Preventive Detention

October 14, 2026
Current Affairs

Preventive Detention

Source: The Hindu, Page 8

Why in News?

Delhi Police detained over 5,000 protesters attempting to reach Jantar Mantar. On October 11, the Supreme Court directed the Centre and Delhi Police to ensure the free movement of people, subject to law and order.
The Court emphasised that there should be no unlawful detention and that all detentions must follow established legal procedures.

Key Provisions and Safeguards

Preventive detention involves detaining a person without trial or conviction to prevent anticipated activities that may threaten public order, state security or other specified interests.
The National Security Act (NSA), 1980, permits preventive detention for activities prejudicial to India’s defence, foreign relations or security of the State.
Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) replaces Section 144 of the Code of Criminal Procedure, 1973, and empowers magistrates to issue prohibitory orders to prevent immediate harm or public disturbance.
Article 22 provides constitutional safeguards, including communication of detention grounds and review by an Advisory Board for detention exceeding three months, subject to constitutional exceptions and conditions.
Articles 14, 19 and 21 protect equality, fundamental freedoms, and life and personal liberty, forming important safeguards against arbitrary state action.

Constitutional Framework: Article 22

While Article 22(1) and (2) provide safeguards against arrest (right to be informed of grounds, right to a lawyer, and production before a magistrate within 24 hours), Article 22(3) specifically excludes those held under preventive detention laws from these protections.

Key Provisions under Article 22(4)–(7):

Duration: No person can be detained for more than three months unless an Advisory Board (comprising persons qualified to be High Court judges) finds sufficient cause for extended detention.
Grounds of Detention: The detaining authority must communicate the grounds of detention to the person "as soon as possible." However, they can withhold facts deemed against the "public interest" to disclose.
Right to Representation: The detainee must be given the earliest opportunity to make a representation against the order.

Major Preventive Detention Laws

Several statutes empower the executive to exercise this power:

National Security Act (NSA), 1980: Central/State governments can detain individuals to prevent acts prejudicial to national security or public order.
Unlawful Activities (Prevention) Act (UAPA), 1967: Used primarily for terrorism-related offences and activities threatening India's sovereignty.
COFEPOSA, 1974: Focuses on preventing smuggling and foreign exchange violations.
Public Safety Act (PSA), 1978: A state-level law specific to Jammu & Kashmir often used for "public order" and "security of the state."

Latest Judicial Stance (2024-2026)

The Supreme Court has recently tightened the scrutiny on preventive detention, labeling it a "draconian measure" that must be the exception, not the rule.

Confessions as Sole Basis (2026): In Mulla Afroz v. Union of India (Sept 2026), the SC ruled that a custodial confession made to a police officer cannot be the sole basis for preventive detention without independent supporting material.
Procedural Fairness: In Jaseela Shaji v. Union of India (2024), the court quashed a detention because the authorities failed to provide the detainee with all documents relied upon in a language they understood.
Not a Substitute for Criminal Law: The courts have repeatedly warned that preventive detention should not be used as a shortcut to bypass ordinary criminal prosecution or to "clip the wings" of an accused who has already secured bail in a criminal case.

Historical Background and Judicial Pronouncements

Preventive detention has colonial roots in laws such as the Rowlatt Act, 1919, and the Defence of India Act, 1939.
Post-independence laws include the Preventive Detention Act, 1950, the Maintenance of Internal Security Act (MISA), 1971, repealed in 1978, and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974.
In Maneka Gandhi v. Union of India (1978), the Supreme Court held that procedures restricting personal liberty must be just, fair and reasonable.
In Babulal Parate v. State of Maharashtra (1961) and Khudiram Das v. State of West Bengal (1975), the Court addressed the limits and safeguards associated with preventive powers.
In Mazdoor Kisan Shakti Sangathan v. Union of India (2018), the Court opposed a complete ban on protests and favoured reasonable regulation.
In Shaik Naznen v. State of Telangana (2022), the Court reiterated that preventive detention is an exceptional power and should not be used routinely.