The danger of an unchecked pre-crime framework

Introduction

Preventive detention in India has moved from an exceptional measure to a routine tool of governance. Even after the Supreme Court’s caution in Dhanya M. (2025), authorities continue to invoke expansive state laws such as Kerala Anti-Social Activities (Prevention) Act (KAAPA), where broad “goonda/rowdy” categories blur the line between public order and ordinary law-and-order issues. NCRB figures—about 24,500 cases in 2022—reflect this normalization. Earlier rulings like A.K. Gopalan and A.K. Roy still shields the regime from the full protection of Articles 14, 19, and 21. Meanwhile, weak disclosure, delayed access to lawyers, and in-camera reviews persist.

Preventive Detention

1. Preventive detention refers to the imprisonment of a person to prevent the possible commitment of crime on the grounds of suspicion that such a person may commit some crime in the near future.
2. It leads to the detention of a person without trial and conviction by a court. Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the near future.

[Note: There are commonly two types of detentions: preventive detention and Punitive detention

Punitive detention, which means detention as a punishment for the criminal offence. It occurs after an offence is actually committed, or an attempt has been made towards the commission of that crime.]

Constitutional Provisions Related to Preventive Detention

1. Article 22 also authorises the Parliament to prescribe

(a) the circumstances and the classes of cases in which a person can be detained for more than three months under a preventive detention law without obtaining the opinion of an advisory board

(b) the maximum period for which a person can be detained in any classes of cases under a preventive detention law

(c) the procedure to be followed by an advisory board in an inquiry.

2. The 44th Amendment Act of 1978 has reduced the period of detention without obtaining the opinion of an advisory board from three to two months. However, this provision has not yet been brought into force, hence, the original period of three months still continues.
3. Power to enact

• The Constitution allows both the union and state to enact preventive detention laws.
• While Parliament is exclusively entitled to enact preventive detention laws related to defence, foreign affairs, and the security of India (List I, entry 9),
• Both Parliament and the state legislatures can make such laws for reasons to do with the maintenance of public order and ensuring supplies and services essential to the community and the security of a state (List III, entry 3).

Legislation in India on Preventive Detention

1. National Security Act, 1980: This act provides for administrative detention for a period of up to one year.
2. Unlawful Activities (Prevention) Act, 1967: Prevents activities threatening India’s sovereignty, security, and integrity.
3. COFEPOSA 1974: The act provided for preventive detention to maintain and improve foreign exchange and also to deter illegal trade prevailing.

4.Public Safety Act, 1978: Used in Jammu & Kashmir for preventive detention on grounds of public order and security

5. TADA 1985: The fundamental objective of this legislation is to demonstrate that it was agreed based on practice that preventive detention is required to deter and successfully counteract terrorism and violent acts.
6. State-specific laws: Some states have framed laws based on preventive detention in the context of bootleggers, human traffickers, land grabbers, cyber criminals, etc

Grounds on which Prevention Detention can be made

Security of the state

Maintenance of the public order

Maintaining essential services and defence

Foreign affairs with the security of India.

Important judgement on Prevention Detention

1. A.K. Gopalan v. State of Madras (1950):

• The Supreme Court upheld the constitutionality of the Preventive Detention Act, 1950, and read Article 21 narrowly as “procedure established by law,” not “due process.”
• It treated Articles 19 and 21 as separate, allowing detention if a statute’s procedure was followed, even if the procedure was harsh.
• Preventive detention is permissible if the law’s procedure is observed, with limited judicial scrutiny of fairness.

2. ADM Jabalpur Case: The Court held that the right to approach the courts to challenge even illegal or malicious detentions was unavailable when Article 21 was suspended during an emergency.
3. A.K. Roy v. Union of India (1982):

• The Court upheld the NSA but stressed that preventive detention is an exceptional power and must follow constitutional safeguards, including Article 22(5).
• It also clarified that the President’s ordinance power is legislative and subject to constitutional limits and judicial review, including Article 21.
• Preventive detention is allowed, but only within strict procedural and constitutional checks.

