This paper explores the contentious practice of preventive detention within the framework of the Indian Constitution, particularly under Article 22, which provides procedural safeguards for individuals detained without trial. Preventive detention, intended to safeguard public order and national security, raises significant concerns about its compatibility with fundamental rights, such as personal liberty guaranteed under Articles 19 and 21.

The study examines the historical evolution of preventive detention laws in India, judicial review mechanisms, and key precedents, including A.K. Gopalan v. State of Madras and Rekha v. State of Tamil Nadu, which highlight the judiciary's struggle to balance individual rights with state interests. It critiques the inherent flaws in the application of these laws, such as their mechanical implementation, lack of periodic review, and the absence of independent oversight, which often leads to misuse and unjustified detentions.

The findings underscore that existing criminal laws are sufficient to address threats, rendering preventive detention statutes redundant and potentially harmful. The paper advocates for reforms, including stricter safeguards, judicial oversight, periodic reviews, and constitutional amendments to protect detainees' rights.

In conclusion, while preventive detention aims to prevent societal harm, its overreach risks undermining democratic values. A careful balance between security and liberty is essential to uphold the rule of law and safeguard constitutional freedoms in India.

Introduction
According to criminal law jurisprudence, a person's personal freedom can only be restricted by arrest and imprisonment if both mens rea and actus reus-two necessary components of crime-are met. Although it is an exception to this rule, the practice of preventive detention-which permits someone to be lawfully detained based only on suspicion that they have a predisposition to engage in criminal activity-has been accepted into the constitutional framework under Article 22[1].

Security laws, which address exceptional offenses intended to jeopardize national security and harmony, have emerged as the cornerstone for enforcing detention prohibitions against individuals. Since the colonial era, the colonial administration has consistently used preventive detention to cope with exceptional criminal behavior.

Even though colonialism is no longer a threat to India, the governments of independent India have nevertheless used preventive detention to suppress free expression and opposition, usually through security legislations. In a democracy where fundamental rights are protected by constitutional guarantees and woven into the very fabric of the constitution, this is inherently problematic. Generally, the judiciary of a state is more likely to prioritize national security over individual liberty, most often under the garb of separation of powers and limiting judicial overreach.

Definition And Purpose Of Preventive Detention

Preventive detention[2], the practice of incarcerating accused individuals before trial on the assumption that their release would not be in the best interest of society-specifically, that they would be likely to commit additional crimes if they were released. Preventive detention is also used when the release of the accused is felt to be detrimental to the state's ability to carry out its investigation. In some countries the practice has been attacked as a denial of certain fundamental rights of the accused.

In 1984 the U.S. Congress adopted a preventive detention act known as Bail Reform Act,1984 allowing federal courts to detain arrestees pending trial if the government could show that no release conditions could protect the safety of persons and the community. The Act was challenged before the U.S. Supreme Court in United States v. Salerno[3], decided in 1987. The court held that the preventive detention bill violated neither the due process clause of the Fifth Amendment nor the excessive bail language of the Eighth Amendment. After Salerno, preventive detention laws were adopted in a number of U.S. states.

With the Salerno decision, the notion of preventive detention became available for the first time at a theoretical level. Courts may often effectively detain arrestees by setting bail sums low enough not to be constitutionally "excessive" but high enough to make it impossible for the arrestee to gain release on bail. In other cases, bail is granted but with highly restrictive conditions. For example, in 2011 a prominent French politician and international statesman was charged in New York state with sexual assault. He was released on bail in the amount of $1 million but with the condition that he confine himself in a New York apartment under the surveillance of private security guards.

Evolution Of Preventive Detention Laws In India

The Bengal State Prisoners Regulation, 1818 was the first law in India to permit personal restraints on individuals in the "interest of public and security of the State," even when judicial proceedings were deemed unaffordable due to insufficient evidence. Similar regulations followed in other provinces, including the Madras Regulation XI, 1819, and the Bombay Regulation XXV, 1827.

