Can a democracy justify imprisoning its citizens not for what they have done, but for what they might do? Preventive detention remains one of the most paradoxical features of India’s constitutional framework. While the Constitution guarantees personal liberty under Article 21, it simultaneously permits the State to detain individuals without trial under Article 22. In 2025, the continued reliance on such laws raises uncomfortable questions about their necessity in a democratic society.
Originally justified on grounds of national security, preventive detention laws are now frequently invoked in routine law-and-order situations. This shift dilutes the exceptional nature of such powers. The Supreme Court has repeatedly cautioned against their misuse, notably in Rekha v. State of Tamil Nadu, emphasizing that detention cannot substitute ordinary criminal procedure.
Yet, the practice persists. The absence of timely judicial review and vague standards like “public order” create space for executive overreach. In effect, individuals are punished without conviction, undermining the presumption of innocence.
A constitutional democracy cannot function on anticipatory punishment. Preventive detention, as it operates today, reflects a colonial legacy that prioritizes control over liberty. It is time to revisit its scope and restore the balance between State power and individual freedom.