4. Rekha v. State of Tamil Nadu (2011):

• The Supreme Court reaffirmed that Article 21 strongly protects personal liberty and that Article 22(3)(b) allows preventive detention only as a narrow, exceptional carve-out.
• It held that Preventive detention is strictly exceptional; where regular criminal procedures can manage the risk, a detention order is unlawful.

5. Dhanya M. v. State of Kerala (2025)

• The Court called preventive detention a “draconian measure” to be used only for serious threats to public order, not for ordinary law-and-order violations.
• It ruled that authorities cannot use preventive detention to circumvent bail orders or as a substitute for seeking bail cancellation under criminal law.
• Do not weaponise preventive detention against bail; show a live, proximate necessity beyond ordinary procedures.

Major concern related to preventive detention

1. Misuse: Preventive detention is used far beyond its original intent. Authorities often prefer it as an easy tool against protestors and politically weighted groups. NCRB data show a near-doubling over eight years, with about 24,500 cases in 2022, signalling normalisation of an extraordinary power.
2. Bypassing Ordinary Law: Many situations could be handled by the penal code—investigation, charge, trial, bail, or bail-cancellation. Yet detention is invoked.This replaces due process with executive shortcuts.
3. Lack Due Process: Detainees often lack full, timely disclosure of grounds and face delays in accessing lawyers. Advisory Board reviews are in-camera and largely rely on executive records. Non-disclosure in the name of “national interest” undermines natural justice and International Covenant on Civil and Political Rights (ICCPR) standards.
4. Delayed Relief: Courts do strike down orders for non-application of mind or procedural lapses, but usually after long custody. Habeas petitions are frequently delayed or dismissed on technical grounds. There is no meaningful compensation or immediate review, allowing harm without real remedy.
5. Structural Flaws: Preventive detention laws in many states use vague or elastic grounds, so the net is wide and often catches people who should be dealt with under ordinary criminal law. Even the safeguard in Article 22 is weakened because authorities can refuse full disclosure of grounds “in public interest,” creating a direct tension with Articles 19 and 21 and with basic due-process norms.
6. Colonial roots as a problem: Because preventive detention grew out of Raj-era practices aimed at silencing dissent, many experts question its relevance and legitimacy today.

Way forward

1. Revisit the constitutional basis: In view of the Supreme Court’s observations in Dhanya M., India should reassess the older rulings in A.K. Gopalan and A.K. Roy and update the preventive-detention framework so it satisfies today’s constitutional tests—due process, proportionality, and stronger protection of fundamental rights..
2. Narrow the scope of use: Permit preventive detention only for truly grave threats such as terrorism or transnational drug cartels, and prohibit its routine administrative use.
3. Guarantee robust procedural safeguards: Give every detainee a statutory right to legal representation before the Advisory Board, and supply the grounds of detention, except in narrowly defined, exceptional cases of serious public-interest risk.
4. Mandate strict judicial control: Require prompt and periodic judicial review of every detention, fix short maximum detention periods, and bar rolling or indefinite renewals.
5. Provide remedies and accountability: Make compensation compulsory for unlawful or wrongful detention and create personal and institutional consequences for mala fide actions.
6. Raise the standard of judicial review: Direct higher courts to test the substantive necessity and proportionality of detention, not just the detaining authority’s “subjective satisfaction,” and build clear jurisprudence on these tests.
7. Institutionalise transparency and data: Establish a national monitoring framework that publishes annual statistics on preventive detention, including age, gender, religion, and caste, and releases Advisory Board submission and outcome data.
8. Periodic audits: Require periodic audits by the NHRC and State Human Rights Commissions.

Improve policing: train police and prosecutors to strengthen evidence-based investigation so that preventive detention remains an exceptional last resort.

Conclusion

To restore liberty as the rule and detention as the exception, India must confine preventive detention to narrowly defined threats, enforce real safeguards and time limits, and submit every order to stringent, periodic judicial review. Transparent data, independent audits, compensation for wrongful detention, and stronger routine policing will curb misuse. Aligning the framework with Articles 14, 19, and 21 is essential to protect constitutional values without compromising security.