Preventive Detention and Constitution of India

Preventive detention and constitution of India:

The sacred constitution of India provides two type of detention under article 22. First is punitive detention and second is Preventive detention. Our discussion will be focused on only preventive detention in this article. Preventive detention means detention to prevent someone from committing an act which is prejudicial to the interest of nation and the society. The object of preventive detention is to intercept a person from doing anything prejudicial to the interest of nation and society. There is no authoritative definition of preventive detention in Indian law. First time, the term was used by law lords while explaining the nature of detention under regulation 14-B, defense of realm act 1914.

The power to legislate such law is divided between union and state by the constitution of India.  The union and state, both have power to enact laws for preventive detention but grounds are different. The union has exclusive power to enact preventive detention laws, if the matter is connected with [Entry 9 of List 1, 7th Schedule] Defense, Foreign Affairs or the Security of India. And state has exclusive power to enact such laws in case of [Entry 3 of List III] maintenance of public order, or the maintenance of supplies and services essential to the community. Both state and union can enact their own preventive detention laws but in case of conflict, it is center’s law that will prevail.

Article 22 (3) provides power to legislate preventive detention laws and article 22(4)-(7) provide few safeguard against preventive detention.

  • “No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention.”
  • the authorities making such order shall, as soon as possible, communicate the grounds on which they are making such order, excepting the fact that are against the public interest disclose.
  • The authorities shall also afford him the earliest opportunity of making a representation against the order.
  • Parliament may prescribe by law, the circumstances under which a person can be detained longer than three months without obtaining the opinion of advisory board.

Apart from these safeguard, constitution also provides another safeguard that is writ of habeas corpus under article 32 and article 226. There have been a number of cases in which the   constitutional Courts have nullified orders of preventive detention in proceedings for habeas corpus. And apart from these safeguard, supreme court of India has provide additional safeguard in series of its number of judgement.

History of preventive detention laws in India:

The origin of preventive detention laws can be traced back into the British rule. Laws authorizing preventive detention were present in 1818 in form of Bengal regulation III officially known as Bengal state prisoners regulation III. It gave power to arrest merely on the suspicion of criminal intent. Similar laws were present in madras and Bombay presidency.

British parliament authorized government to make preventive detention during first and Second World War through defense of realm act 1914 and Emergency Powers (Defence) Act, 1939 and such laws were upheld by British court on ground of necessity in case of Liversidge  v. Anderson, 1942 AC 20669 and once again in case of R v. Haliday, 1917 AC 260, 269. But the Indian constitution provides such provision even in peace time.

The constitution makers were of the opinion that the circumstances which necessitated such laws had not disappeared from independent India. They continued with such provision with few safeguards. And the first such law was passed in 1950 in the form of preventive detention    act,1950. It was temporary and passed only for one year. Due to compelling situation of that time, the term was extended till 1969. The prevailing situation during 1960s compelled parliament to make new preventive detention laws named the Maintenance of Internal Security Act [popularly known as MISA] in 1971, having provisions broadly similar to those of the Preventive Detention Act of 1950. In 1974, the Parliament passed the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 [popularly known as the COFEPOSA], as an economic adjunct of the MISA. While MISA was repealed in 1978, COFEPOSA still remains.

Further power of preventive detention has been conferred on the Central and State Governments to safeguard defence and security of the country and to maintain public order and essential supplies and services by making the National Security Act, 1980, and the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980.

44th constitutional amendment and preventive detention:

While 44th amendment tried to alleviate the rigor of the procedure for preventive detention, the section 3 is yet to be enforced. Section 3 was not enforced by government even the amendment was duly passed by the parliament. Section 3 of 44th constitutional amendment curtails the authority of government to impose preventive detention on several grounds. The amended but yet to be enforced clause 4 provides that detention will not exceed 2 month without obtaining the opinion of advisory board, which will be constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court. The amendment also provides that the advisory board would be consist of a chairman, who will be serving judge of appropriate high court, and two other member, who will be serving or retired judge of high court.

Most importantly, this amendment omits clause 7(a) of art. 22 that currently provides that Parliament may by law provide for circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an advisory board. This liberty would to be completely dispensed with under the amended Article 22(4).

But this section 3 has not been enacted by any government so far. A Constitution Bench of the Supreme Court in December 1981 by a majority judgment in “AK Roy V. Union of India1982 AIR 710” ruled that as the Act itself authorised the executive government to issue the requisite notification so as to appoint dates for commencement of different sections of the Act, the court could not compel the government to implement this amendment.


Preventive detention is considered being bad in laws especially during peace time, but it is necessary for the sake of security and integrity of India. We can’t do away with law for the fear of it can be misused. In case of A.K. Gopalan v. State of Madras [AIR 1950 SC 27], justice shahstri has upheld the necessity of preventive detention laws due to prevailing situation in India. Sardar vallabh patel told parliament while presenting the preventive detention law 1950 that it is directed against the person whose avowed object is to create disruption, dislocation, and tamper with communications, to suborn loyalty and make  it impossible for normal government based on law to function. But there must be effective checks and balance for preventing the misuse of law. It is high time that 44th constitutional amendment should be fully implemented to establish robust checks and balance against the possible misuse of such laws.


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