TABLE OF CONTENTS

SL PARTICULARS PAGE
NO. NO.
1 TABLE OF CASES 1
2 INTRODUCTION 2
3 OBJECTIVES 3
4 RESEARCH METHODOLOGY 4
5 CONSTITUTIONAL PROVISION OF PREVENTIVE DETENTION 5-8
6 PREVENTIVE DETENTION LAWS IN INDIA 9
7 SOME PREVENTIVE DETENTION IN RECENT TIMES 12
8 PREVENTIVE DETENTION IN DIFFERENT COUNTRIES 13
9 CONCLUSION
10 SUGGESTION
11 BIBLIOGRAPHY
 TABLE OF CASES

SL NAME OF THE CASE CITATION PAGE

NO. NUMBER
1 Ankul Chandra Pradhan v. Union of India AIR 1997, SC 2814 2
2 Hussainara Khatoon v. Home secretary, AIR 1369 (SC) 5
State of Bihar
3 Tarun Kumar Das and Ors. v. State of 1982 CriLJ 1054 6
Assam and Ors
4 Mohammad Yousuf v. State of J & K AIR 1979 SC 1925 7
5 Lallubhai Jogibhai Patel v. Union of India (1981) 2 SCC 427 7
6 Abdul Karim v. State of West Bengal 1969 AIR 1028 8
7 A.K. Gopalan v. State of Madras AIR 1369 (SC) 9
8 Maneka Gandhi v. Union of India AIR 1978 SC 597 9
9 A.K. Roy v. Union of India AIR 1982 SC 710 10,11

1
 INTRODUCTION

‘Preventive detention’ is made up of two words ‘Preventive’ and ‘Detention’. ‘Preventive’

here means designed to keep something undesirable or harm from occurring and ‘Detention’
means the action of detaining someone or the state of being detained in official custody. The
person detained is also called ‘detenu’. Therefore, preventive detention means to detain
someone merely on the basis of suspicion or probability and not on the basis of trial or
conviction by the court that the detenu might commit some act which will cause harm to the
society and also might commit additional crimes if they are released.
The detention can be of two types preventive detention and punitive detention. Punitive
detention is to punish a person for an offence committed by him after trial and conviction by
the court. The main object of preventive detention is not to Punish but to intercept to prevent
the Detenu from doing something prejudicial to state 1. In this research work we will study
about the preventive detention in details and its constitutional validity.
India had a preventive detention law since a very long time, the records date back to the
colonial period. The British rulers passed eleven laws carrying the intrinsic essence of
preventive detention law, this included Rowlatt Act of 1919. Political dissenters were put
behind even if a hint of ‘protest’ came to the authority’s knowledge.2
Not only Rowlatt Act, 1919 there were several other laws like Bengal State Prisoners
Regulation III, 1818, Government of India Act, 1919 which dealt with preventive detention
but were repealed as it was found violative and was misused in large scale.
Even after long struggles of our fore fathers preventive detention laws still exist in the
country and are often challenged in the court as it violates human rights. The only positive
point of preventive detention is on the lines of ‘Prevention is better than cure’. Article 22 of
the Constitution of India talks about the provisions and safeguards given to the person who
are detained under any kind of such laws.

OBJECTIVES
1
Ankul Chandra Pradhan v. Union of India, AIR 1997, SC 2814
2
Preventive Detention - https://indianlawportal.co.in/preventive-detention
2
The objective of this research work is to derive a fact that whether preventive detention in its
present form is beneficial to the society as a whole or not. As we get in to finer points of this
law, we will understand small details. The researcher has also compared the existence of
these law in various countries across the world. Further the researcher has provided its view
points on these laws and also provided various case laws. The research also contains various
provisions and safeguards given in Constitution of India regarding preventive detention laws.

RESEARCH METHODOLOGY

3
The researcher has used doctrinal research method for collecting the data and used secondary
sources of data for collecting information.

CONSTITUTIONAL PROVISION OF PREVENTIVE DETENTION

4
Article 22 provides protection against arbitrary arrest and detention. Article 22 consists of 7
clauses. Clauses 1 and 2 talks about the protection against punitive detention and clauses 4 to
7 provides the safeguards against the preventive detention.
The punitive detention or arrest can be made under ordinary laws and the preventive
detention only can be made under preventive detention laws only. We will lay emphasis only
on clauses 4 to 7 as it talks about the safeguards against the arbitrariness of preventive
detention. These clauses are as follows: -
Clause 1. No person who is arrested shall be detained in custody without being informed, as
soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and
to be defended by, a legal practitioner of his choice.
Explanation - This clause states that a person who is arrested for any offense has
(a) The right to be informed as soon as may be of ground of arrest.
(b) The right to consult and be represented by a lawyer of his own choice.
Clause 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.
Explanation - This clause states that a person who is arrested for any offense has
(a) The right to be produced before a Magistrate within 24 hours,
(b) The freedom from detention beyond the said period except by the order of the
Magistrate.

