What do Mahatma Gandhi, Jawaharlal Nehru, Batukeshwar Dutt have in common with Umar Khalid and Khurram Parvez? A commonality to be found is that despite being born in a widely different era, all of them were put under preventive detention, the former being detained by the British Colonial government, and the latter, being social and human rights activists, were detained by the current Indian government, without proper trial and legal representation.
A natural question thus arises: how did our constitution makers, having seen the repressive nature of these laws, and the violation of natural justice inflicted upon them, still went along to provide clauses for preventive detention in the Constitution of the newly independent India.
Article 22 of the Indian Constitution allows for preventive detention, specifically under clauses 22(3)(b) and 22(4). It enables the state to detain individuals without trial for up to three months to prevent them from acting against national security or public order, bypassing standard arrest safeguards.
The Constitution makers justified preventive detention by choosing the weaker formula of “procedure established by law” in Draft Article 15 (now Article 21) borrowing from the Japanese Constitution, instead of the US styled “due process” so that the Parliament could enact laws regarding detention and security.
In lengthy debates that unfolded in the constituent assembly, many members (e.g, KM Munshi, HV Patashkar, Mehmood Ali Baig) warned that a partisan legislature could curtail individual liberties, including through preventive detention laws, providing little scope for their judicial scrutiny.
The intentional dropping of the words “due process” was a concern that a conservative Judiciary may strike down progressive land reforms or socio-economic reforms, as was suggested by Alladi Krishnaswami Ayyar that even maximum-hour labour laws were struck down by the US Courts as violating due process.
By the time the Constituent Assembly debated Draft Article 15 in late 1948, legislative entries for preventive detention had already been approved in the Seventh Schedule. At the same time, almost all provinces were operating under sweeping colonial‑style public‑order and security laws providing for preventive detention without trial.
After due process was dropped, there was little constitutional check on detention laws beyond the safeguards provided by the legislature.
It is in this regard that the issue was reopened in 1949, and led to the introduction of Draft Article 15A (now Article 22) which introduced several crucial protections, primarily focusing on rights for arrested and detained individuals, including the right to be informed of arrest grounds, legal counsel, and production before a magistrate within 24 hours. Dr. BR Ambedkar described 15A as an attempt to "save a great deal which had been lost by the non‑introduction of the words ‘due process of law’”.
This followed an extensive debate on 15th and 16th September 1949, which is worth examining in the present context.
Firstly, Ambedkar acknowledged both public and personal dissatisfaction with the Draft Article 15 noting that "all that Article 15 does" is to prevent executive action without a law, while leaving Parliament with a carte blanche to "make and provide for the arrest of any person under any circumstances" so long as a law existed. On preventive detention, Ambedkar framed his justifications in terms of the “present circumstances of the country”.
Several members, however, opposed legalising preventive detention under the constitution. Thakur Das Bhargava expressed his dissatisfaction by calling Draft Article 15 “a blot upon the constitution” and warned of a future government that might use these provisions to curtail the liberty of the individual. Similar concern was shown by H V Kamath, who commented that the assembly was designing a “short term constitution”, pertaining to the needs of the time. Bakshi Tek Chand called the Article “nothing but a cloak for denying the liberty of the individual”.
Many amendments were suggested by the opposing members of the house, and the idea of totally abrogating preventive detention was also put forward by Pandit Hirday Nath Kunzru. Other members like Mahavir Tyagi expressed hope that the Constituent Assembly members would experience detention under the law they were passing.
But the Article was adopted with minor changes regarding legal representation and expanding the role of the Supreme Court in the matters of the Advisory Board, which reviews detention orders within 3 months of the detention.
Together, Article 21 and 22 at the founding meant that a person’s life and liberty could be taken away by any law that prescribed a procedure, as far as the procedure was in accordance with the minimal requirements that Article 22 imposed in preventive detention cases.
The Preventive Detention Act, 1950 was enacted by the Provisional Parliament on 25th February 1950, just a month after the constitution came into force. The Act allowed the Central and State governments to detain individuals whom they were "satisfied" were likely to act in ways prejudicial to the defence of India, the security of the State, public order, or the maintenance of essential supplies and services.
The law, as described by Home Minister Sardar Vallabhbhai Patel, was regrettable and unavoidable to counter the leftover communal militias, saboteurs, and communist insurgencies such as the Telangana Peasant uprising, emphasising that it was passed "with a heavy heart" and was meant to protect the liberty of the many by restraining a dangerous few.
When the communist leader AK Gopalan challenged the law in the newly created Supreme Court, the majority upheld the law in a landmark judgement which interpreted the term “procedure established by law” in its narrow, formal sense.