During the First World War, new security legislations were introduced, modeled on the Defence of the Realm Act, 1914 in Britain. These laws allowed the Governor-General in Council to restrict individuals from leaving designated areas if they were suspected of jeopardizing public safety. Although these laws were repealed after the war, they set a precedent for more restrictive measures.

This culminated in the infamous Rowlatt Act, which allowed detention based on mere suspicion and retroactively extended the detention of individuals under the Defence of India Act without judicial intervention. The Act, heavily criticized for its oppressive nature, prohibited judicial review entirely. Although repealed following the recommendations of the Repressive Laws Committee, its legacy lingered. The Emergency Powers Ordinance, 1932, enacted ten years after the Jallianwala Bagh Massacre, revived the harsh measures of the Bengal Regulations of 1818, and over 3,500 individuals were placed in preventive detention during the 1930s, primarily to suppress nationalist uprisings.

During the Second World War, the Defence of India Act, 1939, modeled on Britain's Emergency Powers (Defence) Act, 1939, allowed imprisonment based on reasonable suspicion of hostile intent or prejudicial actions. However, Rule 26 of the implementing regulations, which proposed special tribunals, was struck down by the Federal Court of India in Emperor v. Shibnath Banerjee[4]. The court ruled that laws allowing detention based solely on government satisfaction were invalid and reiterated in Emperor v. Keshav Gokhale[5] that all custody required evidence-based reasoning by the detaining authority.

Although the Defence of India Act was repealed after the war, the unrest surrounding India's independence and partition prompted the enactment of several Provincial Maintenance of Public Order Acts. These laws granted governments powers of preventive detention, foreshadowing the broader framework that would be enshrined in India's legal system post-independence.

This historical trajectory reveals how preventive detention laws, initially introduced as temporary wartime measures, evolved into a recurring tool for maintaining public order, often at the cost of individual liberties.

Preventive Detention Laws in India

Initially, the first preventive detention legislation[6] in Republic of India, where the constitution went into effect immediately, was approved by Parliament following lengthy debates and intense deliberations among legal luminaries and people's representatives. The first enactment was the Preventive Detention Act,1950. It had provided the executive authorities the ability to detain anyone under the three categories of national security, economic interest, and public order.

The Preventive Detention Act,1950 was initially enacted for the period of only one year, but periodically it was extended up to the year of 1969. Its validity was tested on the anvil of Constitution of India for the first time in the landmark judgement of A.K Gopalan case and the same was upheld by the Constitutional Bench of the Supreme Court. This legislation violates the rights granted by Articles 19[7] and 21[8], as well as the permissive legislation on Preventive Detention under Articles 22(4) and (7), particularly Article 22(5)[9].

Armed Forces (Special Powers) Act of 1958: On May 22, 1958, the President of India issued the Armed Forces (Assam and Manipur) Special Powers Ordinance, granting exceptional powers to the armed forces and providing a legal framework for their operations in Assam and Manipur. The 1942 Ordinance was later renamed the Armed Forces (Special Powers) Act of 1958.

The Defence of India Act,1962 and rules were adopted during the first national emergency, triggered by the Indo-China war. The president proclaimed emergency under Article 352 of the Constitution, citing the threat of external aggression to India's security. Special procedures must be in place to protect public safety, India's defense, and civil defense, as well as for the trial of certain offenses.

The Maintenance of Internal Security Act (MISA), 1971 passed by the Indian Parliament during Prime Minister Indira Gandhi's reign, gave police enforcement broad powers, including indefinite preventive detention, search and seizure without a warrant, and eavesdropping. Its primary purpose was to counter internal dissent, sabotage, terrorism, and risks to national security.

In ADM Jabalpur v. Shivkant Shukla[10],1976 the Court upheld the constitutional validity of Section 16A(9) of the Maintenance of Internal Security Act (MISA), which curtailed procedural safeguards for detainees and ruled that individuals had no locus standi to file writ petitions, including for habeas corpus, under Article 226 to challenge the legality of detention orders during the Emergency. Justice Khanna dissented the judgment by stating that invoking Article 359(1) did not eliminate the right to approach courts for enforcing fundamental rights and emphasized that while Article 21 lost its procedural enforcement during an Emergency, its substantive essence remained fundamental, limiting the state's power to deprive individuals of life and liberty without authority of law.

