preventive detention - LAW INSIDER

By K. Manoggnya Reddy

Published On August 24, 2021 11:50 IST


General meaning – Detention is a process of isolating an individual for observation for a period of time without the knowledge of the individual, inevitably violating their right to liberty.

To provide an example: A mother separating two siblings who got into a verbal argument and grounding them in their rooms under the suspicion that the argument could progress further into an physical one. This action is termed as preventive detention, since the mother detained her children to prevent further argument, rather than punitive detention, which is punishing a person after committing an offence, whereas the former prevents the person to even commit an offence.

Preventive detention is an anticipatory measure that can be used to prevent an individual from committing an offence, whereas Criminal proceedings are usually initiated against individuals who commit an offence. The main objective of preventive detention is to prevent the suspects from committing criminal activities against the state. This concept of preventive detention is against the democratic state. It is a violation of the fundamental rights of citizens.

The case of Justice K.S. Puttaswamy (Retd.) VS Union of India[i] talks about the increasing scope for privacy in India, i.e., it talks about the right to be alone.

The primary concern about preventive detention is that it is in violation of the person’s inalienable rights to liberty when it comes to arresting them on mere suspicion. There is a conflicting view on the issue of preventive detention, especially between the human rights activists who are in favor of the liberties of the individual and are against the detention of individuals and on the other hand with the requisites of the state. The balance between these two aspects has to be maintained carefully with utmost importance to maintain the momentum of human freedom on one hand and the state’s obligation towards national security on the other.

Although personal liberty is a fundamental right guaranteed by the Constitution, it can also be restricted by the laws of the state. It is not expressively an absolute right. But, In order to invade someone of their personal liberty the state must meet its basic requirements. It has been actively vocalised that this concept of preventive detention is curbing the freedom of an individual in order to prevent them from committing crimes, and that it has to be changed in order to secure the rights of individuals. There are instruments guiding certain principles for the detention of persons – such as the Universal Declaration of Human Rights, 1948; European Convention on Human Rights, 1950 etc. These conventions provide a comprehensive understanding of the various legal rules governing the arrest and detention of persons.

Historical perspective of Preventive Detention in India

India has a huge tradition of preventive detention. It comes under a few countries that provide regulations for this practice. Critics of the preventive detention provisions of Human Rights argue that these provisions do not work along with measures which safeguard the rights of the individual. The European Court on Human Rights has ruled that preventive detention without due process is illegal under the European Human Rights Convention.

Likewise, In its submission to the National Commission on the Review of the Functioning of the Constitution (NCRWC) in 2000, the South Asia Human Rights Documentation Centre (SAHRDC) proposed the removal of the provisions that allow Preventive detention.

During the First and Second World War, taking into consideration provisions of Preventive Detention, England enacted several emergency laws, such as the Realm Act and the  Emergency(Defense) Powers Act. These acts were specially designed to protect civilians during wartime. They also ceased to exist following the end of the Wars. The Defense Act was eventually replaced by a series of peacetime preventive detention laws, such as the Bengal Criminal Law Amendment Act and the Rowlatt Act after the end of the First World War.

Before India gained independence, the colonial government allowed authorities to arrest people on the basis of suspicion under the Bengal State Prisoners Regulation, III of 1818. The rules under the Defense of India Act, 1939, allowed a person to detain a person for a period of time to prevent him from exhibiting any detrimental behavior to the security and defense of the country.

The Preventive Detention Act, 1950, was the first law that was passed after independence. However, It was questioned on its validity due to some provisions in the case of A.K. Gopalan. The Supreme Court held that the act was constitutionally valid. Before the Act became law in 1969, it was amended seven times. The reason why each time was added was to extend its validity for three more years. It was finally enacted on December 31, 1969.

Before independence there have been various laws made for the prevention of various crimes and activities. Some of these include the Prevention of Illegal Foreign Exchange and Smuggling Activities Act, 1971 and the Foreign Exchange and Terrorist Activities Act, 1985.

Preventive Detention Laws in India

In 1950, the Parliament passed the Preventive Detention Act,1950, which aimed to detain individuals on the basis of the state’s security or defense.

The case of A.K. Gopalan Vs State of Madras[ii] has challenged the Prevention of Detention Act, 1950. Where a leader – A.K. Gopalan was detained in Madras jail in 1947. He was sentenced various times under different laws. However, every time his sentence was set aside, he was taken into custody in 1950 under the Preventive Detention Act. He contended that the provisions of the Act are in violation of certain articles of the Constitution including – Article 13, 19, 21 and 22.

The arguments presented by the defense counsel claimed that the act would curb the liberties and infringe on the fundamental rights guaranteed under the Constitution. The case was decided by a 4:1 ratio, where the majority did not recognize detention as an illegal act under Article 21.

Justice Fazl Ali said that fundamental rights cannot be separated from and are a part of a common thread of freedom and liberty. He said – ‘This practice of preventive detention is a violation of the right to freedom of movement. It is treated as deprivation of ‘personal liberty’. The Gopalan doctrine was revisited by R.C. Cooper[iii] and Maneka Gandhi[iv]cases.

In Rustom Cavasjee Cooper vs Union Of India[v], Justice PN Bhagwati said that the term “personal liberty” is a comprehensive one and that the right to freedom is an attribute of personal freedom.

There is no question that Article 21 is carved out from Article 19. Its many attributes can be found in the following in Article 19(1)(d). In short, Article 21 covers a wide range of rights. Some of them had protection under Article 19. The concept of fundamental rights and privacy being interrelated became widely acknowledged after the Justice KS Puttaswamycase which overruled the judgement given in MP Sharma[vi] and Kharak Singh[vii] Case.