In the case of Hussainara Khatoon v. Home secretary, State of Bihar3, the supreme court held
that if the accused person is not able to afford or appoint a legal practitioner then, he has this
constitutional right to demand a legal practitioner from the state.

Clause 3. Nothing in clauses (1) and (2) shall apply— (a) to any person who for the time
being is an enemy alien; or (b) to any person who is arrested or detained under any law
providing for preventive detention.
Explanation: -
This clause is an exceptional clause which has two exceptions to the rule contained in clauses

(1) and (2). It provides that the rights given to the arrested person under clauses (1) and (2)
are not available to the following persons: (1) an enemy alien, (2) a person arrested and
detained under a preventive detention law.

3
AIR 1369 (SC)

5
Clause 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:

Provided that nothing in this sub-clause shall authorise the detention of any person
beyond the maximum period prescribed by any law made by Parliament under sub-
clause (b) of clause (7); or

(b) such person is detained in accordance with the provisions of any law made by
Parliament under sub-clauses (a) and (b) of clause (7).
Explanation :-
This clause gives the first safeguard against the preventive detention, which states that the
detenu cannot be detained more than three months until and unless the advisory board
finds fit for extending the period of three months. But the maximum time that the
advisory board can extend depends upon the time prescribed in that particular preventive
detention act in which the detenu has been detained which is passed by the parliament.
Article 22(7) should also be explained with Article 22(4) which states that the Parliament
may provide the circumstances, class or classes in which the detenu is detained more than
three months under any preventive detention law. Clause 7 of the article 22 contained an
exception to clause 4, which empowers the parliament to enact a law and provide for
detention for more than three months without any opinion from the advisory board. The
Parliament may also prescribe the procedure which is to be followed by an Advisory
Board in an enquiry under sub-clause (a) of clause (4). This clause clearly states that there
is no need of Parliament to consult Advisory Board.
The functions of Advisory board were stated in the case of Tarun Kumar Das and Ors. v.
State of Assam and Ors.4 Which are as follows: -
1) To consider the material placed before it,
2) To call for further information, if deemed necessary,
3) To hear the detenu, if he desires to be heard and
4) To submit a report in writing within seven weeks from the date of detention of the
detenu to the appropriate Government as to whether there is sufficient cause for
"such, detention" or whether the detention is at all justified.

4
1982 CriLJ 1054
6
Clause 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.
Explanation: -
This is the second clause that provides the following safeguards to the detenu are same
safeguards to the person under punitive detention
(a) Right to be informed the grounds as soon as may be in which the person has been
detained.
(b) Right of legal representation against the order.
In Mohammad Yousuf v. State of Jammu & Kashmir5, it was held that the if the grounds
provided are vague or irrelevant to the object of legislation, the right of detenu under clause 5
is violated. A ground is said to be irrelevant when it has no connection with the satisfaction of
detaining authority. The inclusion of any irrelevant or non-existing ground with other
relevant ground will be infringement of the right of the detenu.
In Lallubhai Jogibhai Patel v. Union of India6, The detenu did not Know but the grounds of
detention were drawn in English and the detain order stated that the police inspector while
serving the grounds of detention would fully explain the grounds in Gujrati to the detenu but
no translation of the grounds of detention into Gujrati was given to the detenu. It was held
that there was no sufficient compliance of article (5), and hence the order of detention was
invalid.
Clause 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.
Explanation: -
This is an exceptional clause of clause 5 which states that if the information or grounds given
to the detenu is against the public interest than the authority is not required to provide such
information.
Clause 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)].

5
AIR 1979 SC 1925
6
(1981) 2 SCC 427

7
This clause is been defined above with Article 22(4).
Note: The 44th Amendment Act of 1978 has reduced the period of detention without
obtaining the opinion of an advisory board from three to two months. However, this provision
has not yet been brought into force, hence, the original period of three months still continues.
In the case of Abdul Karim v. State of West Bengal, 19697, the Supreme Court held that
that Article 22 prescribes the minimum procedure that must be included in any law permitting
preventive detention and if such requirements are not observed, the detention infringes the
fundamental right of the detenu guaranteed under Articles 21 and 22 of the Constitution. It
has been further held that all the procedural requirements of Article 22 are mandatory in
character and even if one of the procedural requirements is not complied with the order of
detention would be rendered illegal.