Following MISA, the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) which was passed to reduce smuggling and conserve foreign exchange, allows for preventive detention. It empowers authorities to hold those suspected of involvement in smuggling activities even if direct evidence is not available.

The Act was meant to prohibit judicial review, but High Courts released 70-80% of detainees on procedural grounds. Because of the nature of smuggling activities, obtaining direct proof against financiers is difficult, resulting in the frequent use of preventive detention.

In response to escalating terrorism, particularly in Punjab, the Terrorist and Disruptive Activities (Prevention) Act (TADA),1985 was passed to replace MISA. TADA was enacted to confront terrorist crimes such as murder, arson, and looting, but it did not establish a precise legal definition of "terrorism." Rather, the judiciary defined terrorism as the systematic use of coercive intimidation.

The Act was heavily condemned for its harsh provisions and abuse, as proven by the incarceration of nearly 75,000 persons, with over 99% of cases eventually being dismissed due to a lack of evidence, resulting in a conviction rate of less than 1%[11]. Due to numerous human rights breaches, TADA was repealed in 1995. However, following the 9/11 terrorist attacks, India adopted tough anti-terror legislation under the Prevention of Terrorist Activities Act, 2002 (POTA) to strike against terror in India

The Ministry of Home Affairs created the Prevention of Terrorist activity Act (POTA),2002 in response to increased terrorist threats, cross-border terrorism, and insurgency activities throughout India[12]. The Act authorized strong counterterrorism measures, such as detaining detainees for up to 180 days without bringing charges in court. It also allowed law enforcement to conceal witnesses' identities and accept confessions provided to police as admissible evidence, a change from standard Indian law, which allowed such confessions to be challenged in court. POTA was criticized for its potential for abuse, particularly because it allows for extended detention without charges and disregards the right to self-incrimination. According to official accounts, approximately 800 people were held, POTA was used to book about 4,000 persons before being repealed in 2004 owing to abuse concerns[13].

Following the repeal of POTA, the government revised the Unlawful Activities (Prevention) Act (UAPA),1967 to include several POTA provisions, therefore bolstering India's legal framework against terrorism without passing a new anti-terror legislation. The revisions increased the length of imprisonment without filing charges to 90 days (from 30 days) and made evidence collected through communication intercepts acceptable in court. In reaction to the 2008 Mumbai attacks, additional modifications to the UAPA were made, expanding police powers and allowing for imprisonment without bail for up to 180 days for Indian nationals and indefinite detention for foreigners. Furthermore, these modifications reversed the burden of proof in certain circumstances, shifting it to the accused, making the law more strict in dealing with terrorism-related acts.

The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act) aims to prevent illicit trafficking in narcotic drugs and psychotropic substances, recognizing the serious threats it poses to public health, welfare, and the national economy. Given the clandestine and organized nature of such activities, particularly in vulnerable areas, the Act empowers authorities to detain individuals involved in such trafficking to ensure effective prevention and safeguard national interests. Enacted in the Thirty-ninth Year of the Republic of India, it addresses the growing need for stringent measures against this menace.

The history of preventive detention in India is long. India's Constitution provides for preventive detention during peacetime, making it unique among governments worldwide. The European Court of Human Rights has consistently ruled that preventive detention violates the European Convention on Human Rights, even with legal safeguards. In August 2000, the South Asia Human Rights Documentation Centre (SAHRDC) submitted a recommendation to the National Commission to Review the Working of the Constitution (NCRWC) to remove sections in the Indian Constitution that clearly provide for preventive measures.

Constitutional Safeguards Against Preventive Detention Laws

The Constituent Assembly deliberated on Draft Article 15A[14], which later became Article 22 of the Constitution, on September 15 and 16, 1949. This provision was not initially included in the Draft Constitution of 1948. However, Dr. B.R. Ambedkar, the Chairman of the Drafting Committee, proposed its inclusion to address concerns that arose after the removal of the "due process clause" from Draft Article 15 (now Article 21[15]). Dr. Ambedkar explained that Draft Article 15A was intended to provide constitutional safeguards for personal liberty and protect individuals from arbitrary state action.

