Preventive detention laws have a colonial legacy with a high potential for abuse and misuse, only to be used in rarest of the rare cases: Supreme Court

Even today, numerous preventive detention laws and anti-terror legislations, which allow for arrest without a trial and the denial of anticipatory bail, remain a vital component of India's legal system

Preventive detention laws

On April 10, while setting aside a preventive detention order, the Supreme Court noted that such preventive detention laws in India are a colonial legacy with a high potential for abuse and misuse. The Court emphasized that these laws allowing the state with arbitrary powers must be scrutinized and used only in the rarest of the rare cases.

A Bench of Justice Krishna Murari and Justice V. Ramasubramanian said that, “Every procedural rigidity, must be followed in entirety by the Government in cases of preventive detention, and every lapse in procedure must give rise to a benefit to the case of the detenue. The Courts, in circumstances of preventive detention, are conferred with the duty that has been given the utmost importance by the Constitution, which is the protection of individual and civil liberties.”

This judgment hold true as preventive detention laws in India can be traced back to the early days of colonial rule. The then enactment Bengal State Prisoners Regulation III of 1818 had allowed detention without trial. It was extended by the British to other provinces and eventually took the shape of Defence of India Acts of 1915, justified as World War I measures.

It is important to note here that the numerous preventive detention laws and anti-terror legislations that exist in our country have become a vital component of India’s legal system, despite the fact that they were not intended to be. The state is abusing these laws to limit the personal liberty guaranteed to individuals in the Indian Constitution. Apart from National Security Act, the main law on preventive detention, we have the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act, 1988; the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974; the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980; and the Jammu & Kashmir Public Safety Act, 1978, to name a few. In addition to this, almost every state has a Goondas Act, such as the U.P. Control of Goondas Act, 1970.

The Jammu and Kashmir Public Safety Act, 1978, is one of the most frequently invoked pieces of legislation that includes a provision for preventive detention. According to central government data, there have been 450 preventive detentions in Jammu and Kashmir since the abrogation of Article 370. Among the detainees are some of the state’s most prominent leaders and ex-CMs, including Farooq Abdullah, Omar Abdullah, and Mehbooba Mufti. These detentions have nothing to do with national security; the government enacted these laws to silence opposition voices.

Decades have passed, and instead of moving towards building a system where no state agencies have the power of infringing upon the individual liberty guaranteed to us, we are still stuck at the same position, with laws with vague wording and wide aspects allowing detention with trial and disbarring anticipatory bail.

The Indian courts have repeatedly reminded the state and its agencies that preventive detention laws are not intended to be used as tools of abuse. In June 2022, the Supreme Court had stated that powers under the preventive detention law are “exceptional” and cannot be used on a regular basis because they impinge on an individual’s freedom and liberty. The observation came as the Supreme Court overturned a detention order for two people in Telangana. Because these laws are highly administratively steered and limit the scope of judicial intervention, they sometimes place unrestrained and largely unsupervised power in the hands of the executive without any liability, allowing for grave misuse of such powers.

In November 2022, the Madras High Court had dealt with two writ petitions which were filed to issue a writ of habeas corpus against the detention orders passed by the District Magistrate and quashed the same and had directed the respondents to produce the body or person of the detenus. The division bench of M.S. Ramesh and N. Anand Venkatesh held that the impugned detention orders suffer from infirmity and illegality, thus set aside the same, and directed the respondent to release the detenus and pay them compensation. The Court had also examined the previous Prison Statistics India Report, and observed that Tamil Nadu had occupied an unenviable first place in detaining the maximum number of people under its preventive laws in the entire country, and had said that the inferences drawn can be twofold, either the State is inching towards lawlessness or that the jurisdiction of suspicion has now become a convenient and potent weapon in the hands of the law enforcing agencies to indiscriminately detain people by a conscious abuse of its statutory powers.

The Madras HC had further said that preventive laws have become the favourite hunting ground for the police and an instrument of convenience, whereby common criminals and undesirables are dealt with, on the sure knowledge that once a detention order is passed, such persons are bound to be jailed for at least 3-6 months, pending reference to the Advisory Board or a challenge before this Court by way of a habeas corpus petition.

On April 20, 2023, the Jammu and Kashmir High Court pointed out that the detaining authority had used the expressions “Public Order” and “Security of the State” with an wavering mind and uncertainty when issuing the detention order for Journalist Fahad Shah. A bench of Justice Wasim Sadiq Nargal noted that “public order” and “security of the State” are distinct concepts, though not always separate, and that while every breach of peace may amount to disturbance of law and order, every such breach does not amount to disturbance of public order, and every public disorder may not prejudicially affect “security of the State.”

