Suspicion as Evidence: The Legal Puzzle of Preventive Detention

Write-up

The recent arrest of climate activist Sonam Wangchuk under preventive detention provisions has reignited a long-standing debate on India’s use of such extraordinary powers. According to the National Crime Records Bureau (NCRB) 2022, over 24,500 cases of preventive detention were recorded that year—revealing its normalization as an instrument of governance rather than an emergency measure.

The Supreme Court, in Ameena Begum v. State of Telangana (2023), reaffirmed that preventive detention is meant to be exceptional, not routine. Yet cases such as Shakeel Mohd. v. Union Territory of Jammu & Kashmir (2024), where an individual accused of bovine smuggling was detained under the National Security Act (NSA) to prevent potential communal unrest, show how the law continues to blur the line between national security and ordinary law enforcement.

While the court upheld the detention, it sparked widespread criticism for enabling the state to bypass due process under the guise of maintaining “public order.”

Understanding Preventive Detention

Under Article 22 of the Indian Constitution, detention takes two forms—punitive and preventive. Punitive detention follows conviction for a proven offence, whereas preventive detention allows the state to detain a person without trial on mere suspicion that they may act against public order, security, or essential services. India remains one of the few democracies where preventive detention laws are applied during peacetime.

Several national and state statutes govern this practice, including the Maintenance of Internal Security Act (1971), the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (1974), the National Security Act (1980), and the Unlawful Activities (Prevention) Act (1967). Among these, the NSA grants the Central and State governments the authority to detain individuals for up to 12 months without trial, denying them the right to legal representation and limiting judicial oversight.

The persistence of preventive detention owes more to India’s colonial inheritance than to democratic principle. These powers, rooted in authoritarian wartime regulations, remain embedded in modern governance structures—contradicting the constitutional vision of liberty and the rule of law.

Historical Evolution: From Colonial Tool to Constitutional Paradox

Preventive detention in India traces back to the Bengal Regulation III of 1818, which allowed the British government to detain individuals on suspicion of posing a threat to the state. The Defence of India Act (1939) later expanded these powers during World War II. Though India attained independence with the promise of liberty, the turbulent post-Partition years saw communal violence and secessionist fears push the Constituent Assembly to reluctantly retain preventive detention within the Constitution.

The debates were fierce. K.M. Munshi and Dr. B.R. Ambedkar acknowledged its dangers but defended it as a “necessary evil” for national unity. In contrast, H.V. Kamath and Somnath Lahiri condemned it as a “black spot” that violated civil liberties even before they could mature in a new democracy. Ultimately, the Assembly incorporated preventive detention into Article 22 but with limited procedural safeguards to prevent misuse—a compromise that continues to haunt Indian constitutionalism.

Constitutional and Legal Framework

Preventive detention laws derive their constitutional backing from Entries 9 and 3 of List I and List III in the Seventh Schedule, empowering both the Union and State governments to legislate on matters of security, defence, and public order.

Article 22(4)–(7) provides minimal safeguards:

Grounds of detention must be communicated to the detainee “as soon as possible.”
Detention cannot exceed three months without the approval of an Advisory Board comprising judges.
The detainee has the right to make a representation against detention.

However, unlike punitive detention, the individual is not entitled to legal counsel, nor must they be produced before a magistrate within 24 hours. These diluted guarantees stand in tension with Articles 19 and 21, which protect liberty and personal freedom. The courts have repeatedly attempted to bridge this gap, but the discretion vested in the executive remains vast.

In Jaseela Shaji v. Union of India (2024), the Supreme Court emphasized that procedural fairness is integral to preventive detention. It ruled that failure to supply detainees with all documents relied upon by the detaining authority violates Article 22(5). The Court underscored that the right to representation must be real and effective, not illusory—a reaffirmation of its commitment to procedural justice.

Conflict with Fundamental Rights

The conflict between preventive detention and fundamental rights sits at the core of the controversy. While Article 19 guarantees freedoms of speech, movement, and association, Article 21 guarantees the right to life and personal liberty except by “procedure established by law.” Preventive detention, though legally sanctioned, effectively suspends both fundamental rights simultaneously.

The Supreme Court’s trajectory on this issue has been ambivalent. In ADM Jabalpur v. Shivkant Shukla (1976), the majority held that during an Emergency, even the right to life could be suspended—a decision later denounced as a betrayal of constitutional morality. Justice H.R. Khanna’s dissent, asserting that “life and liberty are not gifts of the state,” became the moral benchmark. Decades later, Justice D.Y. Chandrachud, overruling his father’s position, reaffirmed in Puttaswamy (2017) that the right to life and dignity is inviolable, even in times of crisis. This evolution shows that the judiciary recognizes the need to curtail executive arbitrariness—but preventive detention laws continue to test the limits of that recognition.

