Preventive Detention: Antithesis to Due Process

The constitution of India has enabled the parliament to exercise preventive detention laws in India, citing the rationale to be “the security of a State, maintenance of public order, or maintenance of supplies and services essential to the community.” This particular detention has been inserted as an exception to what three fundamental rights procedural guarantees. The detenu who has been conveniently termed as a threat to public order or national security is detained without any kind of criminal trial, also without having any kind of charges formulated against the same. Article 22 allows the authorities to reprimand the suspect for a period no more than 3 months after which a special advisory board specially constituted for the same will decide for the application of the detention in the future. The criterion for becoming a member of the advisory board would be that the individual would have been or are or are qualified to be appointed as a judge of the high court. Clause (3) of Article 22 clearly mentions that protective clauses mentioned in earlier clauses of (1) and (2) will not extend to any person arrested or detained under preventive detention laws.[1]

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There are obviously powers granted to the courts to deal in matters of these laws, firstly the court has the power to decide if the law in question is ultra vires article 22 of the constitution and examine the competency of the legislature thereby ratifying the validity of the law itself. Secondly, if a preventive law is ever challenged, the court has the power to understand and examine the nature of the legalisation and determine whether the subject of the law really was concerned with preventive detention. Thirdly, the court has the right to determine whether the nexus between the order and grounds and infer if its mala fide or not. Lastly, the court may check and enable him to have effective representation. However neither is the court authorised to verify the truth behind events which have been simply termed as facts and have been presented to them, nor are they granted the power to enquire on the merits of the ground on which the authorities have made the detention. In the case of Gopalan v State of Madras[2].

The supreme court had declared the preventive detention as a “sinister-looking feature” in the Indian constitution. In State of Punjab v Jagdev Singh Talwandi[3], the supreme court once again made public its stance on preventive detention by stating “Preventive detention is a necessary evil but essentially it’s evil. Therefore, deprivation of personal liberty, if at all, has to be on strict terms of the constitution. Nothing less. We will utter the oft given warning once more in the hope that the voice of reason is heard.” The detenu is made aware on the grounds that he has been detained but the authority is not compelled by our constitution to let the detenu be made aware of the facts which may be considered as an act against the public interest. The limitations which have been laid on the government regarding the laws of preventive detention have to be continuously monitored by the courts to make sure these limitations are safeguarded by the courts which usually they have failed to achieve due to inefficient limitations and abuse of power by the legislation itself. As mentioned above, the grounds are conclusions which are made by the authorities regarding the activities the suspect was participating in prior to his detention, whereas facts are the evidence or reasons the authorities seem to possess for arriving at this conclusion[4].


In R.C Cooper v Union of India[5], the fundamental rights formed a group of the most basic essential rights which had to be operated in synergy. If only this important guiding principle was followed, all the detenu would be tested to check whether article 19(2) is being violated and if the authorities are fulfilling the proximate requirements, more importantly, the simple fulfilments of the procedure laid down in article 22 would not be enough to detain an individual. Unfortunately, even after delivering such a landmark judgement the supreme court would go ahead and treat article 22 in complete isolation. This simply has led to terrible civil rights violations which could have been easily corrected only if this principle was followed[6]. The most essential reason for removal of preventive detention is the total domination established by the executive which has been established due to the isolation of article 22 by the supreme court and the Janus faced approach of the court to officially pass judgements of them nullifying the silos theory while subtly applying it. In several preventive detention law-related cases be it State of Punjab v Sukhpal Singh[7], where there was an application of the terrorist and disruptive activities (prevention) Act, or the case of Dropti Devi v Union of India[8], where the constitutional validity of The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, the judiciary has viewed article 22 in splendid isolation while backing the misuse of these detention laws by the executive and terming it as a ‘precautionary power which the executive only exercises with reasonable anticipation’ thereby leading to a state of executive supremacy.  

Although there have been cases where the Supreme Court has tried to extend their power when it comes to matters related to preventive detention, recent developments have hampered that development too. In the case of Bhawarlal Ganeshmalji v. State of Tamil Nadu[9] where the court established a ‘live and proximate link’ that has to be present between the grounds on which the order has been issued and the said purpose of the detention where if there is an unexplained long delay between order and arrest, that would constitute as one of the instances where this link would be snapped[10]. Another major step towards judicial overview on preventive detention order was in the case of  Prabhu Dayal Deorah v. D.M. Kamrup[11] where the court had vitiated the preventive detention orders due to them being vague among other reasons, also saying how the detaining authorities had not applied their mind at all to one of the grounds of the above mentioned detaining order[12]. The court also laid down that in case of violation of a fundamental right of having the requisite information and the right of representation to challenge the order which is guaranteed under Article 22 (5), the aggrieved has the right to approach the Supreme Court under Article 32 of the constitution. These had been relatively big advancements in bringing preventive detention orders under the jurisdiction of the judiciary. However, there have been considerable obstacles that it has faced by the judiciary’s power to adjudicate on these matters. Recently in the 2019 Supreme Court judgement in the case of Union of India v. Dimple Happy Dhakad[13] where the petitioner was arrested for alleged smuggling of gold and detention orders were given after he had filed for bail the second time, being rejected the first time and been in jail for 2 months. Here he argued that how there was the inclusion of evidence in grounds for detainment that was dated post his arrest and the delay clearly showed that there was no real link or reason for preventive detention other than to keep him in custody for a longer period without any judicial interference.