Concentrating on the mandate of Section 8 of the Public Safety Act, the bench observed that the maintenance of public order and Security and Sovereignty of the country are two distinct expressions with different connotations that are demarcated on the basis of gravity and cannot be used concurrently, proving beyond any doubt that the detaining authority did not apply its mind when passing the order of detention.

The bench then directed for the detention order of journalist Fahad Shah to be quashed. The bench was hearing a Habeas Corpus petition filed by Fahad’s elder brother, who was challenging his detention order, pursuant to which he had been placed under preventive detention in accordance with an order issued by the District Magistrate of Srinagar.

Attention also needs to be given to the time it usually takes to apply for, let alone secure, judicial relief benefits the executive, something which they are fully aware of and take advantage if. Even when such laws are found to be misused, the ultimate goal of keeping the person behind bars for an extended period of time is met, as has been happing since the last 9 years. Even though the Supreme court has consistently stood up to any violation of citizens’ fundamental rights, the fact is that the high backlog of pending cases that is currently overburdening courts means that writ petitions against preventive detention orders take several months to be heard. In many cases, the bail cases mentioned before Supreme Court yield no result and have to be sent back to the lower courts as the judgments passed by them are lacking. As a result, the process becomes the punishment.

Brief Facts of the current case

In November 2021, officers from the Directorate of Revenue in Delhi arrested the appellant and other syndicate members based on an intelligence report about a syndicate of Chinese, Taiwanese, South Korean, and Indian nationals smuggling gold into India.

The DRI sent a proposal to the Joint Secretary (COFEPOSA) in January 2022 to issue an order of detention under the COFEPOSA Act against the appellant, and the detaining authority then passed the detention order in February 2022, and the appellant was arrested by the DRI.

The appellant sent a representation letter to the Central Government and then to the Advisory Board. Following a hearing, the Advisory Board advised the Central Government to reject the representation, which was done after a 60-day delay. The appellant then petitioned the High Court to quash the detention order, but it was dismissed on November 3, 2022.

However, due to the death of his father, the Court released the appellant from custody in January 2023 as interim relief. He was later released from detention because the detention order had expired.

The appellant has filed an appeal with the Supreme Court against the Delhi High Court’s November 3, 2022 judgment wherein the High Court had denied the appellant’s request to vacate the detention order due to a delay in hearing his representation.

Arguments put forth in the current case:

Counsel for the appellant:

The appellant’s counsel contended that, under Article 22(5) of the Indian Constitution, a representation made by the detainee in cases of preventive detention must be considered as soon as possible, and that an excessive delay in considering the representation is grounds for the detention order to be set aside.

The counsel cited the decisions given by the Apex Court in the case sof K.M. Abdulla Kunhi & B.L. Abdul Khader v. Union of India & Ors and Ankit Ashok Jalan v. Union of India & Ors. Judgment, both of which are Constitution Bench judgments, where it has been stated that the Central Government must wait for the decision of the Advisory Board, are in direct contravention with Constitution Bench judgments of this Court in Pankaj Kumar Chakraborty And Ors. v. State of West Bengal and the Jayanarayan Sukul v. State of West Bengal, and due to the apparent conflict, the issue needs to be referred to a Larger Bench.

It was also argued that the documents provided to the appellant herein as grounds for his preventive detention were illegible and in Chinese, and thus the impugned detention order as against the appellant must be quashed on this basis as well.

Contentions of the respondents:

The respondents contended that there was no difference between the Pankaj and the Ashok Jalan cases, as argued by the appellant. They claimed that the appellant’s decisions were made under the Preventive Detention Act, whereas the Ashok Jalan and Abdullah Kuni cases were made under the COFEPOSA Act.


Analysis by the Court

1. Application of preventive detention laws.

According to the Supreme Court, preventive detention laws in India are a colonial legacy with a high potential for abuse and misuse. Laws with the potential to grant the state arbitrary powers must be scrutinized in all circumstances and used only in the most exceptional of circumstances.

The Court also stated that in cases of preventive detention, where a person is detained not for a crime committed but for a perceived risk of committing a crime, courts should always err on the side of caution and give the detainee the benefit of the doubt. Even minor procedural violations should be resolved in the detainee’s favor.

2. Delay in representation

According to the Supreme Court, in cases of COFEPOSA Act preventive detention, the detainee has the right to make representations to the detaining authority, the Government, and the Advisory Board. These representations must be decided as soon as possible, according to Article 22(5) of the Indian Constitution. The detainee is released if the representation is accepted by the government or the detaining officer. If the representation is rejected, the detention period is extended.

