“No Legislative Act contrary to the Constitution can be valid.”-Alexander Hamilton.


Our Indian Constitution confers fundamental rights to all its citizens. Any affected person or a person on behalf of the affected person can move the appropriate Court with valid jurisdiction to reinforce the infringed fundamental rights guaranteed by the Constitution by way of orders, writs, or direction. These fundamental rights are not absolute. They are subject to certain restrictions as enshrined in the Constitution. It is a known fact that the Constitution guarantees freedom of speech but that does not mean a person can make an inspirational speech provoking citizens to wage a war against the country. He won’t be protected under Article 19(1) (a).

The Parliament enacted the Citizenship Amendment Act on 11December 2019. Many feared the joint effect of both the Citizenship Amendment Act and the National Register of Citizens, as there is an apprehension that the insufficiency of documents would result in the eviction of a Muslim, as he would not be able to claim citizenship under the CAA also. Since there is no clarity in the application of both CAA and NRC, this triggered nationwide protests and riots. Since the protests were gaining momentum in Delhi, the Lieutenant Governor of Delhi to bring peace and public order passed an order conferring the Commissioner of Police the power to detain a person under the National Security Act, 1980. It is one of the preventive detention laws in force in India. The Act will be in force for the next three months in Delhi.

This essay aims at highlighting the preventive detention laws existent in India and decrypt the application of Article 22 of the Indian Constitution. This essay would conclude with an array of arguments on the pros and cons of preventive detention followed by the author’s recommendations.


The history of preventive detention laws dates back to the 1800s. The first-ever detention law that was enacted in India was the Bengal Regulations in the year 1812 and 1818. The Act validated conviction though the trial was not fair. The Court never issued the writ of Habeas Corpus if a case was filed under this regulation. Thus, making it an apt tool for human rights violation.

During World War I, the British used the Indian soldiers for war, the Bengal and Punjab provinces never participated. Fearing an outset of revolt by the Indians, the British enacted the Defence of India Act, 1915. It was enacted on the pretext of being a temporary legislation. The Act allowed local governments to detain a person indefinitely. The trials were unfairly taking place. Despite of the absence of the accused, the evidence from the prosecutors was admitted.

With the lapse of the Defence of India Act, the draconian Rowlatts Act was passed.  This Act suggested the extension of the Defence of India Act for three more years. It gave enormous powers to the Police to detain any person for an indefinite period. The Act snatched the right to know the charge framed and allowed juryless trial of the convicts. This Act was criticized by many freedom fighters.

Later came the Defence of India, Act 1939, which was also notorious like its predecessor. After Independence the Preventive Detention Act, 1950 was enacted. The Constitutional validity of the Act was questioned in the landmark A.K.Gopalan v. State of Madras[i]. The Hon’ble Court severed Section 14 of the Act, which was inconsistent with the Constitution. They ruled that Art. 21 provides no immunity against competent legislative action resulting in upholding the validity of his detention.

Maintenance of Internal Security Act, 1971 also known as MISA was enacted during the tenure of the then Prime Minister Mrs. Indira Gandhi. This Act gave Mrs. Gandhi absolute power during the emergency; from prominent leaders to civilians she detained everybody who dared to go against her. The Act was repealed in the year 1977. For the next three years, there were no laws on preventive detention. In the year 1980, the National Security Act, 1980 was enacted.


Article 22 is one of the fundamental rights. It prohibits the arrest and detention of a person without informing the grounds of such arrest/detention. It guarantees the right to consult a legal practitioner of their choice. It secures the rights of the arrested/detainee by directing them to be produced to the nearest Magistrate within 24 hours. All the protection enshrined in Art.22 is enforceable only “in certain cases”. These rights are not available to an enemy alien and persons who are arrested/detained under the preventive detention laws.

