Safeguarding Constitutionalism: A Critical Examination of Preventive Detention under

Article 22 and the National Security Act, 1980

Dr. Bhimrao Ramji Ambedkar rightly dissented ~ “Constitutional morality is not a natural
sentiment. It has to be cultivated. We must realise that our people have yet to learn it.
Democracy in India is only a top-dressing on an Indian soil which is essentially
undemocratic.”1

The concept of constitutionalism is a quasi-corporeal system that has provided legitimacy to

democracy in India and to its government for nearly 75 years, even as of now. Bharat has
built its foundation on the pillars of constitutionalism reflected in the basic structure. Which
the people hold so sacrosanct that it is considered to be a natural relic fundamental to the
governance of our country.

This pillar has been responsible for numerous constitutional safeguards. One such is
Preventive Detention which refers to the custodial detention of a person by the State, without
any forms or means of trial and prosecution for conviction. This is largely recognised based
on the theory of suspicion with reference to threat to national security and other imperative
national parameters which may further even broaden to diplomatic relations. The objective of
preventive detention measures is often misconstrued since the aim of preventive detention
measures is to prevent a person from committing an offence. It aims at anticipating that a
person might commit an offence in the future and thus, detains them to prevent them from
committing the aforesaid ex-ante offence. The preventive detention measures are not intended
to be applied in cases of ordinary and general breaches of law and order.

The National Security Act, 19802 was passed with the aim of maintaining law and order in the
country as well as to combat terrorism. These issues for which the act was so resolved are in
the interest of the integrity and security of the State and its people. For this purpose, it also
authorises the preventive detention of any person as a necessary measure by the State for the
State and to secure the State. Herein, the definition of State is not only restricted to the
interpretations of Article 123 but also to the wider citizens of the State.

[4]
In Union of India v. Yumnam Anand , the court reiterated the principles of preventive
detention. Stating that no offence is proved and that nor any charge is formulated and the

1
B. R. Ambedkar, Annihilation of Caste (1936).
2
The National Security Act, 1980, No. 65, Acts of Parliament, 1980 (India).
3
India Const. art. 12.
4
Union of India v. Yumnam Anand (2007) 10 SCC 190
justification of such detention is suspicion or reasonability and there is no criminal
conviction. Since, preventive justice is an aspect of such detention it also requires an action to
be taken to prevent apprehended objectionable activities against the State.

Therefore, preventive detention involves proactive actions to avert anticipated harm or

objectionable activities often through combination of legal measures and ongoing evaluation.

Constitution in Conflict

The Constitution of India in its Part III “Fundamental Rights” mentions of Article 225 under
the sub-classification “Right to Freedom”. These sub-classifications of fundamental rights
establish the character, function and nature of their individual liberties guaranteed by the
state, against the state. Specifically, “Right to freedom” comprises of Articles 19-22. Articles
196, 207 and 218 consist of the most imperative and basic rights which are fundamental to
both human rights and fulfilling the aims of the Constitution (Forty-second Amendment) Act,
19769. Wherein, the words “SOCIALIST” & “SECULAR” were added to the preamble to
further enhance the character of India, that is Bharat10.

However, Article 22 enshrines “Protection against arrest and detention in certain cases”. The
fundamental right speaks largely with relations to ‘preventive detention’ beginning from
Article 22(3)11 till the end which is 22(7) 12. The intricate relationship between the National
Security Act, 1980 (supra) and the Article 22 of the Constitution of India is stipulated by
Article 22(6)13 largely. Clause (6) of Article 22 entails: to interpret nothing in clause (5) 14 for
the authority who makes such preventive detention order and not disclose the material facts
or grounds of the detention order to the detainee, if it is found to be against the public interest
to disclose.

