Effectiveness of Preventive Detention in Safeguarding Public Order: A Critical Study
Aarti Chauhan, Dr. Manpreet Kaur
1.1 ABSTRACT
Preventive detention represents one of the most contested intersections between State power and individual liberty in India’s constitutional scheme. Authorised as an exceptional measure, it permits the executive to restrain personal liberty without trial in order to forestall threats to public order, national security, and essential services. This study critically examines the effectiveness of preventive detention in safeguarding public order, while assessing whether its contemporary design and implementation maintain a constitutionally defensible balance with fundamental rights. Anchored in Articles 21 and 22 of the Constitution of India, the analysis situates preventive detention within the post–Maneka Gandhi rights jurisprudence that mandates fairness, reasonableness, and proportionality in all deprivations of liberty.
Using a doctrinal methodology, the study evaluates the statutory frameworks governing preventive detention, including the National Security Act, 1980, COFEPOSA, PITNDPS, and the Jammu and Kashmir Public Safety Act, alongside the preventive alternatives embedded in the Bharatiya Nagarik Suraksha Sanhita, 2023. Judicial interpretations on the meaning of public order, the limits of executive satisfaction, detention of persons already in custody, and the relationship between preventive and punitive processes are critically analysed to determine whether detention genuinely functions as a preventive tool rather than a substitute for ordinary criminal law.
The study argues that preventive detention can be effective in narrowly defined, time-sensitive contexts marked by imminent threats and specific intelligence, but its broader deployment raises serious concerns regarding overbreadth, opacity, and civil liberties. The absence of transparent, disaggregated data further undermines claims of efficacy. The paper concludes that preventive detention retains constitutional legitimacy only when used as a last resort, supported by strict procedural fidelity, meaningful oversight, and demonstrable inadequacy of less restrictive alternatives.
