Context

• Preventive detention occupies one of the most contested and troubling spaces in India’s constitutional framework.
• Conceived as an emergency mechanism to preserve public order, it has instead evolved into a persistent threat to civil liberties, a Bermuda Triangle where fundamental rights such as liberty, equality, and due process vanish without a trace.
• Despite periodic judicial assertions affirming the sanctity of individual freedom, preventive detention remains deeply entrenched in the Indian legal order, revealing a structural tension between constitutional ideals and executive convenience.

Judicial Caution and Its Limits

• Recent Supreme Court rulings, notably Dhanya M. v. State of Kerala (2025), S.K. Nazneen v. State of Telangana (2023), and earlier decisions such as Banka Sneha Sheela (2021) and Rekha v. State of Tamil Nadu, reiterate that preventive detention should remain an exceptional measure, invoked sparingly and subject to rigorous constitutional scrutiny.
• The Court has repeatedly stressed the distinction between law and order and public order, cautioning that preventive detention cannot be used as a shortcut to bypass criminal trials or bail proceedings.
• Yet, these judicial pronouncements have done little to restrain executive overreach.
• State laws such as the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA) deploy sweeping definitions of goonda and rowdy, transforming preventive detention from an extraordinary safeguard into a routine policing instrument.
• The persistent misuse of such laws underscores a profound dissonance between constitutional theory and administrative practice.

A Colonial Legacy and Constitutional Embedding

• The genealogy of preventive detention traces back to the colonial Bengal Regulations of 1818, designed to entrench imperial control.
• Independent India, despite its democratic aspirations, retained this colonial relic with striking zeal.
• The Constituent Assembly debates exposed deep anxiety about embedding such a measure within the constitutional text.
• While some members viewed it as a temporary necessity, others, such as Somnath Lahiri, warned that Article 22 would turn the Constitution into a Police-Constable Constitution.
• The Supreme Court’s decision in K. Gopalan v. State of Madras (1950) cemented this separation, holding that preventive detention could only be tested under Article 22 and not against Articles 14, 19, or 21.

The Constitutional Bermuda Triangle

• The Gopalan judgment effectively isolated preventive detention from the rest of the fundamental rights framework, turning Article 22 into what scholars have called a constitutional Devil’s Island.
• Even the watershed ruling in Maneka Gandhi v. Union of India (1978), which redefined Article 21 to include fairness, reasonableness, and due process, failed to fully penetrate the fortress of preventive detention.
• In A.K. Roy v. Union of India (1982), the Court reverted to pre-Maneka reasoning, excluding preventive detention laws from the ambit of Articles 14 and 19 and refusing to apply the doctrine of proportionality.
• Thus emerged a disturbing constitutional geography: the Golden Triangle of Articles 14, 19, and 21, the cornerstone of fundamental rights jurisprudence, stands eclipsed by the Bermuda Triangle of Article 22, where the rule of law gives way to executive discretion.

The Philosophy of Pre-Crime

• The dystopian logic of preventive detention finds an evocative parallel in Steven Spielberg’s Minority Report (2002), adapted from Philip K. Dick’s story of pre-crime policing.
• The film’s portrayal of individuals punished for crimes not yet committed mirrors the legal fiction underlying preventive detention: the substitution of suspicion for proof, and prediction for guilt.
• In India’s preventive detention regime, the subjective satisfaction of the detaining authority functions much like the Pre-Crime unit’s fallible predictions.
• The sponsoring authority, detaining authority, and advisory board form an ecosystem of suspicion, often targeting political dissenters or marginalised groups.
• The absence of robust procedural safeguards, combined with the limited scope of judicial review, transforms preventive detention into a form of state-sanctioned pre-emptive justice — one that privileges control over constitutionality.

The Way Forward: Toward Constitutional Redemption

• The Supreme Court’s recent interventions, including Dhanya M., offer a faint glimmer of hope.
• By reaffirming that preventive detention must not substitute due process, the Court hints at a possible reconciliation between state security and individual liberty.
• Yet, genuine reform requires more than judicial restraint; it demands a constitutional re-examination of K. Gopalan and A.K. Roy, which continue to legitimise the preventive state.
• If preventive detention is to remain within the constitutional framework, it must be confined to the gravest threats, terrorism, espionage, and transnational organised crime, and fortified with stringent procedural safeguards.
• Routine administrative invocation dilutes both the gravity of the measure and the moral authority of the Constitution itself.

Conclusion

• Preventive detention stands as India’s enduring constitutional paradox, a measure designed to preserve order but which often subverts justice.
• Its historical roots, judicial entrenchment, and political misuse together reveal how easily liberty can yield to expediency.
• As long as Article 22 remains insulated from the unifying principles of fairness and equality, India’s constitutional democracy will coexist uneasily with its authoritarian shadow.