The Scope and the Limits of the Power
Chapter Forty-Three
Syllabus topic 2, "Preventive Detention and Indian Constitution"
Pages 193 to 196 of 657
In one line
The power reaches any person, on six grounds, in ordinary times, for up to a year, and it is stopped by five different kinds of limit.
In the wording a student can write in an exam: the scope of the preventive detention power in India is defined by four things, namely who may be detained, on what grounds, by whom, and for how long. Its limits are of five kinds: constitutional limits in article 22 and in the rest of Part III; legislative competence limits in Entry 9 of the Union List and Entry 3 of the Concurrent List; statutory limits in the Act itself; judicial limits derived from articles 14, 21 and 22 read together; and the practical limit that the power must be shown to be necessary because the ordinary law will not answer.
Scope: how far the power reaches
Who. Any person, and section 2(d) of the National Security Act 1980 provides that person includes a foreigner. There is no exemption by status. A member of Parliament, a journalist and a former judge are all within the power.
On what grounds. Six under the National Security Act: the defence of India, the relations of India with foreign powers, the security of India, the security of the State, the maintenance of public order, and the maintenance of supplies and services essential to the community, plus the foreigner provision in section 3(1)(b). Other Acts add their own: smuggling and foreign exchange under COFEPOSA, illicit traffic in narcotics under the PIT NDPS Act, and the defined classes under a State Act.
By whom. The Central Government or a State Government; a District Magistrate or Commissioner of Police specially empowered in writing under section 3(3) of the National Security Act; and, under COFEPOSA, an officer of the Centre not below Joint Secretary or of a State not below Secretary, specially empowered.
For how long. Twelve months under the National Security Act; one year, or two in a section 9 case, under COFEPOSA; whatever a State Act fixes within article 22.
In what circumstances. In ordinary times. No proclamation of emergency is required, and that is what makes Indian preventive detention unusual: in most constitutional systems a comparable power exists only in an emergency.
Limitation: what stops the power
1. Constitutional limits. Article 22(4) fixes three months without a favourable Board report. Article 22(5) requires grounds and a representation. Article 22(7) restricts the exceptions to Parliament. Beyond article 22, articles 14 and 21 apply after Maneka Gandhi v. Union of India, AIR 1978 SC 597, so the procedure must be right, just and fair and the action must not be arbitrary. Articles 32 and 226 keep the courts open.
The Scope and the Limits of the Power
2. Competence limits. A State cannot use the Entry 9 grounds. Parliament and the States share Entry 3. Article 254 resolves a clash.
3. Statutory limits. Every period in the Act is a limit: twelve days for approval, five or fifteen days for grounds, three weeks to the Board, seven weeks for the report, twelve months in all. So is the description of who may be empowered, and so is the requirement that the empowering order be in writing and for a limited period.
4. Judicial limits. The six rules in [The Safeguards Gathered, and the Safeguards Against Misuse], and the situational rules about custody and second orders.
5. The necessity limit. Section 3 permits an order only where the authority is satisfied that it is necessary to detain. Where the ordinary law would answer, and the State cannot say why it will not, the necessity is not made out. That is the limit doing the most work in the modern cases, and it is developed in the next chapter.
The one limit that does not exist
There is no limit by reference to the gravity of what is apprehended. The statute does not require that the anticipated harm be serious, only that it fall within a named head. In practice the concentric circles test supplies a threshold for the public order head, because conduct that does not reach the community is not within the ground at all. But there is no general proportionality requirement written into the detention statutes, and an answer that says there is would be overstating the law.
That is a real gap, and it is worth naming. Contrast the position under [National Security and the Freedom of Speech], where Anuradha Bhasin v. Union of India, AIR 2020 SC 1308, requires proportionality and the least intrusive measure of an executive order restricting freedoms. No equivalent has been read into section 3 of the National Security Act, though the necessity requirement does some of the same work.
A worked example that tests the boundaries
Which of these is within the scope of the power, and what limits bite?
A. A journalist whose reporting embarrasses the State Government. Within the scope in the sense that he is a person and the executive may form a satisfaction. Stopped by the limits: no named ground covers embarrassment, the order would be mala fide, and Vinod Dua v. Union of India, AIR 2021 SC 3239, shows the Court's approach to the criminal analogue.
B. A person acquitted last month of rioting, against whom fresh intelligence has been received about a planned communal attack. Within the scope. The acquittal is no bar. Limits: the ground must be public order and the material must show reach into the community; the live link must hold; the fresh intelligence must be material the authority actually considered.
The Scope and the Limits of the Power
C. A person already in judicial custody in a smuggling case. Within the scope. Limits: the three conditions in Kamarunnissa v. Union of India, AIR 1991 SC 1640.
D. A foreign national whose presence the Government wishes to regulate pending expulsion. Within the scope, expressly, under section 3(1)(b) of the National Security Act. Limits: the article 22(5) safeguards apply to him as to anyone else, and article 21 protects a person rather than a citizen.
E. A person who has been repeatedly granted bail in cases the State considers serious. Within the scope in principle, but this is the case in which the necessity limit bites hardest, because the record shows that the ordinary law has been invoked and has produced a result the State dislikes.
What it does NOT mean
Scope is not the same as validity. An order may be within the scope of the power and still bad for breach of a limit.
A wide scope is not an argument against the limits. The two are independent, and the answer to a question about scope should not slide into an argument about whether the power should exist.
The absence of a gravity threshold is not the absence of any threshold. The concentric circles test and the necessity requirement supply one in practice.
Limits are not only judicial. Four of the five kinds are found in the Constitution and the statutes.
Quick revision
- Scope: any person including a foreigner; six grounds under the NSA plus the statute-specific grounds elsewhere; the Governments and specially empowered officers; twelve months under the NSA; and all of it in ordinary times without any proclamation.
- Limits: constitutional, competence, statutory, judicial, and necessity.
- No gravity threshold is written into the statutes, and no general proportionality requirement has been read into section 3, though the concentric circles test and the necessity requirement do similar work.
- Contrast Anuradha Bhasin, which requires proportionality and the least intrusive measure of executive orders restricting freedoms.
Test yourself
1. What are the four elements of the scope of the power? Who may be detained, on what grounds, by whom, and for how long, with the further point that it operates in ordinary times without any proclamation.
2. Name the five kinds of limit. Constitutional, legislative competence, statutory, judicial, and the necessity requirement in the Act itself.
3. Is there a gravity threshold in the detention statutes? No. The statutes require the anticipated conduct to fall within a named head, not that it be serious, though the concentric circles test supplies a threshold for the public order head in practice.
The Scope and the Limits of the Power
4. Does the power extend to foreigners? Yes. Section 2(d) of the National Security Act provides that person includes a foreigner, and section 3(1)(b) contains a ground specific to foreigners.
5. In which situation does the necessity limit bite hardest? Where the ordinary criminal law has already been invoked and the State is dissatisfied with the result, because the record then shows that prosecution was available and the State must explain why it will not answer.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.