Understanding the true scope of Preventive Detention



The Indian Constitution, just as other constitutions of the world, provides certain rights to the Indian citizens regarding their freedom, to protect themselves and their property, to put forward their opinions and views on and matter etc. at times, the individual liberty crosses the limits and threatens the very existence of the State and at that point of time it fails to control the enjoyment of individual’s liberty. The framers of the Constitution were aware of the fact that these freedoms can be used by the individuals in an unlawful manner, to achieve their selfish interests and sometimes even to cause harm to others. Hence, certain clauses which mainly aimed at preventing such a situation were inserted in the Constitution. These clauses act as limits that limit the application of those rights in a very law full in order that one’s actions don’t hurt others. The law of Preventive Detention is one of such preventive measures which acts as a restriction on the unlawful use of the freedoms provided under the Constitution.

The Black Law wordbook describes Preventive Detention as confinement usually obligatory on a suspect in a criminal case who has threatened to violate the law whereas awaiting trial or disposition or of an unstable one who might hurt himself or others. Hon’ble Supreme Court of India has defined this term as an anticipatory measure and has stated that it does not relate to an offense while criminal proceedings are to penalize an individual for an offense committed by him.

In the pre-independence era, preventive detention was used by the British regime as a tool to establish a strong foothold in India. when independence, the laws concerning Preventive Detention were enacted by the provincial legislatures, and also the hopes of the liberty fighters were shattered once this live was right away place into force when the commencement of Indian Constitution at the central level. The Preventive Detention Act, 1950 was altered thrice, aiming to provide increased protection to the person detained under the Act. The Act enacted in the year 1950 came to an end in the year 1969 but sadly after that, no vacuum was created in this area. Presently, the Constitution confers on the Parliament the ability to create law with relevancy preventive detention for the explanations connected with defence, foreign affairs, or national security and also the persons subjected to such detention, by the virtue of Entry 9 of List I. these are the grounds upon that the terribly existence of the state is based and therefore giving Parliament exclusive authority during this regard will be aforesaid to be justified. An analogous reasonably authority was provided to the Federal Legislature assembly by the Government of India Act, 1935.

Further, Entry 3 of List II provides concurrent power on Parliament and the state legislatures to make laws relating to preventive detention in respect of the security of the State, maintenance of public order or maintenance of supplies and services essential to the community and persons subjected to such detention. It is not out of the place to mention here that this sometimes causes tension between the central and state legislatures because the provinces and states might not pass such a law suit wherever their rights and liberty and interests are to be sacrificed. There was a difficult situation in the country just before the commencement of Constitution, and there were diverse preventive detention laws passed by the provincial legislatures as the Government of India Act of 1935 additionallyprovided power to the provincial legislatures on preventive detention concerning maintenance of public order. Thankfully, the current Constitution is an improvement of the 1935 Act and does not give any such exclusive power to state legislatures in this connection.

There is no doubt that as per the present Indian legal system, the preventive detention is the most contentious part of the fundamental rights and “if a person is arrested or in remission or detained below a law providing for preventive detention, then the protection against arrest and detention below Article 22(1) and (2) shall not be available”. “The object of Preventive Detention is not to punish but to intercept to prevent the Detent from doing something prejudicial to the State. The satisfaction of the involved authority may be a subjective satisfaction in such a manner”.

A layman often confuses the concept of preventive detention with that of punitive detention. There’s continuously have to becompelled to fastidiously distinguish the two ideas. Preventive detention is used as a measure of a crime that is likely to happen, but the punitive detention is punishment for illegal acts already committed. Hence, the basic distinction is that Preventive Detention is taken on the grounds of suspicion that some wrong act may be done by the person concerned.

Grounds of preventive detention

Article 22 provides safeguards relating to preventive detention under clauses (4) to (7). Preventive detention is resorted to in the following circumstances:

Security of state
Maintenance of public order
Maintenance of supplies and essential services and defense
Foreign affairs or security of India

These grounds seem alike from the perspective of a layman’s understanding as for an ordinary person; it is not easy to differentiate between these terms. A lay man cannot distinguish between the safety of state and maintenance of public order or law and order. All these terms appear synonymous to a normalcitizen of India. Thus judiciary’s role holds a prominent position while differentiating these concepts.

As regards to the ground of maintenance of public order is concerned, the judiciary has placed the cases of injuring an individual with knife, causing assault to one individual and inflicting grievous injury to his right leg, causing undue harassment to respectable young ladies, shouting slogans like ‘Naxalites Zindabad,’ ‘Long Live Revolution’ and ‘Mao TseTung Zindabad’ etc. the important point to be noticed here is that these grounds lack any direct relation to the maintenance of public order, and still they have been dealt by applying the law of preventive detention. Commenting on the foremost debated distinction between ‘security of the state,’ ‘public order’ and ‘law and order,’ Judge Hidayatullah explicit that security of the state could be a narrower thought and public order. State security forms the part of the in group and so comes the general public order. The outer circle consists of law and order. This distinction holds an eminent position in the law, but the demarcating line gets blurred when it comes to some cases such as; when a person commits assault or murder of another person. Like  case is principally involved with the matter of maintaining law and order however but it adopts a communal part once committed during a public place, resulting in chaos within the society and disturbances in the community. When this happens, the case comes under the purview of maintenance of public order. This overlapping, arising out of such circumstances gives the executive a free hand in controlling the law and order problem in the name of maintenance of public order by extra-ordinary measures. Under such situations, it may be suggested that maintenance of public order should be scrapped as a ground of preventive detention just as in England, The United States of America, Australia, and Pakistan.