The court wrongly rejected the plea here stating how that there was no violation of the fundamental right of the aggrieved as the details of detention orders were given to him as laid out in article 22(5) within 5 days[14]. The court dismissed the petition holding that they cannot set aside the detention order based on executive guidelines or “subjective satisfaction” as they fall beyond the scope of judicial review[15]. This, when contrasted with the 2011 judgment in the case of Rekha v. State of Tamil Nadu laid out how procedural requirements are the only safeguards that are present and its non-compliance, can be the only reason to vitiate a detention order[16].  The case also mentioned how a great chance of return of the detenu to the prohibited activity was another requirement for such preventive detention orders. However, this was clearly overlooked by the court in the Dimple Dhakad case. It highlights how the expansion of rights and liberties guaranteed have unequally denied rights to those under preventive detention as against those arrested under punitive detention. 

In the constituent assembly Article 22 was seen by some as quid pro quo for non-insertion of the word due process in article 21[17]. However sub-clause 3 of article 22 which grants extraordinary and arbitrary power to the legislature in form of preventive detention, which may seem like a middle ground between state authority and personal liberty, undoes the individual liberty guaranteed by article 21. This grant of arbitrary power almost immune to judicial review was based on the notion of how we were not under a white ruler anymore but our friendly countrymen which would not misuse this authority and use this for our society’s benefit. Although there has been great development with judicial engagement towards the right of life and liberty under Article 21 of the constitution and detenues have remained unaffected to them.

Preventive Detention: Antithesis to Due Process

Justice Sen in the case of Nand Lal Bajaj vs State of Punjab[18] said (part of obiter dicta) “It is expected that Parliament while making a law regulate the procedure before an Advisory Board under Article 22 (7) (c) of the Constitution should provide the right to consult and be defended by a legal practitioner of his choice. It is incomprehensible that a person committing a crime should have under Article 22(1) of the Constitution the right to consult and be defended by a legal practitioner of his choice, but a person under preventive detention more often than not for his political beliefs should be deprived of this valuable right. It cannot be denied that preventive detention is an anachronism in a democratic society like ours. The detention of individuals without trial for any length of time, however short, is wholly inconsistent with the basic ideals of a parliamentary system of government. In the nature of things, under the law, as it exists, a person under preventive detention is not entitled to legal assistance. The matter is essentially political and as such, it is the concern of the statesmen and, therefore, within the domain of the Legislature, and not Judiciary[19].” 

This arbitrary use of preventive detention laws has been the norm to silence political dissent in India. However, the exorbitant rise especially posts the CAA protests have given rise to a faulty understanding of the constitution and fundamental rights where it is seen as a document to curtail rights rather than safeguarding liberty. It reverses the standard of criminal proceedings for the detained from “innocent until proven guilty” and puts the onus on the detenu to prove their innocence instead of the prosecution to prove guilt.


  1.  Jinks, Derek. “The Anatomy of an Institutionalised Emergency: Preventive Detention and personal liberty in India.” Michigan Journal of International Law, vol. 22, no. 2, 2001, 323-326.
  2.  AK Gopalan vs The State of Madras (AIR 1950 SC 27)
  3.  State of Punjab v Jagdev Singh Talwandi (AIR 1984 SC 444)
  4.  Jhabvala, Noshirvan. The Constitution of India. C. Jamnadas and co. 2016.
  5.  R.C Cooper v Union Of India 
  6.  Bhatia, Gautam. The Transformative document. HarperCollins, 2019.
  7. State of Punjab v Sukhpal Singh (1990 AIR 231)
  8.  Dropti Devi v Union of India (7 SCC 499)
  9.   Bhawarlal Ganeshmalji v. State of Tamil Nadu, (1979) 1 SCC 465
  10.  Id
  11.   Prabhu Dayal Deorah v. D.M., Kamrup, (1974) 1 SCC 103
  12. Id
  13.  Union of India v. Dimple Happy Dhakad (Crl. Appeal No. 1064 of 2019)
  14.  Id
  15.  Id
  16.  Rekha v. State of Tamil Nadu, (2011) 5 SCC 244]
  17.  Constituent Assembly Debate, 15th September 1950, 9.141.34
  18.  Nand Lal Bajaj v State of Punjab 1981 AIR 2041
  19.  Id

Shivam Shorewala and Amartya Singh| Jindal Global Law School

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