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  • Ayushi Shrivastava


Author: Ayushi Shrivastava

Hitkarini Law College


Preventive detention laws violate democratic constitutions and do not exist in any democratic country in the world.[1] HV Kamath said during a conference where preventive detention laws were discussed that the “eternal challenge of governments [around the world]” is to balance national security with individual freedom. When individual freedom is increasingly restricted in the name of society’s interests, the result will be unconditional submission to authority and a loss of freedom that amounts to tyranny.[2] This study examines, among other things, factors that influence the effectiveness and constitutional guarantees of preventive detention orders.

Keywords: Preventive Detention Law, Arbitrary Arrest and Detention, Effectiveness of Preventive Detention, Constitutional Guarantees, Article 22 of the Constitution.


Personal freedom is one of the most important and valuable rights guaranteed to every citizen of India. From an analysis of the colonial period, it is clear that there was a constant struggle not only for British rule, but to secure freedom, equality, and justice for the last remaining human beings in society. Therefore, when the Indian Constitution was drafted, the framers included a long list of fundamental rights in keeping with the spirit of a democratic nation. “The purpose of the Declaration of Fundamental Rights is to ensure that certain fundamental rights, such as life, liberty and freedom of expression, are considered inalienable under all conditions and that the majority of the legislative body changes. States should not be free to interfere with these fundamental rights.” [3]. Every effort has been made to protect the democratic character of our country. However, there are also certain laws that pose a threat to democracy, such as preventive detention laws.

Historical Legacy of Preventive Detention Laws in India:

In India, preventive detention laws have a colonial legacy. The British used these laws, such as the Bengal Regulation Act of 1818 and the Rowlatt Act of 1919, to suppress Indian pursuits of freedom. Many of the freedom fighters were detained and sent to prison for several days. In the UK, during the First World War he was regulated under the Defense of the Kingdom Act 1914, and similarly during the Second World War for preventive detention he was regulated under the Emergency Power (Defence) Act 1939 was created. The validity of these regulations has been confirmed by the House of Lords. The court ruled that individual freedom could be sacrificed for a nation's success in war.[8] These regulations were no longer in effect at the end of the war. Incorporation of Preventive

Detention Laws in the Constitution:

Even after gaining independence from the colonial powers, we did not abide by some of the laws of the colonial regime, but rather reconsidered them and expressed them differently. The issue of including a preventive detention law has been debated and debated several times among members of the Constituent Assembly. Some members of the Diet expressed the view that allowing the exercise of the power of arrest even in peacetime is a serious violation of democratic values, but at the same time, some members of the Diet who agreed with this view also expressed the view that allowing the exercise of the power of arrest even in peacetime is a serious violation of democratic values and justified it on the grounds of ensuring democracy. Protect from destructive elements. Ultimately, preventive detention was achieved. The Constitution of India, as per Entry 9 List 1 of the Seventh Schedule, empowers the Central Parliament to make laws for "preventive detention for reasons relating to the defence, foreign affairs or security of India".

Similarly, Entry 3 of List 3 of the same Schedule confers concurrent powers on the Central and State Legislatures to enact the following laws:

  • “Preventive detention for reasons of national security, maintaining public order, or maintaining essential goods and services for the community” is essential.

  • Persons subject to such detention.”

  • Constitutional Safeguards

Although the framers of the Constitution recognized the need for preventive detention laws, they also created safeguards against unreasonable detention by placing fetters on Congress' legislative authority. Sections 4 to 7 of Article 22 guarantee the following protection to persons arrested under these laws: -

  • 3 months without obtaining the opinion of the Advisory Board Laws providing for detention in excess of It also includes situations where a person may be detained for more than three months. The government was obligated to revoke a detention order if the advisory committee determined that the detention was unwarranted.

  • Article 5 requires the detention authority to inform the detainee of the reasons for his detention as soon as possible. Article 22(5) can only be fully complied with if the information provided is in a language that the detainee understands. Evidence should not be irrelevant or non-existent. These provisions act as a protective shield of detenu, preventing authorities from exercising arbitrary power. You can't put someone in jail of their own free will. These safeguards provide the possibility of effective representation for protection.

