The supreme law, our Constitution provides certain fundamental rights to the
citizens of India in order to protect them and succour them to live with freedom
and dignity. One of them is Article 22, the rights embodied in this article are
given to an individual under the circumstances of punitive and preventive
detention, means, providing protection to people against arrest and
The first three clauses that is, neither the person should remain
uninformed about their grounds of arrest nor they should be denied the right to
be represented2, any person who is arrested should be brought forward before the
magistrate within twenty-four hours; No such person shall be detained for more
than twenty-four hours without the magistrate’s permission3 and lastly, the
third clause states exceptions that these rights are inaccessible to enemy
aliens and to those detained under any preventive detention law4.
The first two
clauses allude to punitive detention and the safeguards given in those cases.
Punitive detention is arresting a person after he/she has already committed an
offence. This kind of detention or arrest is done third clause which draws the
most attention by averring that these protections would be inaccessible to those
under preventive detention.
As the name says preventive
, this kind of detention is a preventive measure priorly and habitually done on the basis of an executive authority’s guts or
intuition that a particular person might do something unlawful in the future.
The main object of such detention is to protect the state’s security and to
maintain public order5. Thus, a person who is suspicious in the eyes of the
executives may become a detenu. Doesn’t it sound prejudicial? indeed yes.
action of anticipation taken by the authorities is neither reliable nor
logically and morally correct as it may include their personal hatred or some
other motive. Moreover, in today’s democracy arresting somebody on the basis of
beliefs, thoughts, intuition or just on reasonable probability6 even without
having any evidence that he/ she might do something in the future violates human
rights, a person’s freedom and calls for many heated debates. Contrarily, it may
become beneficial for the country if there’s a serious threat and the grounds
are valid with reliable sources but it is absolutely abuse of power and
violation of liberty if it’s done to suppress somebody’s voice or done with
The clauses four to seven states certain norms for those
detained under any preventive detention law like no Person should be kept under
preventive detention for more than 3 months until and unless the advisory board
says7, the detaining authority must communicate the grounds of such act to the detenu;
The detained person should get a chance to be represented8. Lastly,
power is also prescribed to the parliament in order to allow the extension of
detention period without seeking the advisory board’s opinion in certain class
or classes of cases9. The only thing is that, the country is disquieted with
the terms class or classes of cases as neither the constitution nor the
government defines and classifies them. Moreover, it is not reasonable to guess
which class of act would be dangerous in the future and which not.
Preventive detention though may come out to be a helpful tool to protect the
country but only in the time of some external aggression/ war or some terrorist
activities. Thus, unlike our constitution which allows preventive detention even
in peacetime with no justification, most of the other democracies of the world
stick to applying preventive detention during emergency only10.
The concept of
preventive detention still remains a burdensome part and raises substantial
queries to the liberty of the individual. Thus, accepting these laws was a
journey full of hardship. However, they’re still a part of our constitution even
if it’s an unfit feature. The scope of writing this paper was to analyse and
understand that in the current time where people are becoming more rebellious
and aware of their freedom and equal dignity it’s high time either to bring
certain necessary amendments in the preventive detention laws or scrap them.
History Vs Present
The preventive detention laws were first introduced in 1950 initially for one
year only. But it was extended several times in the form of Maintenance of
internal security act 1971, Unlawful Activities prevention act 1967, National
security Act 1980 and many more11. Since then, India has managed to never be
without preventive detention laws.
These laws were inherited from the colonial
time and they were like dark shadows covering the luminous country India which
believed in equal protection and rights. It is evident that these laws were
fully criticised back then too. Furthermore, The British rulers used preventive
detention laws as a tool to suppress who stood against them and after
independence our governments or even present government continued to use this as
Thus, nothing much has changed. Surprisingly, even in this modern
democracy instead of coming to a solution for the betterment of people, the
government started using these laws more frequently. In recent times over 5558
people were detained in Uttar Pradesh during the CAA protest.12 The number
varied in different states. Not to forget, the most vulnerable phase of
democracy was witnessed by the Kashmiris during the time when article 370 was
held unconstitutional. This incident was very similar to what British rulers did
to our leader by suppressing their voice. The government immorally booked many
political leaders, activists and speakers who they thought would protest
against their decision.
Many eminent leaders, even the chief minister of J&K ‘Mehbooba Mufti’ was
detained by the government.13 Why were such people detained? What harm a chief
minister itself would do to the state? What a strange message would have been
conveyed to the rest of the world. They were detained not because the government
was sure they would spread hatred or provoke violence but because the government
was clearly not open to face criticism and their agitation.
violated their right to freedom of speech and expression. 14 and the government
also made question marks on the notoriety of such people. Not only in Kashmir
but the government has acted as a dictator to keep the voices low and hidden of
the people who stood just to raise their voice and express their views even if
it was through speeches or protest. The government cannot and should not act in
such a way till it is peaceful and does not call for violence or go against the
country’s peace and order.
