Preventive Detention in India – Constitutional Dilemma and the “Pre-Crime” Paradox

09 Oct 2025 GS 2 Polity

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#Thehindu Editorial

1. Context

Preventive detention in India represents a “pre-crime” framework — a system that punishes individuals for anticipated future conduct rather than proven offences.
The Editorial highlights that this unchecked mechanism poses a serious threat to fundamental rights, especially liberty and due process.
Despite repeated judicial cautions, preventive detention continues to expand beyond its intended constitutional limits.

2. Constitutional Basis: Article 22 (3)–(7)

These clauses permit preventive detention, making India one of the few democracies to constitutionalise such power.
They allow detention without trial, for periods defined by Parliament or State laws.
Articles 22(3)–(7) have been described by scholars as the “Bermuda Triangle” of the Indian Constitution
→ where fundamental rights such as liberty, equality, and due process vanish.

3. Judicial Context and Recent Developments

(a) Dhanya M. vs State of Kerala (2025 INSC 809)

Supreme Court struck down a detention order under the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA).
Key Observations:
- Preventive detention is an extraordinary power, to be used sparingly.
- Clear distinction between “public order” and “law and order”.
- Cannot be used to bypass criminal prosecution or circumvent bail orders.

(b) S.K. Nazneen vs State of Telangana (2023)

Preventive detention is an exception to Article 21 and must be treated as such — to be invoked only in rare circumstances.

4. Historical Evolution

Phase	Key Development	Significance
Colonial Era (1818–1947)	Bengal Regulations of 1818; Government of India Act, 1935 empowered preventive detention for “public order”	Tool for colonial control, later inherited by independent India
Constituent Assembly (1946–49)	Fierce debate; justified due to communal violence & political unrest	Somnath Lahiri called it a “Police-Constable Constitution”
Post-Independence	Preventive Detention Act, 1950	Revalidated colonial mechanism within constitutional framework

5. Key Judicial Precedents and Doctrinal Developments

Case	Year	Key Holding / Principle
A.K. Gopalan vs State of Madras	1950	Court upheld preventive detention; Article 21 (“procedure established by law”) interpreted narrowly; Preventive detention tested only under Art. 22, not 14 or 19
Maneka Gandhi vs Union of India	1978	Expanded “procedure established by law” → must be fair, just, and reasonable; established Golden Triangle (Arts. 14, 19, 21)
A.K. Roy vs Union of India	1982	Retreated from Maneka Gandhi; held preventive detention not subject to Art. 14, 19, or proportionality test
Dhanya M. vs State of Kerala	2025	Reaffirmed preventive detention as exceptional and constitutionally limited

6. The “Golden Triangle” vs. the “Bermuda Triangle”

Golden Triangle	Bermuda Triangle
Articles 14, 19, 21	Articles 22(3)–(7)
Protect liberty, equality, and due process	Permit preventive detention without trial
Fair, just, and reasonable law	Allows subjective satisfaction of the executive
Symbol of constitutionalism	Symbol of executive overreach and colonial legacy

7. Preventive Detention and the “Pre-Crime” Analogy

India’s preventive detention:
- Presumption of guilt without trial.
- No opportunity to be heard (audi alteram partem).
- “Subjective satisfaction” replaces judicial scrutiny.
- Perceptions and probabilities replace proof and procedure.
The detaining authority functions like a Precog — relying on prediction, not evidence.

8. Critical Analysis

Component	Concerns
Colonial Legacy	Retained mechanisms originally designed for suppression, not democracy
Judicial Inconsistency	Oscillation between liberty protection (Maneka Gandhi) and executive deference (A.K. Roy)
Overreach of State Power	Used as administrative shortcut, not only for terrorism but also routine offences
Weak Safeguards	Advisory Boards rarely act as effective checks
Erosion of Rule of Law	Violates presumption of innocence, right to fair trial, proportionality, and natural justice

9. Scholarly Perspectives

Scholar / Thinker	View
Gautam Bhatia (The Indian Constitution: A Conversation with Power)	Article 22 is Janus-faced - simultaneously incorporates and excludes due process
Granville Austin (Working a Democratic Constitution, 1999)	Preventive detention’s “seductive charm” makes it a crutch that breeds injustice and weakens investigative capacity
Somnath Lahiri (Constituent Assembly)	Warned it would create a “Police-Constable Constitution”

The Way Forward

Constitutional Re-examination:
- Revisit A.K. Gopalan and A.K. Roy in light of Maneka Gandhi.
- Harmonise Article 22 with Articles 14, 19, and 21.
Restrict Application:
- Limit preventive detention strictly to extraordinary threats — terrorism, transnational crime, or drug cartels.
- Not to be used for ordinary law and order issues.
Procedural Reforms:
- Mandatory periodic judicial review of detention orders.
- Burden of proof to justify detention should lie on the State.
- Strengthen advisory board independence.
Institutional Accountability:
- Establish oversight by NHRC / State Human Rights Commissions.
- Introduce data transparency on preventive detention usage.
Ethical and Philosophical Renewal:
- Reaffirm constitutional morality — liberty as the default, detention as the last resort.
- Reorient the criminal justice system from control to rights protection.