Evolving Legality of Preventive Detention Order:

In fact, the Supreme Court was expected to protect civil rights and minority rights, and to play the role of "guardian and social revolutionary." It is an impartial institution that acts as a guardian of fundamental rights.

Courts have always taken action in cases of abuse of preventive detention laws that violate the fundamental rights of citizens. But another fact is that there is a huge backlog of cases, which is leading to delays in trials. Preventive detention order cases take several months to be heard.

Indian Express reports that the Allahabad High Court is hearing 94 out of 120 habeas corpus cases against NSA detention orders.[9] In 1981, the Supreme Court expressed grave concern that, despite a series of repeated warnings by the court, the detention authorities were not complying with the constitutional guarantee contained in Article 22(5) of the Constitution of decision. [10] It is clear from the wording of the Preventive Detention Act that the power of detention must be exercised on the basis of the subjective satisfaction of the detaining authority, and that courts will do not interfere with decisions. [11] However, the subjective satisfaction of the detention authority is not completely immune to judicial review. Recently, the Supreme Court in the case of Amina Begum v. State of Telangana and Ors held that the Constitution Bench, which was asked to consider the legality of

preventive detention orders, has the right to consider the legality of preventive detention orders:

  1. Subjective Satisfaction with detention is based on authority,

  2. Authorities must take into account all relevant circumstances.

  3. The use of power for unlawful purposes is considered ultra vires;

  4. The detention authority acted on its own discretion or on behalf of another entity.

  5. Authorities have relied on laws they have enacted to prevent them from exercising their will,

  6. The satisfaction of the above-mentioned authorities has depended on material which is clearly of value and which has dealt with the matter in accordance with the enacted legislative orders.

  7. Investigated the direct relationship between a person’s behavior and the urgent need to restrain or satisfy that person.

  8. Satisfaction must be such that a person of ordinary common sense would think it must relate to the facts relevant to the investigation,

  9. It provides that the reasons for the order shall be clear, precise, relevant, relevant and communicated to its appropriate representatives.

  10. Deadlines specified by law are met.


Preventive detention law and its various aspects (interference with personal freedom, legal framework used as a tool to demonstrate executive dictatorship, role of courts in determining the validity of preventive detention orders, constitutional protections) Research on the presence or absence of The fact that non-detention is actually effective shows that there is an urgent need for reform and change in these laws to enable them to be used for the purposes intended by the framers of the Constitution.

In my opinion, there are very few suggestions in this regard:

  • Those who have been unlawfully detained should receive adequate compensation to compensate for the losses they have suffered during this period.

  • Considering the effectiveness of constitutional guarantees, the opinion of the Advisory Committee on detention for more than three months should be taken into account.

  • Appropriate measures should be taken to prevent delays in considering detainee representation and thereby prevent preventive detention from turning into criminal detention.

  • Legislative provisions regarding the nature and definition of criminal offenses and the powers of detention authorities must be clearly defined.

  • Strict rules should apply in cases of vindictive, reckless and arbitrary abuse of preventive detention powers.


It is ironic that the framers of the Constitution, who were once victims of Britain's oppressive preventive detention laws, still choose to give Parliament the power to make such laws under the Constitution. While the enactment of preventive detention laws is justified to some extent, the failure to provide safeguards and the arbitrary use of power cannot be justified. When these laws are enacted with the true intention of protecting national security and peace, they can be effective weapons, but when used in an arbitrary and unreasonable manner, That power can become an instrument of executive tyranny and can be harmful to the country's democracy values.


[1] DR. J.N. PANDEY, CONSTITUTIONAL LAW OF INDIA 388 (59th ed. 2022).


[3] A.K. Gopalan v. State of Madras, AIR 1950 SC 27.

(last visited Sep.14, 2023).




[8] Liversidge v. Anderson, (1942) AC 206.

[9] THE INDIAN EXPRESS, (last visited Sep.14, 2023).

[10] Kamla v. State of Maharashtra, AIR 1981 SC 814.

[11] Khudiram Das v. State of West Bengal, AIR 1975 SC 550.

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