Draft Article 15A outlined essential protections for individuals who were arrested or detained. It mandated that no person could be detained without being informed of the grounds for arrest, nor could they be denied the right to consult a legal practitioner of their choice. Further, it required that arrested individuals be presented before a magistrate within 24 hours, with any further detention requiring judicial authorization. However, the article also made significant exceptions for preventive detention. These exceptions applied to individuals detained under preventive detention laws and enemy aliens. Preventive detention was limited to three months unless an Advisory Board, consisting of judges or those qualified to be judges, reviewed the case and found sufficient grounds for extended detention.

Dr. Ambedkar emphasized that these safeguards transformed statutory protections into constitutional guarantees, providing a framework to balance personal liberty with the state's need to maintain public order and security. Despite these protections, members of the Assembly raised concerns about the vague functioning of the Advisory Board and the lack of procedural clarity. To address these issues, an amendment was introduced, empowering Parliament to legislate the procedural framework for the Advisory Board and other related safeguards.

The Assembly ultimately adopted the modified Draft Article on September 16, 1949. This article sought to preserve individual liberties while recognizing the necessity of preventive detention in specific circumstances, setting a precedent for balancing constitutional rights with state security.

Article 22 of the Indian Constitution
Article 22 Clause(4)[16] limits preventive detention to three months, unless an Advisory Board, comprising current or former High Court judges, concludes that there is sufficient cause for extended detention. Detainees have the right to legal representation during the Board's proceedings. If the Board deems detention unjustified, the detainee must be released. Failure by the Advisory Board to issue an opinion within the prescribed time renders the detention invalid. Notably, the 44th Constitutional Amendment reduced the initial detention period without Board evaluation from three months to two months, though this amendment is yet to be enforced.

The Court in A.K. Roy v. Union of India[17] further highlighted the inherent conflict between preventive detention and procedural fairness. While Article 22(3) explicitly excludes the rights guaranteed in Clauses (1) and (2) from preventive detention cases, the Court held that detainees cannot be denied legal representation in Advisory Board hearings, even if not explicitly mentioned in Article 22. The Court noted regretfully, "It is unfortunate that Courts have been deprived of that choice by the express language of Article 22(3)(b), read with Article 22(1)."

Clauses 5&6 of Article 22
Clause 5 ensures that detainees are informed of the grounds for their detention and can make representations against it. This promotes procedural fairness.

Clause 6, however, allows withholding specific grounds for detention if disclosing them is deemed against public interest. This creates a balance between transparency and state security. Authorities must notify detainees of reasons "as soon as feasible" to safeguard the right to representation.

In Wasi Uddin Ahmed v. District Magistrate[18], Aligarh, the Supreme Court emphasized that Article 22(5) requires the government to afford detainees the opportunity to make a representation. This ensures that detainees are informed of their rights, enabling them to challenge the grounds of their detention effectively.

Article 22(7)[19]
This clause grants Parliament authority to legislate on preventive detention beyond three months without Advisory Board approval, defining the conditions and categories of cases for such detention. However, this broad power is criticized as regressive, as it lacks a clear methodology and could lead to arbitrary detentions. The Supreme Court in Sambhu Nath Sarkar v. State of West Bengal emphasized the need for safeguards to prevent misuse of these powers, advocating that decisions under Article 22(7) must align with constitutional principles of fairness and justice.

While Article 22 aims to strike a balance between individual liberty and state security, Clause 6 and 7 are prone to misuse due to their subjective nature. The lack of robust checks and balances raises concerns about transparency and accountability, making preventive detention a potential tool for oppression.

Judicial Review and Precedents
The judiciary plays a critical role in interpreting and limiting the application of preventive detention laws to ensure compliance with constitutional principles. Judicial review acts as a safeguard against arbitrary use, while judicial precedents establish guidelines to maintain a balance between public safety and individual liberty.

