The Role of Preventive detention in the Criminal Justice System: Necessity or Misuse

This study critically examines the contentious role of preventive detention within India’s criminaljustice system. Unlike punitive detention, which follows due process and a proven criminal act,preventive detention permits the state to detain individuals based on anticipated threats to public orderor national security, often without trial or formal charges. Rooted in colonial-era laws like the “RowlattAct and retained post-independence under Article 22 of the Indian Constitution”, preventive detentionraises deep concerns regarding civil liberties, procedural fairness, and state overreach. Through anexploration of key legislations such as the “National Security Act (NSA), the Public Safety Act (PSA),and aspects of the Unlawful Activities (Prevention) Act (UAPA)”, the paper identifies how these lawshave been repeatedly invoked to target dissenters, marginalized communities, and protestors. Judicialinterpretations from “A.K. Gopalan to Maneka Gandhi and Rekha” highlight a gradual shift fromformal to substantive due process, yet the executive's wide discretion continues to undermine judicialsafeguards. Empirical trends and case studies, particularly in Jammu & Kashmir, Uttar Pradesh, andDelhi, reveal the use of preventive detention as a tool of convenience rather than necessity.Comparative international analysis further demonstrates India's deviation from global human rightsstandards. The paper concludes with concrete policy and legal recommendations aimed at reinforcingaccountability and preserving constitutional freedoms.