This interpretation is exactly given in Section 8 (2) 15 of the National Security Act, 1980.
Which also word by word establishes to not interpret its preceding clause and not disclose
grounds of detention to the detainee if found to be against public interest. The authority
5
India Const. art. 22.
6
India Const. art. 19, cl. 1(a).
7
India Const. art. 20, cl. 1.
8
India Const. art. 21.
9
India Const. Preamble, amended by The Constitution (Forty-second Amendment) Act, 2000.
10
India Const. art. 1.
11
India Const. art. 22, cl. 3.
12
India Const. art. 22, cl. 7.
13
India Const. art. 22, cl. 6.
14
India Const. art. 22, cl. 5
15
The National Security Act, 1980, No. 65, Acts of Parliament, 1980, §8(2).
which makes such order has every right in its locus standi to interpret if such threat exist and
determine whether to support its arbitrary power enshrined in Article 22(6) and Section 8 (2)
of the National Security Act, 1980.

The constitutional morality of such preventive detention measures has been highly
controversial since it illustrates possibilities of the abuse of due process, arbitrary abuse by
the executive and social collusion by the political environment. Therefore, the legislature has
witnessed various attempts wherein, only few were successful in overturning late Sardar
Vallabhbhai Patel’s Preventive Detention Bill, 1950 when he was the union Home Minister in
195016. The bill which he introduced ascended to become the infamous Preventive Detention
Act, 195017 which has been a crucial aspect of several landmark cases with reference to civil
liberties. With evolution, the legislative act evolved into the National Security Act, 1980
which continues to be the legislation in pursuance for matters related to preventive detention.

Established Unconstitutionalism of Preventive Detention

The judiciary in entirety have delivered several landmark decrees that establish the actual
interpretation of preventive detention and how the State defined under Article 12 must
exercise such power.

Although, in Smt. Vasnthu Sumalatha vs State Of Andhra Pradesh Rep. 18, Justice Ramesh
Ranganathan referred to R. v. Secy. of State for the Home Deptt., ex p Stafford 19, reminding
that acts of detention by behaviour and rationale violate every aspect of individual liberty. He
redirected to the principle that Article 21 is the most important of the fundamental rights
guaranteed by the Constitution of India. Liberty of a citizen is a most important right won by
our forefathers after long, historical, and arduous struggles. He delivered in his judgement
that “Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the
rule of law.”

Similarly, in Haradhan Saha v. The State of West Bengal 20, the bench echoed that personal
liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional
values that it is the obligation of the detaining authority to show that the impugned detention
meticulously accords with the procedure established by law.

16
Saggi, P.D. ed., 1950. Life and Work of Sardar Vallabhbhai Patel (pp. 86-86). Overseas Publishing House.
17
Preventive Detention Act, 1950, No. 4, Acts of Parliament, 1950 (India).
18
Smt. Vasnthu Sumalatha vs State Of Andhra Pradesh Rep. (2013) 8 SCC 664.
19
R. v. Secy. of State for the Home Deptt., ex p Stafford (1998) 1 WLR 503 (CA).
20
Haradhan Saha v. The State of West Bengal (1975) 3 SCC 198.
In, Vijay Narain Singh v. State of Bihar21, Justice Venkataramiah delivered a detailed scope of
jurisprudence on the dangerous extents of preventive detention, speaking for the majority.
Wherein, he called preventive detention laws as a ‘hard law’ and that the liberty of a person
cannot be jeopardised opening the scope to practice extreme caution and due care.

Necessity of State & Right of National Security

While, these verdicts set a particular tone and approach towards preventive detention and
custodial restrictions, the judiciary has also painted a clearer picture of why such measures
came into existence in our constitution and justified as to why it still exists today.

In M.S. Sheriff v. State of Madras22, the Hon’ble Supreme Court of India upheld the validity
of preventive detention as a measure that should be used in cases where there is a clear and
imminent danger to public safety or order. Similarly, in State of Punjab v. Balbir Singh 23, the
court opined that the Act is not violative of fundamental rights enshrined in the Constitution.
The main issue in the case was whether the constitutionalism of the Act and it being violative
of Article 21. The Court held that the Act is a preventive detention law and is not punitive in
nature, since the National Security Act is not violative of the right to equality under Article
1424. It acknowledged the need to balance national security concerns with the preservation of
individual liberties. The provision ensures that detentions are only made when there are
legitimate national security apprehensions.