Contemporary Use and Misuse

The post-2019 period following the abrogation of Article 370 witnessed large-scale detentions under the NSA in Jammu and Kashmir, including politicians, journalists, and minors—often without formal charges. Many were held for months, with delayed habeas corpus hearings. The International Commission of Jurists and UN human rights bodies criticized these detentions for violating due process and international covenants on civil and political rights.

A troubling pattern also appears at the state level: preventive detention invoked for routine offences such as cow smuggling, black marketing, or social media posts. In one Jammu and Kashmir case, a man was detained for nearly a year before the High Court ordered his release upon discovering mistaken identity—exposing systemic negligence. Such incidents reveal how vague terms like “public order” and “security of the state” become tools of administrative convenience, allowing state authorities to suppress dissent or preempt criticism rather than prevent actual threats.

Moreover, the opacity surrounding detentions—where grounds are often classified and advisory board proceedings secret—weakens accountability. This erodes public trust and shifts the burden of proof from the state to the citizen, reversing the presumption of innocence.

Global and Comparative Perspective

Preventive detention exists elsewhere, but the scope and safeguards differ sharply.
In the United Kingdom, it operates strictly under anti-terrorism laws such as the Terrorism Prevention and Investigation Measures Act (2011). Each detention order requires judicial authorization, periodic parliamentary review, and cannot exceed 14 days without court sanction. Detainees retain access to legal counsel and regular hearings, making it an exceptional tool rather than a routine administrative power.

In the United States, the Constitution and Bill of Rights virtually prohibit preventive detention in peacetime. Even wartime detentions face judicial scrutiny—as in Hamdi v. Rumsfeld (2004), where the U.S. Supreme Court ruled that citizens detained as enemy combatants must be given an opportunity to challenge the basis of their detention. The American legal culture treats liberty as the default condition and detention as an extreme exception.

South Africa, having experienced apartheid-era abuses, abolished preventive detention altogether, branding it incompatible with democratic governance.

In contrast, India applies preventive detention in peacetime and extends it to vague categories like “public order” or “essential services.” This exceptional power thus becomes normalized, eroding the distinction between democracy and executive control.

Core Issues and Critiques

1. Vagueness and Overbreadth: The terms “public order” and “security of the state” lack precise definition, allowing subjective interpretation.

2. Weak Judicial Oversight: Advisory Boards are not independent courts; their proceedings are secretive and rarely overturn detentions.

3. Delayed Habeas Corpus: Despite judicial directions, petitions often linger for months, rendering relief meaningless.

4. Lack of Accountability: No compensation or state liability exists for wrongful detention.

5. Chilling Effect on Dissent: Preventive detention is frequently used against activists, journalists, and political opponents, shrinking democratic space.

Reforms and the Way Forward

Reforms must aim to balance national security with individual liberty, ensuring that detention remains a last resort. Key measures include:

Uniform Preventive Detention Code: Consolidate existing laws under one code with standardized procedures and definitions to remove ambiguity.

Clear Definitions: Precisely define terms like “public order,” “security,” and “essential services” to narrow executive discretion.

Mandatory Judicial Review: Every detention beyond 30 days should require confirmation by a judicial authority, not just an advisory board.

Right to Counsel and Access to Records: Detainees must be allowed legal representation and provided with all materials relied upon by detaining authorities.

Independent Oversight Boards: Establish statutory oversight bodies to audit detention orders, ensuring transparency and compliance.

Time-bound Habeas Corpus Disposal: Following Salem Advocate Bar Association v. Union of India, habeas corpus petitions should be resolved within 15 days.

Compensation for Wrongful Detention: The state must bear responsibility for deprivation of liberty without just cause.

Alternative Measures: Use house arrest or electronic monitoring for non-violent cases to protect liberty while maintaining order.

Public and Legal Awareness: Educating citizens about their rights under preventive detention can strengthen democratic accountability.

Conclusion

Preventive detention, while constitutionally permissible, embodies a dangerous paradox—it seeks to preserve democracy by momentarily suspending its core value: liberty. What was intended as a temporary emergency provision has evolved into a permanent feature of governance, frequently used for administrative convenience rather than genuine security threats.

India’s democratic legitimacy depends on how responsibly it exercises this power. The goal is not to abolish preventive detention but to contain it within strict constitutional boundaries, ensuring its use only in genuine emergencies with strong judicial oversight. Comparative experiences from mature democracies show that transparency, judicial control, and temporal limits are essential safeguards.

Ultimately, liberty must remain the default and detention the exception. Only when India enforces that principle—through law, oversight, and public vigilance—can preventive detention align with the constitutional promise of justice, liberty, and human dignity.