The Supreme Court has observed that Article 22 of the Constitution of India, which guarantees protection to a person against arbitrary arrest, effected otherwise than under a warrant issued by a Court of law, are regarded as vital and fundamental for safeguarding personal liberty[20]. In the case of Haradhan Saha v. State of W.B.[21], wherein it was said that "the purpose of preventive detention is to prevent the greater evil of elements imperiling the security and safety of a State, and the welfare of the Nation. Preventive detention, though a draconian and dreaded measure, is permitted by the Constitution itself but subject to the safeguards that are part of the relevant article and those carved out by the Constitutional Courts through judicial decisions of high authority which have stood the test of time"

The Court has held that so long Article 22(3) of the Constitution of India itself authorises detention as a preventive measure, there can be no two opinions that none can take exception to such a measure being adopted and it is only a limited judicial review by the Constitutional Courts that can be urged by an aggrieved detenu wherefor too, in examining challenges to orders of preventive detention[22].

The Court has also observed that the observation in Rekha v. State of T.N.[23], that:
"it is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in substance a detention order of one year (or any other period) is a punishment of one year's imprisonment. What difference is it to the detenu whether his imprisonment is called preventive or punitive?" does reflect an important aspect of loss of liberty without trial by taking recourse to preventive detention laws, however, the decision in Haradhan Saha (supra) still holds the field.

Though a simple reading of this constitutional provision appears to provide the government broad latitude, it was introduced as a proviso to clauses (1) and (2) of Article 22, implying that it was intended to be used as an exception to the general rule[24]. In Shakoor Ahmed v. State of J&K[25], the Court ruled that Article 22(3)(b), which provides for preventive detention, should be interpreted as an exception to the ordinary rule of protecting an individual's life and liberty under Article 21[26], and thus preventive detention[27] should not be used to curtail normal law and order situations.

The Seventh Schedule to the Constitution[28] specifies the subjects for which preventive detention laws can be enacted, including as "defence, foreign affairs and security of India, the maintenance of public order, or the maintenance of supplies and services essential to the community" . This indicates the Constitution-makers' goal to ensure that the provision of detention is only used in serious circumstances of public disruption, rather than regular concerns of law and order.

In Banka Sneha Sheela v. State of Telangana[29], the Court distinguished between "public order" and "law and order," holding that in order to create a picture of public disorder, the entire community or the public at large must be affected, and that mere "contravention of law" is insufficient.

In the case of A K Gopalan v. State of Madras[30], the petitioner challenged his detention in Madras Jail by filing a writ of habeas corpus. It questioned the meaning of the phrase "Personal Liberty." The question was whether the Preventive Detention Act of 1950 went too far in violating the Constitution's guarantee of fundamental rights. The Preventive Detention Act was ruled to be in accordance with the Indian Constitution, with the exception of Section 14, which is illegal and beyond the bounds of the Constitution.

Justice Das made the accompanying remark:
"A procedure laid down by the law-making body may offend the Court's feeling of equity and fair play and sentence given by the legislature may shock the Court's idea of penology, yet that is a completely superfluous question. Our security against legislative tyranny, if any, lies in free and canny public opinion which should, in the long run, stand up for itself."

The Supreme Court ruled in Khudiram v. State of West Bengal[31], where confinement was imposed under the Maintenance of Internal Security Act, 1971 (MISA), that the Court is not permitted to substitute its own supposition with that of the detaining authority, which is the most appropriate to make such decisions, nor does it have the authority to consider the ampleness or respectability of the grounds.

In Neelabati Bahera v. State of Orissa[32], the Supreme Court underlined that prisoners and detainees should not be denied their Fundamental Rights under Article 21, and that only legal restrictions on their enjoyment of those rights could be imposed. The Supreme Court also established the following guidelines, stating that arrest and imprisonment would be subject to the guidelines. Violation of these guidelines would result in not only departmental punishment, but also contempt of court proceedings before a High Court with jurisdiction over the subject.

The landmark case of D.K. Basu Versus State of West Bengal[33], the court laid down certain basic "requirements" to be followed in all cases of arrest or detention till legal provisions are made in that behalf as a measure to prevent custodial violence.

