By Sanjay Raman Sinha
The past few weeks have witnessed a spate of preventive arrests and detention measures, accompanied by judicial interventions granting relief to those affected. Across several cases, courts have questioned the indiscriminate exercise of State power, scrutinising the legal reasoning, necessity and proportionality underlying the use of preventive detention against peaceful dissent and protests.
On the eve of a Cockroach Janta Party (CJP) protest in Delhi, police placed activists Dhruv Rathee, Abhijeet Dipke and Neha Bora under preventive arrest. Recently in Mulla Afroz vs Union of India (2026), the Supreme Court quashed the preventive detention of an accused in the Sambhal violence case and imposed costs of Rs 10 lakh on the Uttar Pradesh government. Earlier, the Noida District Magistrate, Medha Roopam, was reprimanded and fined over preventive detention measures taken during workers’ protests in Noida.
The detention of climate activist Sonam Wangchuk provides another striking example. Detained in Leh on September 26, 2025, under the stringent National Security Act (NSA), Wangchuk was subsequently released after spending 170 days in Jodhpur Central Jail. The Supreme Court questioned the centre over the evidentiary basis for his prolonged incarceration without trial.
Taken together, these cases raise fundamental questions about the fairness and intent of police action. Is due process being respected, or is dissent being silenced under the pretext of maintaining public order?
The State frequently justifies such measures by invoking reasonable restrictions on fundamental rights. A restriction may be presented as lawful and proportionate, yet become, in practice, an instrument for suppressing dissent and curtailing personal liberty without adequate procedural safeguards.
It is here that the judiciary’s constitutional role becomes indispensable. As the guardian of fundamental rights, the courts must distinguish between the legitimate exercise of State authority and its arbitrary use. Their task is to determine where reasonable restriction ends and constitutional violation begins.
The Supreme Court’s decision in Jaskaran Jeet Singh Deol vs State of Punjab underscores the importance of procedural safeguards. The Court held that failure to furnish written grounds of arrest to an accused, subject to limited exceptional circumstances, renders the arrest unconstitutional. It also prescribed stringent safeguards governing re-arrest. Compliance with such requirements is essential to prevent the criminal process from becoming an instrument of arbitrary State action.
A crucial distinction, however, must be maintained. The arrests preceding the CJP protest were reportedly preventive arrests under ordinary criminal procedure, not preventive detention under a special statute such as the NSA. The two are legally distinct. Article 22(1) and Article 22(2) of the Constitution protect an arrested person’s right to consult and be defended by a legal practitioner and, subject to the constitutional exceptions, require production before a magistrate within 24 hours. Article 22(3)-(7), by contrast, establishes a separate framework for preventive detention.
The underlying constitutional concern, nevertheless, remains the same: the State acts on the anticipation of a threat, rather than solely on the adjudication of an offence already committed. Under preventive detention laws, this anticipatory power can have particularly severe consequences because detention may continue without a criminal trial.
The Supreme Court is not alone in maintaining judicial vigilance. High Courts, too, have repeatedly intervened against unlawful detention orders.
The Allahabad High Court has issued guidelines intended to prevent arbitrary preventive detention based on apprehensions of a breach of peace. Between January 2018 and December 2020, it decided 120 habeas corpus petitions challenging detention under the NSA and quashed 94 of the orders across 32 districts. The figures illustrate the scale of judicial scrutiny required when exceptional powers are invoked.
Similarly, the Jammu & Kashmir and Ladakh High Court has frequently quashed detention orders under the Jammu and Kashmir Public Safety Act when the authorities have failed to satisfy the applicable statutory requirements.
The constitutional safeguards governing preventive detention are significant, although they are not equivalent to the protections available to an ordinary arrested person. Article 22(3)(b) excludes persons detained under preventive detention laws from the protections in Article 22(1) and Article 22(2). Article 22(4)-(7), however, prescribes safeguards of its own. Subject to the constitutional framework, detention beyond three months requires the requisite Advisory Board opinion; the grounds of detention must be communicated, subject to the constitutional exception concerning disclosure of facts considered contrary to the public interest; and the detainee must be afforded the earliest opportunity to make a representation against the order.