Constitutional Validity of Preventive Detention in India

The 1950 Preventive Detention Act aims to prevent the detention of persons in certain circumstances, such as national defense and for the preservation of peace and order.

The validity of the Preventive Detention Act, 1950, was challenged before a court in a case of A.K. Gopalan vs the State of Madras. The court was asked to review the provision where it was obvious that the freedom of an individual did not qualify under the provisions of the article 21.

The Supreme Court, in its limited view of the guarantees provided by the Constitution, refused to crosscheck to find any inadequacies in the procedures of law used for determining the validity of Articles 21 and 22. It was the belief that all constitutional articles were autonomous of one another.

The Supreme Court rejected the arguments of the petitioner challenging his detention on the ground that it violated his rights under Articles 19 and 21 of the Indian Constitution. The Supreme Court rejected the arguments that the detention was justified on the basis of the procedures followed in accordance with the law.

The Supreme Court has broadened the range of expression ‘personal liberty’ to encompass all aspects of human endeavor in the case of Maneka Gandhi Vs Union Of India[viii]. The court noted that since Article 21 does not exclude the right to personal liberty of Article 19, any law that deprives a citizen of that right must stand up to the scrutiny of both articles.

In the case of Justice K. S. Puttaswamy (Retd.) and Anr. Vs Union Of India[ix], the Court established three conditions for holding that an infringement of one’s personal liberty is not valid. These conditions include the presence of law and the need for a fair relationship between objects and the ways they are pursued.

Preventive Detention Laws internationally

This practice of Preventive Detention is commonly used when the state believes that the release of the accused would have detrimental effects on its investigation. It has been criticized as a denial of fundamental rights.

In most cases, the procedure was used to protect the rights of people detained before trial. This procedure was used in certain countries, particularly France and Belgium where the rights of a person are protected with utmost care. In France, the practice was exclusively carried out by courts. In Belgium, every individual detained in this way must be reviewed monthly to see if they still have a threat to society and if they should be released.

This practice was observed mostly by dictators to arrest and detain their opponents. It was also used during the Soviet Union. In countries where the protection of individual rights was not of paramount concern, authorities often chose to enforce the law instead of protecting people from preventive detention. Where there is greater concern for the individual rights, the control was given to the courts. But Critics till today argue that the system does not provide sufficient protection of Human/Individual rights.

In 1984, the US enacted a preventive detention act. This allows authorities to detain individuals suspected of committing crimes without charge or trial unless they can justify their release.

The act was challenged in 1987 in front of the US Supreme Court in United States Vs Salerno[x]. In 1987, the court ruled that the bill did not violate the due process clauses of the Fifth Amendment and the Eighth Amendment. Following the Salerno case, various states of the U.S. adopted detention laws. In the Salerno decision, the concept of preventive detention was acknowledged for the first time at a theoretical level.

However, the 1984 decision did not change the way the US courts treated certain types of cases. The U.S judiciaries could deny bail in certain circumstances, and where there is a huge threat of escape in certain cases the Procedure of Preventive detention was used adequately.

In most cases, courts will detain arrestees by setting bail amounts that are high enough to prevent them from gaining release. In some of the cases the bail was given but with extreme restrictions. For instance, in 2011, a prominent French politician was charged with sexual assault in New York. He was released on bail after he agreed to stay in a New York apartment under the watch of private security guards.

The Australian government has authorized preventive detention laws.

In Canada, anyone who is declared a dangerous offender by the court can be detained for an indeterminate period of time.

In Germany, detention for serious criminals can be carried out as part of the criminal justice system. It prevents them from committing grave offences.

In Japan, it is possible to extend the duration of pre-trial detention to 23 days without charge. This is the discretion of the prosecutors.

Malaysia’s Internal Security Act 1960 was enacted to allow authorities to detain suspects for preventive purposes.

New Zealand has a law that allows the Preventive detention of individuals above 18 years who are convicted for violent crimes and for sexual offenders.


The act of Preventive Detention is used to detain individuals who have not committed any crimes but are suspected of committing them in the future.

There are also various advantages and disadvantages of preventive detention. Detaining people on preventive measures is usually justified for people with mental illness or people with diminished responsibility.

For instance, if a person has substance abuse problems or has the capacity to commit suicide or has dementia, then preventive detention would prevent them from causing harm to themselves and others.

Demerits are generally termed as the detaining of an individual of perfectly sound mind for an indefinite period of time. This type of detention could violate the rights of the individual.

Overall, Preventive Detention is generally good for preventing crime, but it can also violate certain Individual rights.

Aside from its merits and demerits, preventive detention has its own set of rules and regulations. Just like a coin, it has its own merits and disadvantages, and its execution is solely dependent on the legislature according to the procedure of law.


[i]Justice K. S. PuttaswamyVs Union of India, WP (C) 494/2012.

[ii]A.K. Gopalan Vs The State Of Madras.Union Of India, 1950 AIR 27, 1950 SCR 88.

[iii]Rustom Cavasjee Cooper Vs Union Of India, 1970 AIR 564, 1970 SCR (3) 530.

[iv]Maneka Gandhi Vs Union Of India, 1978 AIR 597, 1978 SCR (2) 621.

[v]Rustom Cavasjee Cooper Vs Union Of India, 1970 AIR 564, 1970 SCR (3) 530.

[vi]M. P. Sharma And Others Vs Satish Chandra, District …, 1954AIR 300, 1954 SCR 1077.

[vii]Kharak Singh Vs The State Of U. P. & Others, 1963 AIR 1295, 1964 SCR (1) 332.

[viii]Maneka Gandhi Vs Union Of India, 1978 AIR 597, 1978 SCR (2) 621.

[ix]Justice K. S. PuttaswamyVs Union of India, WP (C) 494/2012.

[x]United States Vs Salerno,481 U.S. 739 (1987).

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