Judicial Review Of Preventive And Security- Based Detention In India: Paradox Of Personal Liberty And National Security
- IJLLR Journal
- 7 days ago
- 1 min read
Anshika Parashar, Law Centre II, University of Delhi
ABSTRACT
The bedrock of Indian democracy is the promise of personal liberty under Article 21. However, this promise is increasingly strained by the "necessary evil" of preventive detention. Preventive detention constitutes one of the most drastic departures from the constitutional guarantee of personal liberty in India. Although the Constitution explicitly permits preventive detention under Article 22, such power was intended to operate as an exceptional measure subject to strict procedural and judicial safeguards. Over time, however, the combined effect of executive discretion, deferential judicial review, and the expansion of national security legislation has resulted in the dilution of meaningful protection of liberty. This article critically examines the evolution of judicial review of preventive detention in India, tracing its trajectory from the formalistic approach adopted in early constitutional jurisprudence to the substantive due process framework articulated in later cases. It argues that despite this doctrinal evolution, courts have often prioritised national security considerations over individual liberty. The article further contends that contemporary security statutes, particularly the Unlawful Activities (Prevention) Act, 1967, have created a regime of de facto preventive detention through prolonged pre-trial incarceration and restrictive bail provisions. While traditionally understood as a short-term measure to prevent imminent harm, the application of the Unlawful Activities (Prevention) Act (UAPA) has effectively created a system of "judicial preventive detention."By situating Indian detention jurisprudence within international human rights standards, the article calls for a reassertion of substantive judicial review, robust proportionality analysis, and periodic judicial oversight.