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When it comes to the security of a state, it is vulnerable to be threatened by war, external aggression or internal disturbance. This it ultimately affects the security of the country. And thus, it’s coated singly in List III, Entry 3. This read is additionally backed by judicial seelection wherever persons were detained on the bottom of security of a state. Now when we talk about maintenance of supplies and services essential to the community as a ground of preventive detention, the view of the judiciary is that it could be covered under the ground of defense of the country and hence, the defense power of the Parliament can be extended to control it.

The Question Arises:

On a study of the laws of Preventive Detention in India, it can be seen that all the grounds mentioned above are included in single legislation. The question therefore arises is that however way far is it justified?  These grounds are covered by a single legislation by the virtue of The Preventive Detention Act, 1950 and the Maintenance of Internal Security Act, 1971, which directly provides that the chief with a wider vary of the ability to implement this extraordinary live. Within the case of government action effecting preventive detention on two grounds, Hon’ble Supreme Court of India quashed the detention order on the bottom that within the light of detention on two divisional grounds the authority creating the detention order don’t apply its mind that was needed by the Act. In cases of preventive detention, the foremost valuable right of an individual i.e. the right of personal liberty is at stake and thus there arises a need for the legislature to carefully and scrupulously enact a law relating to preventive detention.

Extended Scope:

The original law has an endeavor to hide all possible cases that would arise. However with time, each assembly and govtextended the scope of preventive detention as a live against unlawful activities. For instance, to curb the smuggling activities and to protect foreign exchange, the Parliament passes the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The Act aimed at ensuring the security of state but the activities covered by the Act cannot be said to have a direct and immediate effect on the security of the state. The scope of Preventive Detention was also extended to control social boycott and excommunication, price control etc. howeverthe judiciary expressed its views against the chief action of trying to regulate food adulteration through preventive detention with an aim to keep up provides and services essential to the community. There have been even suggestions to implement preventive detention laws for the prohibition of untouchability, evasion of taxes, etc. But such socio-economic issues ought not to be dealt with by using this extraordinary measure merely because the State failed in solving a problem.

Rights of Detente and Grounds

As the measure of preventive detention severely affects the social and personal situations of the detent, certain rights have been given to the person detained under this law so as to prevent infringement of his/her fundamental rights. Article 22(5) can be understood in two parts. First is that the detaining authority has to communicate to the detained person on what grounds he has been detained. Secondly, it is the obligation of the detaining authority to ensure that the detained person is afforded the earliest opportunity of making a representation against the order of detention.

Disclosure of the Grounds of Detention to Court

The laws order down underneath the Preventive Detention Act, 1950 by the virtue of Section 14 were terribly powerfully retaliated within the matter of Gopalan vs. State of Madras .On the ground that it infringed all the principles of natural justice and also the rights provided by Article 22(5) of the Constitution. It was held by the Court that such a provision was allowed to stand as it could lead to a situation where there would be no material before the Court to determine whether the detention was legal or not, irrespective of the fact that whether the impugned grounds were sufficient or not.

Relevant Ground

For a ground to be a relevant one, it must have a rational connection with the object which is to be ultimately prevented from happening. For example, within the case of PuranlalLakhanpal vs. Union of Indiathe aim of the appellant’s detention was to prevent him from acting during a manner prejudicious to (i) the safety of India and (ii) her relations with foreign powers. The ground in the question was that the appellant had addressed a press conference that was attended by a large body of correspondents of the press of various foreign countries and making a speech that contained several false statements about the conditions of the people of Kashmir. Such a ground was considered relevant and to have a rational connection to prevent the activities prejudicial to the security of the country and foreign relations.

Vague Ground

While delivering judgment in the case of State of Bombay vs. Atma Ram, The Apex Court commented on the term ‘vague’ and stated that it can be considered as the antonym of ‘definite.’If the supplied ground is incapable of being comprehended and understood or defined with sufficient certainty, it can be called vague.

In Ram Krishan vs. the State of Delhi, the Court dominated that a common person who isn’t fully fledged within the interpretation of documents might hardly be expected, while notlegal aid, to interpret the grounds in the proper sense. Hence, it’s the responsibility of the detaining authority to create his meaning clear beyond doubt. If this is not done and the situation is handled otherwise, such grounds would lead to a violation of fundamental rights and freedom of the person so detained and thus they will be vague.


To sum up the circumstances around the Preventive Detention laws of the country, it can be said that definitely the intentions of enacting such a law is to prevent the anti-social parts from inflicting hindrances within the society which could cause to harmful effects on lives of citizens, however these laws need to be applied with utmost care and precaution so as to avoid any controversy. These laws directly affect the fundamental rights and freedoms of people who are guaranteed by the primary source of law in India i.e. the Constitution of India and the complexities arising out of the irresponsible implementation of these laws can consume a lot of time of the judiciary and life of the person so detained.


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