India being the biggest democracy in the world should not be found internally
drained due to loopholes like these. It is the duty of the government to
maintain the reputation and esteem of the country and to protect the rights and
dignity of the citizens. They should focus on conveying a positive aspect rather
than letting and giving a chance to the international media to fetch that the
government itself is indulged into suppressing the voices of young leaders.
instance, several students like Kanhaiya Kumar, Umar Khalid, Dalit Activist
Chandrashekhar Azad, Dr. Kafeel khan were some in the list of people detained by
the government without even framing charges against them.15 The only thing
common in all the above names is that they were budding leaders and speakers who
took a step forward and represented the youth of the country and believed to
have equal right in expressing their views.
But just like any other time, the
government with the fear of being criticised or as the government says with the
fear of violence did not wait much and ultimately their voices were cracked
down. The Politically motivated detentions cost these young leaders their
precious years of life and confidence.
The bigger picture of muzzling the
voices of such activists and leaders was the authoritative impression of the
government, breaking the faith to speak and leading to more fear in the minds of
thousands of people who placed confidence and trusted the democracy and lastly,
the government playing dirty politics thus, making them lose hope in the
judiciary as well. The detenus are kept as long as the government thinks is
right i.e., even beyond the maximum period of three months.
For e.g., Dalit activist Chandrasekhar Azad who was granted bail by the
honourable supreme court stating that his detention was politically motivated,
but he was further kept into detention for fifteen months under another
preventive detention law just because the government wanted to do things their
way. 16 This is only one out of many instances of the sinful activities of the
executives where they depraved the freedom of the individual by turning
blindsided and inhuman for their own motive.
The impact of such brutality is beyond our imagination. One could bear the pain
if they really committed any wrongful act. Yet abiding with such physical and
mental torture without doing anything and just because the government’s
intuition for the person was not right is such a heavy trauma to experience and
carry for rest of the life. Furthermore, it ruins the reputation of the
individual arrested and leaves them in the vicious cycle of fear and future
uncertainty. Imagine living in these conditions, such graceless actions not only
leave a long-lasting impact on the mental health of the detenu but also affects
their families, the minds and trust of thousands of people who believed in
democracy and on their rights given by the constitution.
This also shatters the thought of believing in the opportunity of taking a stand
for what they thought was right. The inhuman treatment, physical and mental
harassment experienced by the people during their tenure of detention cannot be
compensated with anything. The after effects of such incidents may come with
serious mental illness, further life and career blurred and unforgettable fear
in the mind.
All in all, the executives cannot foolishly continue to use such laws according
to themselves until and unless necessary, as it creates a sense of terror among
people and affects the society at large. Thus, in order to stay together as a
united country, it is important to respect each other’s freedom and dignity and
further take necessary steps to address the problems faced by such preventive
detention laws in order to bring a solution which may be helpful to the society
plus take care of the country too.
When we say democracy, it is followed by an important quote BY THE PEOPLE, FOR THE PEOPLE and OF THE PEOPLE. Since, the sole objective of democracy is
to work for the benefit of the people, these preventive detention laws should
not fit in. Our fundamental rights protect, empower and promote the development
of each citizen in every aspect.
But still, there are few things that are in desperate need to be taken care of.
The contradictory existence of article 22 and preventive detention laws has been
the subject of many debates from a very long time. Curious to think, what made
the government continue with these laws even after they were continuously
opposed. The high time for doing something in this matter was also a very long
time back. Nevertheless, we can still expect something as Reckless
implementation of these laws poses constant threat to the people and is a
time-consuming process for the judiciary. 17
Article 22 though provides safety regarding arrest matters but it's time to
rethink and conclude that it is not a complete code.18 India is achieving
several milestones in development and these tiny irregularities cause huge
destruction and pulls back the achievements of the country by showing where we
Most of us want these laws to be scrapped, but the government has their own
concern for the safety of the nation and it is true we cannot just remove them
as it is sometimes necessary to use such kind of detention when the country is
in danger. But we could find its alternatives which will not be against the
international standards or introduce certain amendments Like, limiting the scope
of using these laws during emergency only 19.
Further, reducing the power in the hands of executives and giving more to the
judiciary itself and letting the apex court take the charge to preserve the true
essence of democracy. We could also start with equal punishments if the
detainment was used by somebody as their tool to accomplish their own purposes
and Importantly, making provisions to provide certain help or compensation to
the detenu and to their family.
Though any form of monetary compensation cannot cover the distress faced by them
but we can try to introduce some rehab centers or any medical help centers if
the detenu has faced certain mental and physical harassment even after being
All in all, these preventive detention laws are clearly abuse to humanity. No
such law should remain if they in any form interrupt with the freedom and
dignity of the individual. At last, the constitution should get rid of this dark
cloud and free the people from the fear by either making it more adjustable by
amendments or by totally scrapping it as for now because it does not , at all
suit the criteria of democracy.
- The constitution of India, art. 22.
- Shah Ishfaq, Preventive detention Legal service India. (2019)
- J.N. Pandey, The constitutional law of India,154,155 (Central Law
Agency, Allahabad, 10th edn., 1980)
- Naman Jain, Rowlatt Act in disguise: The Preventive Detention laws in
India, The Law Blog, (2020)
- Ravi Nitesh, Democracy is not about detention and suppressing
dissent, The Kashmir Times, 8/11/2020, available at http://www.kashmirtimes.com/newsdet.aspx?q=104284,