The Politics of Preventive Detention in India: Law, Legacy, and Democratic Anxiety
- polsodepthindu
- 8 hours ago
- 4 min read
Preventive detention is one of the most unusual and contested features of India’s democratic system. Unlike ordinary detention, where a person is arrested for an offence already committed, preventive detention allows the state to detain an individual on the belief that they may commit an act threatening public order or national security. In simple terms, it is detention based on anticipation rather than proof. Its continued use in contemporary India demonstrates that it is far from a dormant constitutional provision.
Following the abrogation of Article 370 in 2019, several political leaders in Jammu and Kashmir, including former Chief Ministers Mehbooba Mufti and Omar Abdullah, were placed under preventive detention for extended periods. Similarly, during the protests against the Citizenship (Amendment) Act, activists such as Safoora Zargar were detained under preventive and security-related laws on the grounds of maintaining public order. Preventive detention laws, particularly the National Security Act, have also been invoked against journalists and individuals accused of disrupting communal harmony in states such as Uttar Pradesh. What makes this power especially significant is that it is not an emergency provision; it is explicitly recognised and permitted by the Constitution of India, allowing its use even during ordinary times of democratic governance.
The constitutional basis for preventive detention lies in Article 22 of the Constitution. While the article guarantees certain procedural safeguards, such as informing the detainee of the grounds of detention and providing for review by advisory boards, it also removes many protections ordinarily associated with personal liberty. Preventive detainees may be held without trial, with limited access to legal remedies and restricted judicial oversight. The Constitution thus attempts to strike a balance between individual freedom and state security. However, in doing so, it creates a legal space where liberty can be curtailed not as a punishment for wrongdoing, but as a precaution against a perceived future threat.
To understand why such a power exists within a democratic framework, it is necessary to examine its historical legacy in India.
Preventive detention was a core instrument of British colonial governance. Laws such as the Bengal State Prisoners Regulation of 1818, the Defence of India Acts during the World Wars, and the Rowlatt Act of 1919 enabled the colonial state to imprison Indian nationalists without trial. These laws were not aimed at addressing crimes already committed; rather, they were designed to pre-empt political mobilisation and suppress dissent. Leaders of the freedom struggle were routinely detained on the basis of suspicion, reflecting the colonial state’s deep mistrust of political participation and mass movements.
At the time of independence, the framers of the Constitution were fully aware of this oppressive legacy. Preventive detention was intensely debated in the Constituent Assembly, with several members opposing its inclusion on moral, legal, and democratic grounds. However, the political realities of the period shaped the final decision. The trauma of Partition, large-scale communal violence, refugee movements, and concerns over internal stability led the leadership to view preventive detention as a necessary, though undesirable, safeguard for a newly formed and fragile state. As a result, Article 22 constitutionalised preventive detention while attempting to limit it through procedural safeguards. Ironically, a power once used to suppress the freedom struggle was transformed into a constitutionally sanctioned tool of the independent Indian state.
Over time, preventive detention has remained a regular feature of Indian governance. Numerous central and state laws authorise such detention, often justified in the name of public order, national security, or social stability. What is striking is that these laws are not confined to moments of extraordinary crisis. Preventive detention is frequently employed in routine administrative contexts, blurring the line between exceptional power and normal governance. This shift raises serious questions about how extraordinary measures become normalised within a constitutional democracy.
The democratic discomfort surrounding preventive detention stems largely from its reliance on executive discretion. Detention orders are typically based on subjective assessments of potential threats rather than concrete evidence of criminal conduct. This makes effective legal challenge difficult. Moreover, concepts such as “public order” and “security” are broad and elastic, allowing wide interpretation by state authorities. While the stated objective is prevention, the lack of transparency and accountability creates an environment in which fear and uncertainty can thrive.
Judicial oversight in cases of preventive detention has generally been cautious. Courts have often limited their scrutiny to procedural compliance, examining whether timelines, documentation, and advisory board reviews have been followed. Substantive questions regarding the necessity or proportionality of detention are rarely addressed in depth. This reflects the constitutional constraints placed on judicial intervention, but it also highlights the difficulty of challenging preventive detention on deeper democratic and ethical grounds.
Preventive detention thus reveals a fundamental tension within Indian democracy. On one hand, the state seeks to maintain order and prevent harm before it occurs. On the other, democracy rests on principles of due process, accountability, and the presumption of innocence. Preventive detention operates at the uneasy intersection of these impulses, privileging security through anticipation over justice through procedure. Its continued and routine use suggests an enduring preference for administrative control in moments of uncertainty.
Engaging with preventive detention therefore requires more than simply reacting to individual cases. It demands a broader reflection on how fear, governance, and constitutional authority interact within a democratic society. As long as preventive detention remains a normal instrument of state power, it will continue to raise unsettling questions about the limits of liberty and the meaning of democracy in India.
Bibliography
Constitution of India, Article 22.
Constituent Assembly Debates, Vol. VII (1948–49).
A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
National Security Act, 1980.
Upendra Baxi, The Crisis of the Indian Legal System, Oxford University Press.
Gautam Bhatia, The Transformative Constitution, HarperCollins India.
Law Commission of India, Report on Preventive Detention Laws.
ABOUT WRITER
Evan Jyoti Borbora is a Second Year Student Of History Hons. From Aryabhatta College of University Of Delhi.