The Court found in this case that, while the detaining authority considered the appellant’s representation promptly, the Government took 60 days to consider it. The appellant contended that the delay was fatal to the prosecution’s case and was sufficient reason to vacate the detention order.

The Court held in the Pankaj Kumar Case that the central government must act independently of the Advisory Board and can decide the detenue’s representation without hearing from the Advisory Board.

The Court also cited the case of Abdulla Kunhi, in which the petitioner’s preventive detention under the COFEPOSA Act was challenged on the same grounds. This Court’s Constitution Bench considered the issues of submitting a representation before and after the matter was referred to the Advisory Board, and held that the Government must wait for the Advisory Board’s decision before making its own decision on the representation.

The Court observed that, while the two sets of judgments appear to be in conflict at first glance, a closer examination reveals otherwise.

The Court went on to explain that a detention order can be issued by either the government or a specially empowered officer under the COFEPOSA Act of 1974 and the Preventive Detention Act of 1950. Section 3 of the Preventive Detention Act, on the other hand, requires the empowered officer to seek approval from the Government for continued detention within 12 days of the detention. Only with the approval of the government can the detention be extended. After the initial 12-day period, this approval process effectively transfers power from the empowered officer to the government, making the government the detaining authority. The COFEPOSA Act, on the other hand, does not require such approval from the government, allowing the detaining authority and the government to remain separate and independent, as per the Court.

The Court made it clear that the mandate not to wait for the Advisory Board would only apply to the detaining authority. However, according to the Abdullah Kunhi Case, the Government must wait for the Advisory Board’s decision. There is no conflict between these two judgments because they apply to two separate authorities under the COFEPOSA Act. As a result, the court held that there was no need to refer this point of law to a Larger Bench because it has already been decided.

3. Supply of illegible documents cause prejudice

The Court stated that illegible documents provided to the detainee during preventive detention can jeopardize the detainee’s ability to file a representation. This violates the principles outlined in Article 22(5) of the Indian Constitution, which states that the detaining authority must explain the reasons for detention in a language that the detainee understands. It was determined that in such cases, the relief under Article 22(5) and the statutory provisions are void because the detenue cannot defend himself against an unknown threat.

The Court noted that the High Court had quashed the co-detainee’s detention order on the same grounds of illegible Chinese documents. It was noted that the current appellant’s circumstances were identical to those of the co-detainee. Analyzing the case, the Court had noted that the principle of parity applies in the present case since a co-detainee with identical circumstances had already been granted relief of quashing the detention order against him. In the case of Gian Chand v. Union of India & Anr., the court held that the principle of parity must apply in such cases.


Owing to the analysis provided above, the court set aside the detention order in the current case and concluded that, “This act of protecting civil liberties, is not just the saving of rights of individuals in person and the society at large, but is also an act of preserving our Constitutional ethos, which is a product of a series of struggles against the arbitrary power of the British state.”

The Court held that although the appellant has already been released due to the expiration of the detention period, the detention order must be set aside for the sake of clarity on the point of law. Therefore, the Court allowed the appeal.

The full order can be read here:

According to the preceding order, the right to legal consultation and representation should be viewed not only through a constitutional or statutory lens, but rather as a right that flows from the right to enjoy personal liberty, which is a fundamental human right. It is impossible for a layperson unfamiliar with legal knowledge and with no prior experience of such a situation to understand the reasons for his detention in the complicated world of law, and thus, safeguards had been put in place by our lawmakers. It is necessary to note that countries like United States of America and the United Kingdom are alien to the concept of preventive detention laws. Their criminal justice system works on due process of law. No other nation except India exercises preventive detention during peacetime.

As previously stated, courts have repeatedly held that statutory powers restricting an individual’s personal liberty should be used diligently, with great care, and not on a regular basis. Unfortunately, it appears that this advice has only scratched the surface and is falling on deaf ears, as the government continues to abuse these powerful weapons. Indeed, in many cases, such overarching regulations arose from the colonial State’s desire to suppress collective personal liberties of those in dissent. The fact that the leaders of a post-colonial, democratic polity have not been able to muster the will, or even the resolve, to repeal these laws points to a damaging loop of misuse and abuse. The excruciatingly long time it takes our legal system to dispose of such proceedings, combined with the detainee’s lack of any redressal mechanism other than the filing of writ petitions for quashing of preventive detention orders, ensures that the individual perpetually victimised. As a result, the ultimate goal of the detainee’s political or personal detention is catered to. Preventive detention gives the executive enormous power. Indian history bears witness to its draconian application against people who are accused of conspiring against the state or society. Thus, preventive detentions laws should no longer be viewed as a double edges sword that Indian cannot do away with or a necessary evil that we have to bear, these are colonial laws that serve authoritarian regimes, and must be repealed.



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