Preventive Detention and the Limits of State Power

Source: The Hindu 

Introduction 

The Delhi Police detained over 5,000 people who were trying to reach Jantar Mantar to protest, demanding the resignation of Chief Election Commissioner Gyanesh Kumar and a rollback of the SIR. Those detained reportedly included political leaders, lawyers, journalists, students and activists, with some detained even before the protest began. On 11th October 2026, the Supreme Court directed the Centre and the Delhi Police to ensure free movement of people, subject to law and order. The episode raises key questions about the scope of preventive detention and prohibitory orders, and the constitutional limits on both. 

What is Preventive Detention? 

• Preventive detention means detaining a person without trial or conviction by a court. 
• Its object is not to punish a past act, but to prevent the person from committing an offence in the future. 
• It may be exercised on grounds such as public order, security of the State, and maintenance of law and order. 
• The National Security Act, 1980 (NSA) permits such detention where the government is satisfied that a person's activities are prejudicial to the defence of India, India's relations with foreign powers, or the security of the State. The maximum period of detention under the Act is 12 months. 

What are the Constitutional Safeguards? 

Article 22 of the Constitution protects persons against arbitrary detention: 

• Article 22(3): The ordinary safeguards of arrest under clauses (1) and (2) do not apply to persons detained under a preventive detention law. 
• Article 22(4): No person can be detained for more than three months unless an Advisory Board reports sufficient cause for continued detention. 
• Article 22(5): The grounds of detention must be communicated to the detenu as soon as may be, and he must be given the earliest opportunity to make a representation. 
• Article 22(6): Facts considered against the public interest need not be disclosed. 
• Article 22(7): Parliament may prescribe circumstances for detention beyond three months without an Advisory Board's opinion. 

Detention orders are also subject to judicial review, and the writ of habeas corpus under Articles 32 and 226 is the primary remedy against unlawful detention. 

How has Preventive Detention Evolved in India? 

• Colonial Period: The Rowlatt Act, 1919 and the Defence of India Act, 1939 allowed detention without trial, often against freedom fighters and political opponents. 
• Preventive Detention Act, 1950: India retained preventive detention after Independence; this Act remained in force until 1969. 
• MISA, 1971: The Maintenance of Internal Security Act widened detention powers and was widely used against political opponents during the Emergency (1975–1977). It was repealed in 1978. 
• NSA, 1980 and COFEPOSA, 1974: These created a continuing framework for preventive detention, including for economic offences such as smuggling. 
• UAPA, 1967: Its amendments expanded the State's powers to deal with terrorism and unlawful activities. 
• Judicial Shift: In Maneka Gandhi v. Union of India (1978), the Supreme Court held that any procedure restricting personal liberty must be just, fair and reasonable. 

What is a Prohibitory Order under the BNSS? 

• Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) corresponds to Section 144 of the CrPC, 1973. 
• It empowers a District Magistrate, Sub-Divisional Magistrate, or a specially empowered Executive Magistrate to issue orders where immediate prevention or speedy remedy is desirable. 
• Object: To prevent obstruction, annoyance or injury to lawfully employed persons, danger to human life, health or safety, disturbance of public tranquillity, a riot, or an affray. 

Key Features: 

• The power is preventive and may be exercised even without prior notice in urgent situations. 
• The order must state the material facts on which it is based. 
• It ordinarily remains in force for up to two months, extendable by the State Government up to six months. 
• It is subject to judicial review by the High Courts. 

Preventive Detention vs. Prohibitory Order: 

What did the Supreme Court Order on 11th October 2026? 

In a special Sunday hearing, the Supreme Court directed that: 

• Illegal detentions must stop, and free movement of people, traffic, Metro and rail services must be allowed, subject to law and public order. 
• Internet services must remain available in accordance with law, and barricades must be reviewed based on law-and-order and traffic needs. 
• Every detention must follow the procedure established by law. 
• Peaceful assemblies must be allowed, except in areas covered by orders under Section 163 BNSS. 
• Section 163 notice boards near the Supreme Court must be removed to ensure access to courts. 
• Lawyers, journalists and other professionals must not be prevented from performing their duties. 

The Court also issued notice in contempt proceedings for violation of its 9th October order, sought a compliance report by 13th October, and tagged habeas corpus petitions on the mass detentions with the main matter. It required the State to explain the legal basis of the detentions, stressing its duty under Article 32 to protect fundamental rights. 

What have the Courts Held? 

• Babulal Parate v. State of Maharashtra (1961): Section 144 CrPC is valid, but can be used only in emergencies to prevent specific threats to public order, and is not an unlimited power. 
• Madhu Limaye v. Sub-Divisional Magistrate (1971): The power must be exercised judicially and only in urgent situations, not routinely. 
• Khudiram Das v. State of West Bengal (1975): Communication of grounds of detention is a check against arbitrary power, enabling the detenu to make a representation and seek judicial review. 
• In Re: Ramlila Maidan Incident (2012): Section 144 can be invoked only in sudden and grave emergencies; its use against a sleeping crowd was criticised. 
• Mazdoor Kisan Shakti Sangathan v. Union of India (2018): A complete ban on protests at Jantar Mantar was excessive; authorities must instead regulate protests. 
• Shaik Nazneen v. State of Telangana (2022): Preventive detention is an exceptional power that strikes at liberty and cannot be used routinely. 
• Ameena Begum v. State of Telangana (2023): The safeguards of the "golden triangle" of Articles 14, 19 and 21 must be diligently enforced in preventive detention cases. 

Conclusion 

Preventive detention and prohibitory orders are meant for exceptional situations where ordinary law enforcement may be too slow to prevent imminent harm. Because they curtail liberty without trial, the Constitution subjects them to the safeguards of Article 22 and the tests of fairness, reasonableness and proportionality under Articles 14, 19 and 21. The Delhi protests and the Supreme Court's intervention show that the power to maintain public order cannot be used to suppress peaceful dissent, and that courts remain the ultimate guardians of personal liberty.