The Supreme Court observed in the case of Rekha v. State of Tamil Nadu[34], 2011 preventative detention as "repugnant to democratic ideas" and suggested that it be used sparingly in order to avoid infringing against Article 21 (Right to Life and Liberty).


In the 2014 case of Mariappan v. the District Collector And Others[35], the Madras High Court reaffirmed that the purpose of preventive custody is to shield the state from harm rather than to punish the detainee. The authority's subjective satisfaction with criteria including public order, international affairs, state security, and community services determines whether to hold someone.

In the 2019 case of Prem Narayan v. Union of India, the Allahabad High Court ruled that preventative detention violates a person's right to personal freedom and cannot be applied arbitrarily.

Rights of Arrested Persons under Preventive Detention
The Indian Constitution establishes complex procedural rights for preventative detention proceedings. According to Article 21, individuals can only be deprived of their personal liberty if a "lawful procedure" is followed. According to Article 22, individuals who are arrested or detained must be informed of their arrest grounds, have access to legal counsel, and appear before a magistrate within 24 hours. The progressive procedural rights regime does not apply to preventative detention situations. The Constitution explicitly states that Articles 21 and 22 (1)-(2) do not limit Parliament's ability to create preventive detention measures. These legislation must include basic procedural safeguards.

Right to be informed
Section 50(1) of the CRPC states that a police officer who arrests someone without a warrant must inform the person arrested about the nature of the offense for which he was arrested. And if the offence he has committed is bailable, it is the police officer's responsibility to advise the arrested individual that he is entitled to be freed on bail and may arrange for sureties on his behalf. Article 22(2) of the Indian Constitution also stipulates that the arrested individual must be notified of the reasons for his arrest[36]. It also enables the arrested person the right to inform his family members, relatives, or friends about his arrest.

In Joginder Kumar vs State of Uttar Pradesh[37], the Supreme Court ruled that a person arrested has the right to inform any friend, relative, or family member of his choice of his detention. When an arrestee is brought to the police station, the officer must also inform him of his rights.

Right to be released on Bail
Section 50(2) of the CRPC provides that if the accused has committed a bailable offence, the police officer must inform the arrested person of his right to be freed on bail. Article 21 of the Constitution guarantees every person's liberty until proven guilty. Furthermore, he has the right to understand that if the court grants bail after considering the seriousness or nature of the offense, he may be granted it even for non-bailable offenses.

In addition, Section 167 grants the accused the right to be released on bond in the event that the investigation into his crime is not finished within sixty or ninety days of the date of his arrest. Another name for this is default bail. The court granted default bail to the accused in Uday Mohanlal Acharya vs. State of Maharashtra[38], citing the police officers' failure to obtain evidence against him within the allotted investigative period as stipulated in Section 167 of the Code of Criminal Procedure.

The Right To be Taken Immediately Before A Magistrate
Section 56 of the CRPC states that the police officer making the arrest, with or without a warrant, must bring the accused before the magistrate within 24 hours of his custody, discounting travel time from the scene of the arrest to the magistrate's court.

The Right To be Represented
According to Section 41D of the CRPC, the accused has the right to speak with any counsel of his choosing and to meet with any advocate of his choosing while being questioned, but not during the interrogation. Additionally, Article 22(2) protects the arrested person's right to consult with any attorney of his choosing. According to Section 303 of the CrPC, when someone is accused of committing an offense, has the right to have a lawyer of his choosing represent him before the criminal court or against whom proceedings have been started.

Right To Free Legal Aid
Article 39A[39] of the Indian Constitution guarantees the right to free legal aid.
Giving economically disadvantaged persons access to legal services so they can file a case or engage in any legal processes in a court of law, judicial tribunal, or judicial body is known as free legal aid. A PIL was filed in the Supreme Court in the case of Hussainara Khatoon v. State of Bihar[40] the Court ruled that an accused person has the right to free legal aid at the state's expense if he cannot afford the legal services.

The Crpc Section 54(1) guarantees the accused the right to a comprehensive physical examination. The accused may utilize this examination to refute the alleged offense he committed or to get proof that the offense was committed by someone else. However, it is only possible if the magistrate grants authorization.