Who can make the preventive detention law and what grounds can preventive detention
laws be made?
Preventive detention statues are enacted in India either by Parliament or by a state legislature.
Parliament has the exclusive right under List I in the 7 th Schedule of the Constitution, to enact
preventive detention laws for reasons connected with defence, foreign affairs or the security
of India and the state has the power to enact preventive detention law under List III of the 7 th
schedule for reasons connected with the security of the state, the maintenance of the public
order, or the maintenance of supplies and essential services to the community. But the must
confirm with Article 22 of the Constitution of India.8

7
1969 AIR 1028
8
Harding, Andrew; Hatchard, John (1993). Preventive Detention and Security Law: A
comparative Survey. Martinus Nijhoff Publishers.
8
 PREVENTIVE DETENTION LAWS IN INDIA

Some Repealed Preventive Detention Statutes: -

Preventive Detention Act, 1950 – This was the first preventive detention law in India, but it
was repealed in 1969.
In 1950 itself, a Prevention Detention Act was piloted by Sardar Patel, who said that he had
several '"sleepless nights'" before he could decide that it was necessary to introduce such a
Bill.9
The validity of the Preventive Detention Act, 1950 was challenged before the court in the
case of AK Gopalan vs The State of Madras 10 where it was apparent that freedom of an
individual does not qualify as provided under Article 21. The Supreme Court, having taken a
limited view of Articles 21 and 22, refused to entertain whether there were any inadequacies
in the procedure provided by law. It was of the faith that each constitutional article was
autonomous of each other. When the petitioner questioned the validity of his detention on the
grounds that it violated his rights pursuant to Articles 19 and 21 of the Indian Constitution,
the Supreme Court disregarded all the arguments that the detention could be justified merely
on the ground that it was conducted in accordance with the ‘legally established procedure.’
In the case of Maneka Gandhi v Union of India 11, the Apex court held that the procedure for
Article 21 has to be just, fair and reasonable and also should be in accordance with the
principles of equality and freedom under Article 13 and 19 of the Indian Constitution, thus
the provisions of fundamental rights were established to be read together.

Maintenance of Internal Security Act, 1971 (MISA) – This was the second preventive
detention law which gave the right to the states to detain and arrest citizens for one year
without any trial or judicial process being conducted. It was implemented by the government
to curb down the dissent of the political opponents during the period of emergency. Later on,
repealed in 1978.
Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985 - The Terrorist and
Disruptive Activities (Prevention) Act, 1987, was at one time the main law used in cases of
terrorism and organised crime, but due to rampant misuse, it was allowed to lapse in 1995.
The Act defined a “terrorist act” and “disruptive activities”, put restrictions on the grant of
bail, and gave enhanced power to detain suspects and attach properties. The law made a
confession before a police officer admissible as evidence. Separate courts were set up to
hear cases filed under TADA.12

9
https://criminallawstudiesnluj.wordpress.com/2021/02/19/preventive-detention-anarchical-
law/
10
AIR 1950 SC 27
11
AIR 1978 SC 597
12
‘TADA to UAPA, what India’s terror laws say’ by Rahul Tripathi published on August 30,
2018 3:08:10 am on the Indian Express.

9
The Prevention of Terrorism Act, 2002 (POTA) - In wake of the 1999 IC-814 hijack and
2001 Parliament attack, there was a clamour for a more stringent anti-terror law, which
came in the form of The Prevention of Terrorism Act (POTA), 2002. A suspect could be
detained for up to 180 days by a special court. The law made fundraising for the purpose of
terrorism a “terrorist act”. A separate chapter to deal with terrorist organisations was
included. The Union government could add or remove any organisation from the schedule.
However, reports of gross misuse of the Act by some state governments led to its repeal in
200413

Some Existing Preventive Detention Statutes: -

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
(COFESOPA) - It was passed during the administration of Indira Gandhi, trying to retain
foreign currency and prevent smuggling. It was an economic adjunct to the
controversial Maintenance of Internal Security Act (MISA) which was enacted in 1971.
Though MISA was repealed in 1978, this law is still in force.
National Security Act, 1982 (NSA) – The National Security Act was promulgated on
September 23, 1980, during the Indira Gandhi government providing preventive detention of
persons are threat to national security or the law and order.
In the case of A.K. Roy v. Union of India 14, the constitutional validity of NSA was challenged
as it was against the person liberty, the argument was rejected by the courts, it did, however
streamlined certain ways which has to be followed when the person is under any preventive
detention law: -
1) That immediately after detention, his kith and kin must be informed in writing about
his detention and his place of detention.

