Tracing the footsteps of

preventive detention laws in India

-Tanvi Jain
 Introduction

Backdrop around the time

our Constitution was anti-national and
Communal Violence
framed by the Constituent subversive forces
Assembly

and problems over

integration of States into
war with Pakistan over Razakar movement in the Union weighed
Kashmir Hyderabad heavily on the minds of
members of the
Constituent Assembly
 • The term “preventive detention” in Indian law
has not been determinatively laid down in any
statue.
• Preventive detention is the act of detaining an
individual without trial, which is carried out at
the discretion of the executive.
What is • In Durga Das Basu’s view (Authority of Indian
preventive Constitutional Law), In such circumstances
wherein the evidence possession of the
detention? authority is insufficient to make a charge or to
secure the conviction of the detenu by legal
proofs, but may still be sufficient to justify the
detention on the suspicion that the detenu
would commit a wrongful act unless detained,
preventive detention is often resorted to.
• In the case of A.K. Gopalan v. State of Madras [AIR 1950 SC
27], Justice Patanjali Sastri explained the need for preventive
detention by stating that it was intended to prevent the misuse
of personal liberty by individuals who pose a threat to the
national welfare of a newly formed democratic nation. This
provision may seem contradictory to the fundamental right of
personal liberty enshrined in a democratic constitution, as well
as the promises of its Preamble.
 Article 22 of the Indian Constitution
Sub-Clauses (1) & (2) Sub-Clause 3
Four Rights – Two exceptions
(1) No person who is arrested shall be detained in (3) Nothing in clauses ( 1 ) and ( 2 ) shall apply (a) to
custody without being informed, as soon as may be, of any person who for the time being is an enemy alien; or
the grounds for such arrest nor shall he be denied the (b) to any person who is arrested or detained under any
right to consult, and to be defended by, a legal law providing for preventive detention
practitioner of his choice
(2) Every person who is arrested and detained in
custody shall be produced before the nearest magistrate
within a period of twenty four hours of such arrest
excluding the time necessary for the journey from the
place of arrest to the court of the magistrate and no
such person shall be detained in custody beyond the
said period without the authority of a magistrate
 Constitutional Safeguards
Article 22(4)-(7) contain safeguards against abuse of preventive detention:
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months
unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High
Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such
detention:
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority
making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall
afford him the earliest opportunity of making a representation against the order
(6) Nothing in clause ( 5 ) shall require the authority making any such order as is referred to in that clause to disclose facts which
such authority considers to be against the public interest to disclose
(7) Parliament may by law prescribe(a) the circumstances under which, and the class or classes of cases in which, a person may be
detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of
an Advisory Board in accordance with the provisions of sub clause (a) of clause ( 4 );
(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for
preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of clause ( 4 ) Right against Exploitation
 • Entry 9 of List 1, 7th Schedule
Union’s Power - for reasons connected with
Legislative Defence, Foreign Affairs or the Security of
India

power - Law • Entry 3 of List III

State’s Power -for reasons connected with
of security of the State, maintenance of public
order, or the maintenance of supplies and
services essential to the community
preventive • Concurrent Power

detention Entry 1 of List II - public order

Entry 27 of List II - production, supply and
distribution of goods
 Colonial footprints
MC Setelvad; Indian Jurist’s View
The framers of the Indian Constitution did not just rely on the British
concepts and institutions that India inherited from British rule, but they also
made sure to preserve the continuity of the governmental system that had
developed under British rule. Rather than breaking away from the past, they
valued and kept what had been effective and familiar to them. As a result,
the resulting structure was not only fundamentally British in its design, but it
was also an adaptation and expansion of the pre-existing system.
• Laws authorising preventive detention existed in British colonial rule in
India since 1818.
• Many members of the freedom movement spent years in jails without ever
being tried and convicted.
• The power conferred on the Executive to arrest persons on suspicion can be
traced to the early days of British Rule in India. The Bengal Regulation III
of 1818 [the Bengal State Prisoners Regulation] and similar laws in Madras
and Bombay Presidencies conferred powers to detain a person on suspicion.
• This term had its origin in the language used by Law Lords in England
while explaining the nature of detention under Regulation 14-B, Defence
of Realm Act, 1914, passed on the outbreak of the First World War, and
the same language was repeated in connection with emergency regulations
made during the Second World War.
• But no power of preventive detention has been exercised by the British
Parliament during peace time. The Indian Constitution, however,
recognizes preventive detention in normal times also.
•During the commencement of
World War II, the British
Parliament passed the
Emergency Powers (Defence)
Act in 1939, which enabled the
creation of regulations that
allowed for the implementation
of preventive detention.
•The relevant provision was as
follows:-
“If the Secretary of State has
reasonable cause to believe any
person to have been or to be of
hostile origin or associations or
to have been recently
concerned in acts prejudicial to
the public safety or the defence
of the realm or in preparation
or instigation of such acts and
that by reason thereof, it is
necessary to exercise control
over him, he may make an
order directing that he be
detained.”
 Emergency Preventive Maintenance of
Defence of Realm Act, Defence of India
Powers Defence Detention Act, Internal Security
1914 Act, 1939
Act, 1939 1950 Act, 1971