The major purpose of having preventive detention laws is to prevent a person from committing a crime, which is prejudicial to the unity, integrity, and sovereignty of the state. During the Constituent Assembly Debates held on 15th September 1947, eminent personalities including Bakshi Tek Chand raised contentions to the draft of Article 15A( the then Article 22). He stated that no Constitution in the world would allow detention without trial in normal times. He mentioned the Madras Maintenance of Public Order Act, 1947 wherein the Act authorized detention without trial indefinitely.Thus, he mentioned that the clauses do not confer rights but threats to the citizens. The drafting committee contented that the Security of the State is far important than an individual’s freedom.

Art 22(4) allows the detention of a person for three months during normal times and more than three months if an advisory board passes an order extending the term. The extension of the detention period by the advisory board cannot exceed the maximum limit prescribed by the preventive detention laws under which the person was detained. Art. 22(5) states that the authority who passes an order under preventive detention laws must disclose the ground to the detainee. The authorities can choose not to disclose the grounds of detention if it is prejudicial to public interest[ii].


Art. 22(7) conferred the Parliament with powers to make laws prescribing the longest period a person can be detained and the procedure to be followed by the advisory board. This gave rise to several preventive detention laws in India.

  1. National Security Act, 1980:

The Lieutenant Governor of Delhi passed an order on 19 January 2020 conferring the Commissioner of Police the power to detain an individual under NSA. The Central or the State Government must be satisfied that the act of the person is prejudicial to the foreign relations or the security of the state. A foreigner can also be detained under this Act either to secure his presence or to expel him from the Country.[iii]

The Act can be in force for 3 months in the first instance. In circumstances when the Government feels that the situation is likely to prevail, the power to detain will be conferred either to the District Magistrate or to the Commissioner of Police. The authorities can choose not to disclose the ground of arrest if it is prejudicial to the public interest.[iv] The interpretation of the word “public interest” remains a mystery.

An advisory board will be constituted to hear matters pertaining to preventive detention. The authorities will provide “the materials” to the board; the board can choose to either call for further information or continue with the provided materials. The board can also choose to proceed without hearing the detainee.

The Constitution of India the protector of rights validates these preventive detention laws.

This draconian law gave special powers to the army to maintain public order in the ‘disturbed areas. This Act gave the army the power to detain/ encounter any person in pursuance of maintaining public order. The disturbed areas must maintain status quo for 3 months, until then the reign of the army will continue.

The recent amendment to the Act validates an individual to be declared as a terrorist[v]. The Act is silent about on what grounds or what reasons a person can be declared as a terrorist. This Act also allows pre-charge detention to be extended to 108 days. This unfettered power can either curb terrorism or destroy an innocent person’s life.

This 14 sections Act is vague about the inquiry procedure prior to detention. The Act gives a lot of room for procedural lapses. It gives discretion to the advisory board either to proceed with or without the presence of the detainee with the documents produced by the authorities. A trial without principles of natural justice is a fate worse than death.

The authorities can choose not to disclose the grounds of detention to the person if it is against the public interest. Every part of the report would stay confidential except for the opinion of the advisory board. What is the point of knowing the judgment without knowing the facts of the case?

The actions of the Central Government or State Government or authorities done in pursuance of this Act are immune from litigation[vi]. It is appalling to note that, the above-mentioned clauses are almost replicated in all of the preventive detention Acts.


In a country like India where communal riots and protests are common, stringent laws hold an indispensable position. Remarkably, our Country has zero-tolerance towards terrorism, smuggling, and drug trafficking. These vile activities indeed pose a threat to our society. Exemplary punishments would deter potential criminals. These activities are indeed to be prevented before the completion of the crime. Thus, the stand of India in preventing the happening of these crimes by detaining the potential criminal is to be appreciated.


Though Preventive Detention laws are indispensable, they are indeed a threat to the citizens.

  1. “Greater the power, the more dangerous the abuse”

These laws grant unfettered power to the executive giving more room for abuse. It becomes more like a whip of the Government to tame the public according to its whims and fancies.

Art.22 of our Constitution blatantly violates the Covenant. The Covenant guarantees the accused the right to be informed for the reason of arrest/detention[vii] and the right to fair public hearing by an impartial tribunal.[viii] The accused also has the right to consult a counsel, he should be tried in his presence, allowing cross-examination of the witness and giving an interpreter if the accused is not capable of understanding the language of the court[ix].

