Preventive detention laws in India are incompatible with a liberal constitutional democracy. Critically analyse with reference to recent cases.

Q. Preventive detention laws in India are incompatible with a liberal constitutional democracy. Critically analyse with reference to recent cases. (15 marks, 250-350 words)

Preventive detention — confinement on suspicion of future harm, without charge or trial — is the rare illiberal power written into Part III itself, through Articles 22(3)–(7) [1]. India is among the few democracies permitting it in peacetime. The incompatibility, however, lies more in its practice than in its bare text.

The case for incompatibility - Inversion of due process: the NSA, 1980 allows detention up to 12 months without trial on the detaining authority's subjective satisfaction, reversing the presumption of innocence [2]. - Weak adjudication: the Advisory Board is executive-appointed, and A.K. Roy v Union of India (1982) held that a detenu has no right to legal representation before it [3]. - Chilling effect on dissent: in September 2025, Ladakhi climate activist Sonam Wangchuk was detained under the NSA amid the Statehood and Sixth Schedule agitation; the Article 32 habeas corpus plea was closed only after the Centre revoked the order, leaving its merits unexamined [6]. - Poor record: NCRB Prison Statistics India, 2022 shows 72.8% of detenues were released before completing their detention period — detentions rarely survive scrutiny [5].

The countervailing case - Constitutional safeguards exist: grounds must be communicated, representation allowed, and detention beyond three months needs Advisory Board approval under Article 22(4)–(5) [1]. - Judicial review bites: in Jaseela Shaji v Union of India (2024), the Supreme Court quashed a COFEPOSA detention for non-supply of relied-upon documents and delay in deciding the representation [4]. - Security necessity: in sensitive border regions such as Ladakh along the LAC, ordinary criminal process may be too slow for genuine threats — the reason the Constituent Assembly retained the power.

Thus the conflict is not with the constitutional text but with its routine, poorly-reasoned invocation against civil protest. Restoring compatibility requires narrowing statutory grounds, a judicial member on Advisory Boards, full disclosure of relied-upon material, and periodic parliamentary review. Preventive detention must remain a narrow exception to Article 21, not a substitute for policing dissent — the standard SDG 16 sets for rule-of-law institutions.

(~320 words)

Sources: 1. The Constitution of India — Article 22, Legislative Department, Ministry of Law & Justice — preventive detention safeguards: grounds, representation, Advisory Board 2. The National Security Act, 1980 (Act 65 of 1980), India Code — maximum 12-month detention without trial on subjective satisfaction 3. A.K. Roy v Union of India (1982), Supreme Court of India — Digital Supreme Court Reports — NSA upheld; no right to counsel before Advisory Board 4. Jaseela Shaji v Union of India, 2024 INSC 683, Supreme Court of India — detention quashed for non-supply of documents and delayed representation 5. Prison Statistics India 2022, National Crime Records Bureau — 72.8% of detenues released before completion of detention period 6. "Authorities 'hid' my calls for peace: Wangchuk" — The Hindu, news report, 9 January 2026 (link not retrievable at time of writing) — NSA detention of Sonam Wangchuk and the Article 32 habeas corpus proceedings