In the case of Dropti Devi v. Union of India 25, it was righteously held that there is no
constitutional mandate that preventive detention cannot exist for. And that an act where such
act is not a criminal offence and does not provide for punishment. An act may not be declared
as an offence under law but still for such an act, which is an illegal activity, the law can
provide for preventive detention if such act is prejudicial to State security. After all, the
essential concept of preventive detention is not to punish a person for what he has done but to
prevent him from doing an illegal activity prejudicial to the security of State. Strictly
speaking, preventive detention is not a regulatory abuse but instead it has been viewed as
something much more serious than taking away the liberty of a person. Furthermore, it is
accepted as a necessary evil to prevent danger to the community. The law of preventive
detention arms the State with precautionary action and must be seen as such. Of course, the
21
Vijay Narain Singh v. State of Bihar (1984) 3 SCC 14.
22
M.S. Sheriff v. State of Madras, 1954 SCR 1144.
23
State of Punjab v. Balbir Singh, (1994) 3 SCC 299.
24
India Const. art. 14.
25
Dropti Devi v. Union of India, (2012) 7 SCC 499.
safeguards that the Constitution and preventive detention laws provide must be strictly
insisted upon whenever the court is called upon to examine the legality and validity of an
order of preventive detention. Preventative detention is a drastic measure but is essential to
prevent individuals from engaging in activities that could harm the nation.

Section 3 of the Act26 states that if the central government or the state government feels the
necessity or has satisfactory evidences against a particular citizen, foreigner, or alien, who
poses a threat to the national security of the country, then to prevent the threat the person can
be detained to prevent the greater harm. It is a necessary step taken by the government to curb
and prevent the greater harm from happening.

Furthermore, while preventive detention is an exception to the general rule of liberty, it does
not violate the principle of fairness and natural justice. The government considers the detenu's
right to representation before making a final decision on the detention order. This acts as a
surety that the detenu’s right to liberty under Article 21 is not violated. Also, the right to
personal liberty comes with reasonable restrictions so that it is not misused. The constitution
in itself provides for preventive detention in article 22.

In Francis Coral Mullin v. Administrator27, also known widely as the ‘U.T. of Delhi Case’, the
interrelation between Articles 21 and 14 was brought out by Justice Bhagwati when he
dissented that right of detenu to consult a legal adviser is available in securing release from
preventive detention as well.

Conclusion

To conclude, the judiciary has emphasized that while preventive detention seems to create a
hazard to the fundamental rights under Part III, it maybe typically authorized under specific
circumstances28. Wherein, there is credible information of threat to national security. Since, it
limits the scope for abuse, justifies protection of the fundamental rights of other citizens and
nationals of India. While, also enhancing the scope of Article 50 29 reciprocating the values of
the doctrine of separation.

26
The National Security Act, 1980, No. 65, Acts of Parliament, 1980, §3.
27
Francis Coral Mullin v. Administrator, Union Territory of Delhi (1981) 1 SCC 608.

28
Krishan, Dr. G. (2019) ‘Preventive Detention in India: A Legal Perspective’, International Journal of
Reviews and Research in Social Sciences., 07(02), pp. 453–456. doi:10.5958/2454-2687.2019.00036.4.

29
India Const. art. 50.
Although, while such ‘hard laws’ are unacceptable for being ultra vires to the basic structure.
There still exist numerous procedural improprieties that can be adjusted to fix super structure
issues. And this principle has been effectively proven by Justice P. N. Bhagwati to protect
fundamental rights by exploring alternative procedural provisions.

Lest, the writ of Habeus Corpus which enables judicial review is maintained with the
supremacy of the constitution and the rule of law. All of which not only echoes of the basic
structure but is available in cases of preventive detention.

Therefore, both the decision-making organs of the State have achieved something
extraordinary in today’s time. Which is them being in absolute and total agreement with each
other for a settled law that the National Security Act, 1980 and Article 22(6) are in an innate
balance providing for national security and individual rights, as permitted by the Constitution
itself. Therefore, the author holds that the controversial debate of ‘constitutionalism’ and
‘constitutional morality’ is put to an immediate end, when the constitution which is the
mother of all laws is put to question on its capacity.