2) The detenu must be detained in a place where he habitually resides unless exceptional
circumstances require detention at some other place.

3) That detenu is entitled to his book and writing materials, his own food visits of friends
and relatives

4) He must be kept separate from those convicted

5) No treatment of punitive character should be meted out to him and he should be

treated according to the civilised norms of human dignity.

Why does NSA Act matter?

Article 22 (1) of the Indian Constitution says an arrested person cannot be denied the right to
consult, and to be defended by, a legal practitioner of his choice. According to Section 50 of
the Criminal Procedure Code (CRPC), any person arrested has to be informed of the grounds

13
‘TADA to UAPA, what India’s terror laws say’ by Rahul Tripathi published on August 30,
2018 3:08:10 am on the Indian Express.
14
AIR 1982 SC 710
10
of arrest and has the right to bail. However, under National Security Act, none of these rights
are available to the person detained. The government holds the right to conceal information
which it considers to be against public interest to disclose. The detained person is not entitled
to any legal aid.

Moreover, the National Crime Records Bureau (NCRB), which collects crime data in India,
does not include cases under the NSA as no FIRs are registered.15

In the case of A.K. Roy vs Union of India16. the Hon’ble Supreme Court stated that: -
"We must therefore hold, regretfully though, that the detenu has no right to appear
through a legal practitioner in the proceedings before the Advisory Board. It is, however,
necessary to add an important caveat. The reason behind the provisions contained in
Article 22(3)(b) of the Constitution clearly is that a legal practitioner should not be
permitted to appear before the Advisory Board for any party. The Constitution does not
contemplate that the detaining authority or the Government should have the facility of
appearing before the Advisory Board with the aid of a legal practitioner but that the said
facility should be denied to the detenu. In any case, that is not what the Constitution says
and it would be wholly inappropriate to read any such meaning into the provisions of
Article 22. Permitting the detaining authority or the Government to appear before the
Advisory Board with the aid of a legal practitioner or a legal adviser would be in breach
of Article 14, if a similar facility is denied to the detenu. We must therefore make it clear
that if the detaining authority or the Government takes the aid of a legal practitioner or a
legal adviser before the Advisory Board, the detenu must be allowed the facility of
appearing before the Board through a legal practitioner."
Unlawful Activities (Prevention) Act (UAPA) - The original Unlawful Activities
Prevention Act was passed in the year 1967, it used to charge the accused in addition to the
criminal law. So, when POTA was repealed, it was amended in 2004, then in 2008, 2012 and
then the most recent amendment bill was introduced in 2019. It allowed the Government to
declare a person as a terrorist if it is satisfied, that such a person is involved and supporting
any of the terrorist activities. It does not mention the definition of terrorist but does define
terrorist activities. Confessions in front of Police were not judicially admissible. But Section
46 allowed the admission of the evidence collected through any sort of communication such
as oral, telephonic or wireless.

‘It also empowered the Director-General, National Investigation Agency (NIA), in order to
allow them to grant approval of seizure or attachment of the concerned property when the
case is being investigated. After the UAPA was amended, Masood Azhar, the one responsible
for the Pulwama as well as the 2001 parliament attack, and Hafiz Saeed, the mastermind of
the 2008 Mumbai terror attacks, were the first two to be labelled as global terrorists. 17

15
National Securities Act -https://www.business-standard.com/about/what-is-national-
security-act-nsa
16
AIR 1982 SC 710
17
Most famous cases of UAPA - https://blog.ipleaders.in/famous-cases-terrorist-disruptive-
activities-prevention-act/
11
 SOME PREVENTIVE DETENTIONS IN RECENT TIMES

Jammu and Kashmir Public Safety Act, 1978, is one of the most frequently invoked
legislation containing the provision of preventive detention law. Since the abrogation of
article 370 from Jammu and Kashmir, there have been 450 preventive detention in the
erstwhile state, according to the central government data. Among these detainees are some of
the very prominent leaders and ex-CMs of the erstwhile state like Farooq Abdullah, Omar
Abdullah, and Mehbooba Mufti. All of them were released after almost 1 year or more.
Farooq Abdullah, a veteran politician and ex-CM of Jammu and Kashmir said that he is freed
but his freedom is not complete until everyone under preventive detention is freed. He further
said that these detentions have nothing to do with the security of the nation; the government
has slapped these laws to curb the opposition voices.

