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Articles 22(3) – (7), which constitutionalised preventive detention, are the Bermuda Triangle successful India’s law Atlantic wherever cardinal rights specified arsenic liberty, equality and owed process vanish without a trace.
In June this year, portion mounting speech a preventive detention bid nether the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA) successful Dhanya M. vs State of Kerala (2025 INSC 809), the Supreme Court of India underscored that the bonzer powerfulness of preventive detention indispensable beryllium exercised sparingly and strictly successful accordance with law safeguards. Reaffirming the rule that idiosyncratic liberty cannot beryllium curtailed lightly, the Court highlighted the captious favoritism betwixt “public order” and “law and order” and clarified that preventive detention cannot beryllium utilized arsenic a substitute for transgression prosecution oregon arsenic a means to circumvent bail orders.
Similarly, successful S.K. Nazneen vs State of Telangana (2023), the Court held that preventive detention was not justified erstwhile the lawsuit pertained to a specified instrumentality and bid contented alternatively than a nationalist bid concern.
However, specified judicial assertions look progressively inconsistent with the cognition of laws specified arsenic KAAPA, which envelop the full Milky Way of “law and order” alternatively than confining themselves to the star strategy of “public order”, owed to their wide definitions of “goonda” and “rowdy”.
The judgement successful Dhanya M. referenced Rekha vs State of Tamil Nadu, wherever the Court held that the powerfulness of preventive detention is an objection to Article 21 and indispensable beryllium treated arsenic specified — an exceptional measurement to beryllium employed lone successful uncommon circumstances. Likewise, successful Banka Sneha Sheela vs State of Telangana (2021), the Court reiterated that immoderate enactment involving preventive detention indispensable beryllium tested against the standards of Article 21. These rulings connection a faint glimmer of airy astatine the extremity of a tunnel, yet enforcement overreach continues unchecked successful the domain of preventive detention.
A law abyss
Preventive detention successful India has a agelong lineage, dating backmost to the Bengal Regulations of 1818, devised by the British to support assemblage control. The Government of India Act, 1935, empowered provincial legislatures to enact preventive detention laws successful the involvement of “public order”. Although Britain employed specified measures lone during wartime, autarkic India inherited and retained this assemblage relic with astonishing zeal.
In The Indian Constitution: A Conversation with Power, Gautam Bhatia says: “Occupying an ambiguous portion betwixt the (formally) bonzer and the (practically) ordinary, preventive detention was thoroughly embedded into the Indian ineligible scenery astatine the clip of Independence: truthful overmuch truthful that, facing a concern of communal tensions, communist uprisings, and the Partition, it turned into a nationalist bid instrumentality nether the recently autarkic national and provincial governments.”
Preventive detention was fiercely debated successful the Constituent Assembly. The prevailing communal unrest lent it immoderate legitimacy. Gautam Bhatia astutely observes that “Article 22 was framed arsenic a Janus-faced proviso — incorporating elements of owed process, and past excluding them from the scope of preventive detention laws.”
The lawsuit of A.K. Gopalan vs State of Madras (1950) became a litmus trial for the nascent republic’s committedness to the law citizen’s close to beingness and liberty. Gopalan, a communist leader, was detained nether a assemblage law, aboriginal revalidated by the Preventive Detention Act, 1950. He challenged his detention nether Article 21, citing the lack of “procedure established by law”, and nether Article 19, alleging a usurpation of his freedoms of question and speech. The Court, however, rejected his claims, holding that preventive detention could lone beryllium tested connected the ground of Articles 22(3)–(7).
Thus, Article 22 became an “authoritarian penal colony” oregon a “Devil’s Island” successful India’s law geography — isolated from the water of cardinal rights. Parliament was empowered to enact laws that could adjacent dispense with the advisory committee reappraisal required nether Article 22(4), by simply invoking peculiar “circumstances” oregon “classes of persons”. Somnath Lahiri rightly warned that specified provisions rendered the Indian Constitution a “Police-Constable Constitution.”
