Why in News: In Dhanya M. vs State of Kerala (2025), the Supreme Court struck down a preventive detention order under the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA), reaffirming that liberty cannot be curtailed lightly.
Constitutional and Legal Background
- Articles 22(3)–(7) allow preventive detention — a colonial legacy dating back to the Bengal Regulations of 1818.
- The Preventive Detention Act, 1950 made such detention a permanent legal feature.
- In A.K. Gopalan vs State of Madras (1950), the Supreme Court upheld preventive detention as valid, limiting review to Article 22 alone.
- Later judgments — Maneka Gandhi (1978) and A.K. Roy (1982) — left ambiguity on linking Articles 14, 19, and 21 with Article 22.
- Thus, preventive detention laws operate outside the “golden triangle” of fundamental rights, creating a constitutional vacuum.
Judicial Concerns and Contemporary Issues
1. Broad laws like KAAPA blur the line between law and order and public order.
2. “Subjective satisfaction” of detaining authorities invites executive overreach.
3. Preventive detention often used against dissenters and political opponents.
4. Weak procedural safeguards and limited judicial review violate due process.
5. The system mirrors a “pre-crime” approach, punishing prediction rather than proof.
Way Forward
- Preventive detention must remain an exceptional measure, confined to grave threats like terrorism or espionage.
- Amend Article 22 to align with the due process standard of Article 21.
- Ensure judicial oversight, periodic review, and transparency in detention cases.
- Replace “subjective satisfaction” with objective, evidence-based criteria.
- Reaffirm that personal liberty is the rule and detention the rare exception, preserving the spirit of constitutional democracy.
UPSC Relevance
GS Paper II – Polity and Governance:
- Constitutional provisions on preventive detention (Articles 22(3)–(7)) and their implications for fundamental rights.
Mains Practice Question
Q1. Preventive detention remains one of the most controversial legacies of India’s constitutional framework. Critically examine its compatibility with the fundamental rights guaranteed under Articles 14, 19, and 21. (250 words)