In the Sambhal case, the detention order was reportedly confirmed for 12 months following an Advisory Board’s report. The existence of such formal procedures, however, cannot by itself settle the question of legality. The justification for detention, the material relied upon and compliance with the applicable statutory requirements remain open to judicial scrutiny.
The roots of preventive detention in India lie deep in the colonial past. The British administration routinely employed extraordinary powers to suppress nationalist movements and quell political dissent. After Independence, the Preventive Detention Act was enacted and remained in force until 1969. During its operation, more than 1,00,000 people were detained under its provisions.
The Emergency of 1975-77 marked one of the darkest chapters in the history of civil liberties. The Maintenance of Internal Security Act (MISA) became an instrument for detaining political opponents and activists without trial. Thousands were imprisoned as democratic institutions came under extraordinary pressure.
The judiciary’s failure during this period remains a constitutional warning. In ADM Jabalpur vs Shivakant Shukla (1976), the Supreme Court, by a majority, held that during the Emergency, detainees could not seek judicial enforcement of their right to personal liberty through habeas corpus when the relevant presidential order suspended access to the courts. Justice HR Khanna dissented, affirming the fundamental importance of life and liberty. His dissent became a landmark in India’s constitutional history, even as his supersession in the appointment of the chief justice of India exposed the political pressures surrounding judicial independence.
Subsequent decades brought fresh challenges. The rise of militancy and terrorism led to the enactment and phased implementation of the Terrorist and Disruptive Activities (Prevention) Act (TADA). Its stringent provisions, coupled with a conviction rate reported to be as low as four per cent in some assessments, raised serious concerns about prolonged incarceration, weak safeguards and the disproportionate impact of anti-terror legislation.
The National Human Rights Commission (NHRC), established in 1993, subsequently played an important role in the debate over TADA’s continuation. Under its first Chairperson, Justice Ranganath Misra, the Commission opposed the renewal of the law and sought to sensitise members of Parliament to the plight of those incarcerated under it. With thousands of TADA prisoners still in custody, the NHRC called for a review of their cases and the discontinuation of the legislation. Parliament ultimately allowed TADA to lapse in 1995.
The Supreme Court’s 1994 judgment in Kartar Singh vs State of Punjab had earlier upheld TADA’s constitutional validity while recognising the need for safeguards against abuse. The law’s extraordinary provisions included the admissibility, subject to statutory conditions, of confessions made to senior police officers, stringent restrictions on bail and statutory presumptions in specified circumstances. The Court prescribed safeguards and called for mechanisms to review the exercise of these powers. Nevertheless, the judgment and the continued operation of TADA remained controversial, particularly given the potential for its provisions to undermine established protections for the accused.
Today, the legal landscape has changed, but the underlying tension has not disappeared. The Bharatiya Nagarik Suraksha Sanhita (BNSS), the NSA and the Unlawful Activities (Prevention) Act (UAPA) provide distinct legal frameworks through which the State may exercise powers affecting personal liberty. Each operates under its own statutory provisions and safeguards, but their application raises a common question: how can the State protect public order and national security without compromising constitutional freedoms?
The answer lies neither in denying the State the powers necessary to discharge its responsibilities nor in granting those powers’ unquestioning acceptance. It lies in legality, proportionality, accountability and independent judicial review.
Preventive detention is an exceptional power. Its very nature demands close scrutiny because it permits the restriction of liberty on the basis of anticipated threats, sometimes for extended periods and without a criminal trial. Where the grounds are vague, the evidence inadequate, or procedural requirements ignored, the consequences for individual freedom can be devastating.
A vigilant judiciary, therefore, remains indispensable. But judicial intervention after an unlawful detention has occurred is not a substitute for restraint by the executive or compliance by the police. Constitutional safeguards must operate from the moment the State exercises coercive power, not merely when a court eventually examines its legality.
The ultimate test of a constitutional democracy is not how effectively it can detain those it regards as troublesome, but how faithfully it protects the rights of those who challenge authority. Public order is a legitimate State objective; silencing peaceful dissent is not. When preventive powers become instruments of political convenience, personal liberty is the first casualty.
The Constitution entrusts the State with the power to maintain order. It entrusts the courts with the responsibility of ensuring that this power does not become arbitrary. The distance between those two obligations is where the future of civil liberty in India will be decided.
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