Why in News?

Climate activist Sonam Wangchuk was detained under the National Security Act (NSA), 1980, a law that permits preventive detention to avert potential threats to public order or national security.
He has been leading protests demanding statehood for Ladakh and Sixth Schedule protections, bringing renewed attention to the constitutional limits and misuse concerns surrounding preventive detention laws.

What is Preventive Detention?

Preventive detention refers to the detention of a person not for an offence already committed, but to prevent the possibility of future actions that may threaten:

• Public order
• Security of the State
• Essential supplies and services

It is anticipatory in nature, unlike punitive detention, which follows conviction after trial.

Constitutional Provisions (Article 22)

The Indian Constitution explicitly permits preventive detention under Article 22, subject to safeguards:

• A person may be detained up to 3 months without Advisory Board approval
• Detention beyond 3 months requires review by an Advisory Board comprising judges qualified to be High Court judges
• Parliament may:
  • Prescribe maximum detention periods
  • Lay down procedures for Advisory Boards
• The detainee must be:
  • Informed of the grounds of detention (except facts withheld in public interest)
  • Given the earliest opportunity to make a representation against the detention

Significance of Preventive Detention

Preventive detention supports Article 355, which places a duty on the Union to:

• Protect states against external aggression and internal disturbances
• Ensure state governments function according to the Constitution

Thus, it is constitutionally justified as an exceptional security measure, not a routine policing tool.

Major Preventive Detention Laws in India

• National Security Act (NSA), 1980 – Public order and national security
• Unlawful Activities (Prevention) Act (UAPA), 1967 – Terrorism and unlawful activities
• COFEPOSA Act, 1974 – Smuggling and foreign exchange violations
• State-level Public Safety Acts – State-specific security threats

Supreme Court on Preventive Detention

The Supreme Court has consistently held preventive detention to be an exception to personal liberty under Article 21:

• Anukul Chandra Pradhan (1997):
  Preventive detention is preventive, not punitive
• Rekha v. State of Tamil Nadu (2011):
  It must be used rarely and only in exceptional circumstances
• Ameena Begum v. State of Telangana (2023):
  Preventive detention should not be used routinely and is meant for emergencies

What is the National Security Act, 1980?

Background

• Preventive detention laws existed during colonial rule
• Post-Independence:
  • Preventive Detention Act, 1950
  • Maintenance of Internal Security Act (MISA), 1971 (misused during Emergency, repealed in 1978)
• NSA enacted in 1980 to replace MISA

Key Provisions of NSA

• Empowers:
  • Central Government
  • State Governments
  • District Magistrates
  • Authorized Police Commissioners
• Detention permitted to prevent actions prejudicial to:
  • Defence of India
  • Foreign relations
  • Security of the State
  • Public order
  • Essential supplies

Procedure under NSA

• Detention order operates like a warrant of arrest
• Grounds of detention to be communicated within 5–15 days
• Advisory Board must review the case within 3 weeks
• If no sufficient cause is found → mandatory release
• Maximum detention period: 12 months (revocable earlier)

Limitations and Concerns

• No legal representation before the Advisory Board
• Government may withhold information citing “public interest”
• Wide discretionary powers → risk of misuse against dissent
• Raises concerns over civil liberties and democratic accountability

Frequently Asked Questions (FAQs)

1. What is preventive detention?
Detaining a person to prevent potential future threats, not as punishment for a crime.

2. Which constitutional article governs preventive detention?
Article 22 of the Constitution.

3. What is the National Security Act, 1980?
A preventive detention law empowering authorities to detain individuals to protect national security, public order, and essential supplies.

UPSC PYQ (Prelims)

Q. Consider the following statements:

1. According to the Constitution of India, the Central Government has a duty to protect States from internal disturbances.
2. The Constitution of India exempts the States from providing legal counsel to a person being held under preventive detention.
3. According to the Prevention of Terrorism Act (POTA), 2002, a confession made by the accused to the police cannot be used as evidence.

How many of the above statements are correct?

(a) Only one
(b) Only two
(c) All three
(d) None

Answer: (b)