Preventive Detention a Constitutional Tyranny
"Detention without trial is an evil to be suffered, but to no greater extent and in no greater measure than is minimally necessary in the interest of the country and community.[41]"

Preventive detention has often been criticized as a constitutional aberration, despite its procedural safeguards under Article 22 of the Indian Constitution. The Supreme Court has acknowledged that preventive detention laws, while draconian, are permitted under the Constitution with safeguards to minimize misuse.

The Constitution mandates that detentions exceeding three months must be reviewed by an Advisory Board, which is predominantly an executive review of executive decision-making. This mechanism violates detainees' right to appear before an independent and impartial tribunal, as required by international human rights norms such as Article 14(1) of the ICCPR and Article 10 of the Universal Declaration of Human Rights.

Additionally, the absence of periodic review mechanisms weakens the safeguard. The Advisory Board reviews a case only once, even if the detention continues for extended periods. To ensure that detention remains "strictly required," the Constitution should mandate regular assessments of the circumstances and terms of incarceration[42].

India's preventive detention laws fall short of international human rights standards, which stress the importance of protecting detainees from torture, discrimination, and the misuse of detention to suppress dissent. Article 9(5) of the ICCPR guarantees the right to compensation for unlawful detention, a principle that India has not fully incorporated into its legal framework.

The Law Commission has noted that Supreme Court judgments have effectively recognized the right to compensation for unlawful detention, thereby surpassing India's objection to Article 9(5). The Prevention of Terrorism Bill, 2000 similarly includes provisions for compensation. In light of this, it is recommended that the Government of India withdraw its reservation to Article 9(5) of the ICCPR and incorporate a constitutional provision ensuring compensation for wrongful detention.

If preventive detention is to remain part of India's Constitution, it must be used only in specific, limited circumstances and with proper safeguards to preserve prisoners' fundamental rights.

To align preventive detention laws with constitutional and international human rights standards, the following reforms are essential:

• Strict Criteria for Application: Preventive detention should be used only in cases of grave national emergencies and public order disruptions.
• Periodic Review Mechanisms: Mandatory reassessments of detention cases to ensure that detention remains necessary and justified.
• Independent Tribunals: Replace executive-dominated Advisory Boards with impartial judicial bodies to review detention cases.
• Right to Compensation: Establish a constitutional guarantee for compensation for unlawful detention to deter misuse and ensure accountability.

Conclusion
The right to personal liberty is a fundamental and inherent birthright, protected by the Indian Constitution as a cornerstone of individual freedom. However, the power of preventive detention, as authorized by Article 22, presents a significant challenge to this liberty. While preventive detention laws are designed to safeguard public order and national security, their frequent misuse and mechanical application often lead to the unjust deprivation of personal freedoms.

In a secular and democratic nation like India, where the Constitution upholds the rights of individuals, such extraordinary powers must be exercised with utmost caution. Preventive detention during peacetime, in particular, contradicts the fundamental principles of liberty and democracy. It reflects a lack of rigorous investigative standards and, in many cases, arbitrary and unjustified actions by authorities. This not only undermines India's democratic values but also creates a pathway for potential abuse of power, resulting in unwarranted detentions without trial.

Given that existing criminal laws provide sufficient mechanisms to address threats and criminal behavior, there is a strong case for reevaluating, and perhaps repealing, preventive detention statutes. Such laws often conflict with the rights guaranteed under Articles 19, 21, and 22, jeopardizing individual liberties and overburdening the judiciary with challenges to these detentions.

To prevent misuse, the government must ensure that preventive detention laws are applied judiciously and strictly within the framework of constitutional safeguards. The implementation of these laws must strike a delicate balance between maintaining national security and protecting human liberties.

Ultimately, while the purpose of preventive detention is to preemptively address threats to society, its execution must uphold the democratic ethos of India. By ensuring that the rule of law governs the use of such powers, the nation can maintain its commitment to both security and liberty, preserving the very essence of its constitutional democracy.

