supreme Court in the case of United States v. Salerno.

International Norms

European Court of Human Rights contemplated the Preventive Detention in the Indian Constitution as illegal under the European Convention on Human Rights even after the safeguards provided under the law. Even International ideals are not taken care of in the current scenario. Article 4 of ICCPR (International Covenant on Civil and Political Rights), ratified by India, permits derogation from the personal liberty guaranteed by the State only in case of an emergency situation in the country. Even the South Asia Human Rights Documentation Centre in August 2000 recommended NCRWC (National Commission to Review the Working of Constitution) to delete the provisions of the Constitution permitting Preventive Detention; the reason being that India is the only country that provides for Preventive Detention in its Constitution even during the peacetime.

It was even recommended that the word ‘Satisfaction’ of the authorities is very vague and there should be a well-defined framework specifying the circumstances in which Preventive Detention may be exercised. Lack of judicial involvement interrupts the right to appear before the judiciary and is in infringement of Article 14 (1) of ICCPR and Article 10 of UDHR (Universal Declaration of Human Rights). The provision of referring the matter to the advisory board is only to continue the detention beyond three months and that too once; there is no provision for periodic review so as to ensure that detention is fair and just.


If India is proud of its Democracy and of providing its citizens all the basic rights, then it is high time to either remove the provision of Preventive Detention or to confine it to specific and limited circumstances with adequate safeguards in protecting the detinue. It is the call of time to protect the people from vulnerabilities to the tortuous treatment, to prevent officials misusing Preventive Detention to penalize dissent from Government and to prevent overenthusiastic Government prosecutors from sabotaging the criminal process.

Editor’s Note
India being a democratic country, the Constitutional values are of utmost importance in the governance of the country. The concept of Preventive Detention has been a topic of debate for decades. The Constitution of India and the Criminal Procedure Code allows Preventive Detention in India which is seen to be in derogation with many of the international law ideals and norms enshrined in various international conventions and other international documents. This article tends to explain the concept of Preventive Detention, the various legislations related to Preventive Detention in India as well as the international perspective related to Preventive Detention. The author concludes by saying that the provisions relating to Preventive Detention should either be deleted or there should be a very specific framework stating that the method of Preventive Detention can be used only in certain specified and confined circumstances along with safeguards for the detainees.  

Submitted by Aayush Panwar

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