When the aureate triangle eclipses
Subsequent judgments fortified this law Devil’s Island. The apical tribunal ruled that adjacent erstwhile the grounds of detention straight implicated a cardinal right, it was capable for authorities to comply with the procedures successful Article 22 — determination was nary request to conscionable the substantive restrictions applicable to cardinal rights. This presumption endured contempt the Court’s revolutionary judgement successful Maneka Gandhi vs Union of India (1978), which held that “procedure established by law” indispensable mean fair, conscionable and tenable owed process, and that cardinal rights indispensable beryllium work arsenic a unified whole.
Yet, successful A.K. Roy vs Union of India (1982), the Court fell backmost connected pre-Maneka reasoning to asseverate that preventive detention laws could not beryllium challenged for violating Articles 14, 19, oregon adjacent the enriched mentation of Article 21. The Court besides refused to taxable specified laws to the doctrine of proportionality, which had go a cardinal tenet of law reappraisal elsewhere successful the rights framework. Thus, a idiosyncratic ensnared successful this Bermuda Triangle of Article 22 is efficaciously chopped disconnected from the Golden Triangle of Articles 14, 19, and 21, and is plunged into ineligible darkness.
Granville Austin, successful Working a Democratic Constitution: A History of the Indian Experience (1999), prophetically observed: “Preventive detention had had seductive charms for the enforcement branch, arsenic the erstwhile Chief Justices’ missive [to the President and Prime Minister successful 1966] had pointed out. Although possibly a ‘necessary evil’ successful immoderate situations — specified arsenic witnesser intimidation — it easy became a crutch whose overuse produced not lone injustice to individuals but besides atrophy successful constabulary investigatory and prosecutorial skills. These hazards would lone intensify implicit time.”
Dilemma of the pre-crime
Steven Spielberg’s Minority Report (2002) — based connected Philip K. Dick’s 1956 abbreviated communicative — powerfully dramatises the jurisprudential dilemmas of preventive detention, peculiarly successful wide democracies. In the film, a peculiar constabulary portion called PreCrime uses precognitive humans (Precogs) and precocious exertion to forestall murders earlier they occur. The protagonist is apprehended for a execution helium has not yet committed. He is presumed guilty, denied a just trial, and offered nary accidental to beryllium heard.
This mirrors the ineligible logic of preventive detention, which bypasses cardinal principles specified arsenic audi alteram partem, the presumption of innocence and judicial scrutiny. Although subject fiction, the movie offers a striking metaphor for the ethical and ineligible perils that travel the logic of preventive incarceration.
In the film, alternate futures — oregon “minority reports” — uncover that the Precogs are not infallible. This echoes the inherent uncertainty successful predicting quality behaviour, which is the Achilles’ bottommost of preventive detention regimes. In India, courts person repeatedly acknowledged that the “subjective satisfaction” of the detaining authorization is susceptible to misuse, particularly successful cases that impact dissent, protestation oregon governmental opposition.
In this metaphorical ecosystem, the sponsoring authority, detaining authority, and adjacent the advisory committee relation arsenic India’s equivalent of the Precogs — issuing decisions based connected perceptions and probabilities alternatively than impervious and procedure. With anemic procedural safeguards and constricted judicial review, preventive detention successful India presents the precise dangers that Minority Report sought to pass america against.
Editorial | Safeguards and procedures: On India’s preventive detention laws
In airy of the apical court’s caller observations successful Dhanya M., determination is an urgent request to re-examine the law propriety of A.K. Gopalan and A.K. Roy, and to betterment the preventive detention regime. At the precise least, specified bonzer powers should beryllium confined strictly to combating sedate threats specified arsenic coercion and transnational cause cartels, and not utilized arsenic a regular administrative tool. Unless checked, India’s pre-crime model volition proceed to undermine the precise law values that it purports to protect.
Faisal C.K is Deputy Law Secretary to the Government of Kerala. The views expressed are personal