End Notes:

1. Constitution of India, art. 22.
2. https://lawinsider.in/columns/what-is-preventive-detention
3. 481 U.S. 739 (1987)
4. (1946)48BOMLR1
5. (1945)47BOMLR42
6. http://www.dlnluassam.ndl.iitkgp.ac.in/xmlui/bitstream/handle/123456789/464/Mridusmita%20Sarkar%20239.pdf?sequence=1&isAllowed=y
7. Constitution of India, Art.19.
8. Constitution of India, art. 21.
9. Constitution of India, Art.22(4), (5), (7)
10. AIR 1976 SC 1207, 1976 SCC (2) 521
11. Available at, http://nhrc.nic.in/documents/publications/HRActEngpdf (20th May, 2018)
12. The provisions of POTA are found in other statutes such as the National Security Act, 1980; The Armed Forces Special Powers Act, 1958; the Disturbed Areas Act, 1990; The Unlawful Activities (prevention) Act, 1967; The prevention of seditious Meetings Act, 1911; The Anti-Hijacking Act, 1982 No.65 of 1982; The Suppression of Unlawful Acts against Safety of civil Aviation Act, 1982, No.66 of 1982; The Disturbed Areas Special Court Act, 1976; The Foreign Exchange Management Act, 1999; The prevention of Blank-marketing and Maintenance of Supplies of Essential Commodities Act, 1980; The prevention of Illicit Traffic in Narcotic Drugs and psychotropic substances Act,1988; The Indian Telegraph Act, 1885 or The Information Technology Act, 2000. Furthermore, preventions that are not covered by the above Acts violate the Indian penal Code, the Criminal procedure code, the Indian Evidence Act, and fundamental rights chapter of the Indian Constitution.
13. Crimes in India, annual report published by NCRB, Home Ministry of India, New Delhi, 2010.
14. IX Constituent Assembly Debates 1536 (1949).
15. Constitution of India, Art. 21.
16. Constitution of India, art. 22.(4)-(6)
17. A.I.R. 1982, S.C. 710, 743
18. AIR 1981 SC 2166
19. Constitution of India, art. 22 (7)
20. https://www.scconline.com/blog/post/2023/09/06/sc-explains-tests-for-deciding-legality-of-preventive-detention-orders-legal-news/
21. (1975) 3 SCC 198
22. Shibban Lal Vs. State of U.P., AIR 1954 SC 179 : (1954) Cri LJ 456
23. (2011) 5 SCC 244
24. Abhinav Sekhri, Why it is critical to review preventive detention laws, Hindustan Times, Feb 24th, 2020 06:15 PM IST, https://www.hindustantimes.com/analysis/why-it-is-critical-to-review-preventive-detention-laws/storyOuN05iXpk3OZS9nrkSStUN.html
25. 2018 SCC ONLINE J&K 407
26. Constitution of India, Art. 21.
27. https://www.scconline.com/blog/post/2022/12/09/reflections-on-indias-preventive-detention-laws-need-for-judicial-scrutiny-of-the-administratively-steered-mechanism/#fn6
28. Constitution of India, Seventh Schedule.
29. (2021) 9 SCC 415
30. AIR 1950 SC 27 : (1950) SCR 88
31. 1975 2 SCC 81
32. AIR 1993 SC 1960
33. (1997 (1) SCC 416)
34. (2011) 3 CTC 222 : (2011) 5 SCC
35. (2015) 1 MadWN (Cri) 40
36. Ram Bahadur Rai v. State of Bihar, A.I.R. 1975 S.C. 223.
37. 1994 SCC (4) 260
38. 2001(5) SCC 453
39. Constitution of India, Art.39A.
40. 1979 AIR 1369
41. Vijay Narain Singh v. Bihar, A.I.R. 1984 SC 1334, 1336.
42. Rudrasin, Preventive Detention and Constitution of India- Effect on Human Rights, Legal Services India, http://www.legalservicesindia.com/article/1891/Preventive-Detention-and-Constitution-of-India---Effect-onHuman-Rights.html

Written By: Ved Mishra, University School of Law & Legal Studies(USLLS), GGSIPU, New Delhi
Email: [email protected]