Over the coming years, the Preventive Detention Law was debated in the Lok Sabha and Rajya Sabha. Home Ministers such as K.N. Katju and Govind Ballabh Pant defended preventive detention, while opposition ministers like Frank Anthony called the act “pernicious”. The ministers, in a recurring pattern, stated that despite abuses, the detention law was necessary for national security and integrity, whereas in practice the Act had become a tool for silencing dissent.
It is worth noting that the majority of the members of the Constituent Assembly and Parliamentarians were Western-educated elites. Perhaps to them, the coercive national integration was more important than liberty for the masses - the peasants, the labourers, and other groups of the lower class.
Ironically, the clause of due process, substituted for the intention to bring reforms, ended up crushing the organised movements of peasants for equal distribution of the land.
Contemporary Preventive Detention Laws
The laws that emerged after the PDA, 1950 extended the same preventive detention logic in new political scenarios like secessionist movements, Emergency era repression, Kashmir’s counter insurgency; all while preserving the constitutional architecture laid down in Articles 21 and 22.
Unlawful Activities (Prevention) Act, UAPA, 1967
UAPA was enacted to “provide for the more effective prevention of certain unlawful activities of individuals and associations, and for dealing with terrorist activities, and for matters connected therewith”.
Notably, the UAPA did not contain the “terrorism” chapter when it was enacted; the 2004 amendment, after the repeal of POTA, introduced “terrorist activities” into UAPA, and later amendments (2008, 2012, 2019) subsequently widened definitions and powers, including the power to label individuals as “terrorists.”
The basis of UAPA was the Sixteenth Constitutional Amendment (1963), enacted after a recommendation of the National Integration Council’s Committee on National Integration and Regionalism to allow “reasonable restrictions” in the interests of the “sovereignty and integrity of India” on speech, association, and movement. The formal reason given by the Council was “communalism, casteism and regionalism”.
In the background, however, was an India facing Dravidian Secessionism, Naga and Mizo insurgents, and the unresolved question of Kashmir.
The Law gave the Union legal powers to ban organisations and prosecute individuals whose activities or speeches were seen to be threatening to the integrity of India, especially around the secessionist and “anti-national” movements.
Later as the Naxalite movement and the Sikh militancy became “central” to the security question, UAPA was amended to become the main anti-terror law.
Jammu & Kashmir Public Safety Act, PSA, 1978
The J&K Public Safety Act 1978 is a state-level preventive detention law authorising detention to prevent acts “harmfully against the security of the State or the maintenance of public order” in Jammu and Kashmir.
PSA was introduced by the government of Sheikh Abdullah ostensibly to prevent large scale timber smuggling. However, the first uses of PSA were against the political rivals of Abdullah, turning the act into a political tool while showcasing environmental concerns.
After the emergence of militancy and mass mobilisations in Kashmir during the 1980s and 90s, the PSA became the main instrument of counterinsurgency. By 2015, official figures indicated 16,329 detentions under PSA since 1988, “nearly all from Kashmir.”
The act was retained after the 2019 reorganisation of Kashmir into a Union Territory, and has been used to target activists, journalists, protestors, and even mainstream political leaders.
National Security Act, NSA, 1980
The National Security Act, “provides for preventive detention in certain cases and for matters connected therewith,” extending to the whole of India. The Union and State governments can detain persons to prevent acts prejudicial to “the security of India, the relations of India with foreign countries, the maintenance of public order, or the maintenance of supplies and services essential to the community,” and also to detain foreigners for regulating their presence or expulsion.
The Preventive Detention Act lapsed in 1969. Indira Gandhi’s government then enacted the Maintenance of Internal Security Act (MISA) in 1971 and infamously used the act during the Emergency for mass detentions of political opponents. It was repealed after the Janata Party victory in 1977.
Between 1977 to 1980, India formally had no preventive detention law. The ruling class, from its perspective, had to face the trauma of Partition, Naxalite movement, and regional insurgencies, and had normalised the use of preventive detention for “security measures”.
The state thus needed a law with the same powers as MISA but without the stigma of the Emergency. Communal violence, labour unrest, and insurgencies in the Northeast were used to justify an all-India framework for preventive detention, and this was fulfilled by the National Security Act of 1980.
Looking back at the debates of the Constituent Assembly regarding preventive detention, we can perhaps admire the foresight of members who showed concern to abrogate preventive detention altogether.
In today’s India, these laws are extensively used to target dissenting voices, often Muslims, Kashmiris, labour activists, Adivasi rights activists, researchers, journalists, and others often under the guise of “terror funding” or “naxalite” links.
The political use of these laws still continues, and has even increased under the Union BJP government, putting the life and liberty of the individual at the mercy of the state. This raises a pertinent question: how far can the liberty of individuals be compromised in relation to the security of the state?
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