Prevention of Black
Prevention of Illicit
Marketing and
Conservation of foreign exchange Traffic in Narcotic
National Security Act, maintenance of
and prevention of smuggling Drugs and
1980 supplies of essential
activities Act, 1974 Psychotropic
commodities Act,
Substances Act, 1988
1980
 The Constitution (44th Amendment) Act

After the Emergency period, the Janata Government made changes to Clauses (4) and (7)
and passed the Constitution (44th Amendment) Act, 1978, in an effort to make the
process of preventive detention less severe. Section 3 of the 44th Amendment Act placed
restrictions on the government's power to impose preventive detention in several ways.
For instance, the maximum duration of detention was reduced from three months to two
months, and the appointments to Advisory Boards were to be made based on the
recommendations of Chief Justices of High Courts. Furthermore, all members of the
Advisory Board were mandated to be current or former High Court judges, and
Parliament was no longer allowed to exempt the government from Advisory Board
review of detention orders in specific cases.
• Nevertheless, prior to the issuance of such notifications, the Janata government
lost power, and in January 1980, Indira Gandhi (Congress) regained her position
as the leader of the government.
• In the case of A. K. Roy v Union of India, the Supreme Court observed that there
seemed to be no justification for not implementing section 3 of the 44th
Amendment, considering that 43 out of the 44 sections had already been put into
action. The Court held that the issue of preventive detention and the enactment
of the Amendment was the responsibility of the legislature, not the judiciary, and
therefore the implementation of section 3 could not be mandated by the Court..
• Consequently, the original provisions concerning preventive detention
in Article 22 still exist to this day, and despite being formally passed by
Parliament, the pertinent provisions of the Amendment Act of 1978 are
not being enforced.
• The South Asia Human Rights Documentation Centre criticized the delay
in implementing Section 3 of the 44th Constitution (Amendment) Act.
Although most of the amendment had been legislated since June or August
of 1979, the provisions regarding preventive detention had not been put
into effect even though the entire amendment had been passed by both
houses of Parliament and signed by the President. Due to this failure,
preventive detention has been misused through both old and new
legislation at the central and state levels, despite the intended reforms of
the 44th Amendment.
 Preventive vs Punitive
The term "preventive" is used to differentiate it from "punitive" as stated by
Lord Finley in the case of R v. Haliday [1917 AC 260, 269]. According to
him, it is not intended as a punishment but rather a precautionary measure.
Preventive detention is unlike regular or punitive detention in terms of its
purpose and rationale. The objective of preventive detention is not to
penalize an individual for something they have already done, but to intercept
and prevent them from doing something harmful. No wrongdoing has been
proven, and no charges have been formulated. The justification for such
detention is based on suspicion or reasonable likelihood of the impending
commission of a harmful act as opposed to a conviction.
 Way Forward
• I through this subject seek to find what exactly necessitated the legislation of preventive
detention laws in the newly democratic India after having severely suffered at its hand
during the British colonial rule.
• This exigent provision was justified in the backdrop of the Partition and the Indian
project of unification of its member states post Independence. However, the justification
remained reasonable for only a limited period of time.
• The Emergency period has taught us the severe repercussions of such extensive powers
in the hands of the executive. Furthermore, the lawmakers also post independence had
gone one step ahead and legally sanctioned preventive detention over and above times of
‘disturbance’ and/or ‘Emergency’ for which our Constitution provides.
• I wish to argue going forth that such a practice of preventive detention lead to a
situation of ‘Institutionalized Emergency’
• In order to stop this proposed situation from growing roots within the system, we
need to
a) Either do away with the practice of Preventive Detention altogether
b) Or enforce the changes made in the 44th Amendment and limit the scope and
operation of ‘preventive detention’ during either internal or external disturbances,
the interpretation of which is not left up to the discretion of the executive but
rather defined and delimited by the legislature.