Answer

Introduction

Preventive detention, termed a “necessary evil,” seeks to preserve public order amid rising security challenges, while balancing individual freedoms. Yet by allowing confinement without trial, it often sidelines the constitutional safeguards of equality, freedom, and life under Articles 14, 19, and 21 creating a legal void that tests India’s democratic conscience.

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Challenges posed by preventive detention laws to individual liberty in India

• Ambiguity in Definition of “Public Order”: Preventive detention laws like KAAPA define “goonda” and “rowdy” broadly, allowing detention for minor law‑and‑order issues rather than genuine public threats.
  Eg: In S.K. Nazneen vs State of Telangana (2023), the Supreme Court held that preventive detention was unjustified for mere law‑and‑order situations.
• Bypassing Procedural Safeguards: Article 22 allows preventive detention without a regular trial, curtailing the right to a fair hearing under Articles 14 and 21.
  Eg: In A.K. Gopalan vs State of Madras (1950), the Court upheld preventive detention even without substantive judicial review, highlighting the absence of due process protections.
• Executive Overreach and Subjectivity: Detention orders depend on the “subjective satisfaction” of authorities, with minimal judicial oversight, creating scope for misuse.
  Eg: The Supreme Court in Dhanya M. vs State of Kerala (2025) stressed the need for sparing use, yet executive powers remain unchecked in many cases.
• Lack of Judicial Review on Merits: Courts review only procedural compliance and not the substantive grounds under preventive detention, isolating it from the “Golden Triangle” of fundamental rights.
  Eg: In A.K. Roy vs Union of India (1982), the Court refused to test preventive detention laws against Articles 14, 19, and 21.
• Potential for Political Misuse: Preventive detention is vulnerable to being used against dissent, protests, and political opposition under the guise of “public order”.

Need for Preventive Detention Laws in India

• National Security Protection: Preventive detention allows authorities to stop threats like terrorism or insurgency before they occur.
  Eg: Under the National Security Act (1980), suspects can be detained to prevent violent acts against the state.
• Rapid Crisis Response: Enables swift action during riots or emergencies when normal legal procedures are too slow.
  Eg: Used to control sudden communal clashes or violent protests before they escalate.
• Economic Stability: Helps curb crimes such as smuggling or hoarding that endanger national interests.
  Eg: The COFEPOSA Act (1974) targets habitual smugglers and black marketeers.
• Public Order Maintenance: Prevents habitual offenders from disturbing peace and community life.
  Eg: The Kerala Anti-Social Activities (Prevention) Act, 2007 allows detention of repeat anti-social elements.
• Intelligence-Based Prevention: Acts on credible information to stop crimes before execution like planned sabotage or arms trade based on intelligence reports.

Measures to Alleviate the Same

• Narrow and Clear Definitions: Legislation should clearly define “public order” to prevent arbitrary detention.
  Eg: Amend KAAPA to distinguish strictly between “public order” and “law and order” cases.
• Strengthen Procedural Safeguards: Mandatory periodic judicial review of preventive detention orders to ensure adherence to fair process.
  Eg: Similar to the safeguards in Maneka Gandhi vs Union of India (1978), apply a proportionality test to all detentions.
• Limit Executive Discretion: Introduce independent review committees to examine the necessity of detention orders.
  Eg: Create statutory safeguards where detention orders require approval from a high‑level authority beyond the detaining officer.
• Judicial Merits Review: Allow courts to examine the substantive grounds for preventive detention alongside procedural compliance.
  Eg: Incorporate principles from Article 21 to subject preventive detention to due process and proportionality standards.
• Prevent Political Misuse: Restrict preventive detention strictly to situations involving grave threats such as terrorism, serious organised crime, and large‑scale violence.
  Eg: Explicitly exclude political protests or dissent from the ambit of preventive detention unless they present a proven threat to public order.

Conclusion

While preventive detention serves national security, its frequent misuse undermines constitutional morality and citizens’ trust in justice. Reforms rooted in transparency, proportionality, and judicial accountability are vital to ensure that the power to detain protects democracy rather than diminishing the very freedoms it seeks to secure.

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