The Citizenship (Amendment) Act, 2019 (CAA) is an act that was passed in the Parliament
on December 11, 2019. The 2019 CAA amended the Citizenship Act of 1955 allowing Indian
citizenship for Hindu, Sikh, Buddhist, Jain, Parsi, and Christian religious minorities who fled
from the neighbouring Muslim majority countries of Pakistan, Bangladesh and Afghanistan
before December 2014 due to "religious persecution or fear of religious persecution".
However, the Act excludes Muslims. Under CAA mass protests were taking place in which
More than 1,100 people are under arrest and 5,558 kept in preventive detention for the anti-
citizen protests.18

Over a hundred people were put under preventive detention in Arunachal Pradesh on Friday
over a 36-hour strike called by the All Nyishi Youth Association (ANYA), a major tribal
youth group of the state, seeking Chief Minister Pema Khandu’s resignation. 19 The ANYA,
alleged that the chief minister is involved in 2,000 crore scam. Whereas, the president of the
ANYA Byabang Joram claimed that We didn’t do anything wrong. We aren’t criminals. Our
boys, who didn’t join the strike, were picked up from their homes, their house owners and
relatives were arrested,”

PREVENTIVE DETENTION LAWS IN DIFFERENT COUNTRIES

18
https://economictimes.indiatimes.com/news/politics-and-nation/anti-caa-protests-1113-
arrests-5558-preventive-detentions-19-dead-in-up/articleshow/72980282.cms?from=mdr
19
https://indianexpress.com/article/north-east-india/arunachal-pradesh/arunachal-pradesh-
agitators-preventive-detention-bandh-cm-ouster-7722865/
12
USA – Bail Reforms Act, 1984 talks about the procedure set for release or detain individuals
by the judicial officer if govt. by showing evidence that this has committed serious felonies or
not. In the case of United States V. Salerno, constitutional validity of Bail Reforms Act, 1984
and 5th Amendment of Due Process was challenged when members of American mafia were
arrested. By 6:3 ratio, Supreme Court held that the Act was constitutional because the
government’ act of protecting community outweighs personal liberty of individuals only in
cases when government able to prove that the arrestee posed significant threat to the
community.
In response to the terrorist attacks of 9/11, in October of 2001 on World Trade Centre the
Bush Administration launched the “War on Terror,” an attempt to eliminate all terrorist
threats to the United States. As part of this war, the Bush Administration began detaining
individuals it believed were linked to terrorism. Instead of capturing these individuals giving
them a trial to determine whether they were guilty or innocent, and either sentencing them or
releasing them, the Bush Administration detained these individuals at Guantanamo. They
were held without due process and without access to federal courts. The Bush Administration
repeatedly claimed that it was within the rights of the President, as the Chief Commander
during times of war, to dispose of due process rights and detain individuals for undetermined
periods of time. 20.
Germany – Germany detains terrorism suspects exclusively under regular criminal
procedures. Pre charge detention may extend up to 48 hours, at which point the civil section
of the lower court reviews the detention and a criminal charge must be entered. Judicial
review of ongoing pretrial detention occurs every six months. The lower court’s decision can
be appealed to the distinct civil court and then to regional civil court. Access to counsel is
provided at all stages of detention.21

Spain - Under Spain’s criminal code, detainees suspected of terrorist activity may be held in
pre charge incommunicado detention for up to 13 days. An investigating magistrate of the
National High Court must review the grounds for pre-charge detention within 72 hours.77
The magistrate may order an additional 48 hours of incommunicado detention in police
custody. A 2003 amendment provides that a court may impose up to an additional eight days
of incommunicado pre-trial detention for persons suspected of membership in an armed
group or conspiracy with two or more persons.78 The magistrate may extend the initial
period of incommunicado detention, up to a total 13 days. If an incommunicado order is
issued, a duty solicitor is appointed, not a lawyer of the detainee’s choice.22

CONCLUSION

20
Michelle Cubellis - Guantanamo Bay Just Preventative Detention of Terrorist or a
Fundamental Violation of Due Process?
21
Michael Pösl and Andreas Dürr* - Germany’s System of Preventive Detention Considered
Through the European Court of Human Rights and the German Federal Constitutional Court
22
Being under arrest in Spain - https://www.spainlawyer.com/legal-guide/being-under-arrest-
in-spain-other-precautionary-measures/
13
14