The UDHR grants equal opportunity to being heard by a fair and impartial tribunal. The Preventive Detention Laws allow the advisory board to proceed either with or without the accused. Thus, Art.22 and the preventive detention laws violate the UDHR.

All the detentions made in pursuance of the above-mentioned Acts are immune from suits. The detainee cannot sue the Central Government, the State Government, or the authorities who acted in pursuance of the Act. Section 16 of the National Security Act, 1980 shields the authorities from litigation and suits.

One of the important principles of Natural Justice is Audi Alteram Partem, which means nobody must be left unheard. It is incorporated in Art.14 of the Constitution wherein it grants equality before the law and equal protection of laws. Notice of charge, opportunity to be legally represented, a fair hearing, opportunity to produce evidence and cross-examine the witnesses is the crux of Audi Alteram Partem. A person arrested under preventive detention is deprived of all the above-mentioned rights.

One of the most controversial aspects of the National Security Act is that no proper records on several of arrests are maintained. Since the Act allows the arrest of the person without an FIR, the National Crimes Record Bureau cannot maintain the official number of detentions. This gives rise to a procedural loophole.


  1. Constitutional Amendment:

The European Court of Human Rights and in 2002 South Asia Human Rights Documentation Centre (SAHRDC) has criticized Art.22 of the Constitution. Art.22 must be amended so that the detainee would get the right to legally represent himself before a tribunal

Laws need to be in consonance with the society. The framers of the Constitution took inspiration from a few of the British legislations, which were, then in force. Hence, those laws along with Art.22 need to be amended. Since the laws validating preventive detention is around 50 years old, it needs to be revised.

The bona fide motive behind the detention is preventing the happening of vile crimes. The act of not disclosing the ground of arrest violates the tenets of international human rights. The detainee must be given a fair opportunity of being heard and proving his cause within a reasonable period then it would be appropriate for the Advisory Court to pass the order. 

The detentions under National Security Act must be recorded so that there will not be any room for abuse by the concerned authority. This would also create accountability for the authorities and this prevents the misuse of the Act.

The Supreme Court in a landmark judgment stripped the privileges conferred by the AFSPA to the army personnel. The Supreme Court in its ruling held irrespective of the fact whether the deceased is a militant or a civilian, the action of the armed personnel will be subjected to judicial scrutiny.[x] Similarly, the cases related to preventive detention must also be subjected to judicial scrutiny to prevent human rights violations.


Since no law that is in abrogation with the Constitution shall stand valid, the preventive detention laws remain unquestioned as it is in consonance with Art. 22. The said article effortlessly breaches the International Covenant on Civil and Political Rights, Universal Declaration of Human Rights and Principles of Natural Justice incorporated in Art.14 of the Constitution. Hence, Art.22 needs to be amended to grant the detainee the right to be represented by a counsel and be heard by an impartial tribunal. Preventive Detention was a tact followed by the British to curb riots andrevolts that threatened their administration, the present Government can choose not to walk in the battered footpath laid down by the British because now India is a Democracy.

[i] A.K. Gopalan v. State of Madras, 1950 AIR 27, 1950 SCR 88

[ii] Constitution of India. Art. 22, cl. 6

[iii] Section 3, National Security Act, 1980 (Act No. 65 of 1980).

[iv] Section 3, National Security Act, 1980 (Act No. 65 of 1980).

[v] Section 35, the Unlawful Activities (Prevention) Amendment Act, 2019, (Act No.28 of 2019).

[vi] Section 14, Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, (Act no. 46 of 1988), (India).

[vii] Article 9, UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171.

[viii] Art. 14(1) UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171.

[ix] [ix] Art 14 (3)(f) UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171.

[x] Extra Judl.Exec.Victim Families… vs Union Of India & Anr on 13 July 201P (CRL.) NO. 129 OF 2012 with WP (C) NO. 445 OF 2012


Rishitha.K, Student of  IV Year BBA LLB ,IFIM Law School, Bengaluru

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