Reference Article: The Hindu

UPSC CSE Relevance:
– GS Paper II: Indian Constitution — Fundamental Rights, Preventive Detention, Judicial Review, and Constitutional Safeguards
– GS Paper IV: Ethics and Governance — Rule of Law and State Accountability

Judicial Interventions and Constitutional Position

• In Dhanya M. (2025), the Supreme Court underscored that preventive detention is an extraordinary power to be used sparingly and with strict constitutional safeguards.
• The Court reiterated the distinction between “law and order” and “public order”, clarifying that detention cannot replace criminal prosecution or bail procedures.
• Earlier cases such as:
  • S.K. Nazneen vs State of Telangana (2023) and
  • Banka Sneha Sheela vs State of Telangana (2021)
    also struck down preventive detention orders based on ordinary law-and-order issues.
• The Court reaffirmed the principle from Rekha vs State of Tamil Nadu that preventive detention is an exception to Article 21 and must be treated as such.

Despite these rulings, the broad scope of laws like the Kerala Anti-Social Activities (Prevention) Act (KAAPA) continues to blur the line between maintaining order and suppressing dissent.

Historical and Constitutional Background

• Colonial origins: Preventive detention in India traces back to Bengal Regulation III of 1818, used by the British for political control.
• Government of India Act, 1935: Institutionalised preventive detention for maintaining public order — a colonial legacy retained post-Independence.
• Constituent Assembly debates: Despite fierce opposition, preventive detention was included due to post-Partition unrest.
  • Article 22 was described as “Janus-faced” — embedding due process in form but excluding it in effect.
• A.K. Gopalan vs State of Madras (1950):
  • The Supreme Court upheld the Preventive Detention Act, 1950.
  • It isolated Article 22 from Articles 19 and 21, creating a constitutional “Devil’s Island” — a zone where fundamental rights could be suspended.

Judicial Evolution: From Gopalan to Maneka Gandhi

• Maneka Gandhi vs Union of India (1978) redefined “procedure established by law” to mean fair, just, and reasonable due process, integrating Articles 14, 19, and 21 — the “Golden Triangle” of fundamental rights.
• However, A.K. Roy vs Union of India (1982) rolled back this progress, holding that preventive detention laws could not be challenged on grounds of violating Articles 14, 19, or 21.
• This judicial position effectively created a “Bermuda Triangle” within the Constitution, where liberty, equality, and due process disappear once preventive detention is invoked.

Concerns and Critiques

• Granville Austin warned that preventive detention has a “seductive charm for the executive,” encouraging overuse and weakening investigative institutions.
• Such laws often substitute efficiency with coercion, stifling dissent rather than addressing security threats.
• Preventive detention violates key principles of criminal jurisprudence:
  • Presumption of innocence
  • Right to fair trial and legal representation
  • Judicial scrutiny and proportionality

The “Pre-Crime” Analogy

• Drawing from Steven Spielberg’s Minority Report (2002), preventive detention mirrors a “pre-crime” regime — punishing individuals for offences they might commit.
• The “subjective satisfaction” standard of detaining authorities allows arbitrary and politically motivated detentions.
• Institutions such as sponsoring authorities, detaining bodies, and advisory boards function as India’s “Precogs” — acting on perception rather than proof.

Way Forward

• Constitutional Re-examination: The reasoning in A.K. Gopalan and A.K. Roy requires urgent review in light of the expanded interpretation of Article 21 post-Maneka Gandhi.
• Restrict Scope: Preventive detention must be limited strictly to terrorism, espionage, and transnational organised crime.
• Judicial Oversight: Mandatory, periodic, and independent judicial review of detention orders.
• Procedural Safeguards:
  • Define “public order” more narrowly.
  • Strengthen the advisory board system to ensure genuine scrutiny.
• Legislative Reform: Harmonise preventive detention statutes with principles of proportionality and necessity.

Conclusion

Preventive detention represents a constitutional paradox — a colonial relic coexisting with democratic ideals. As India aspires to be a mature constitutional republic, its continued overuse undermines the spirit of liberty enshrined in the Preamble.
Reclaiming the balance between security and freedom requires reinterpreting Article 22 through the lens of Articles 14, 19, and 21, ensuring that no individual’s liberty vanishes into the constitutional Bermuda Triangle.

Sample UPSC Mains Question (GS Paper II):

“Preventive detention laws in India reflect a colonial legacy that undermines constitutional guarantees of liberty and due process. Critically examine in light of recent judicial interventions.”