Introduction

In June 2025, a Bench of the Supreme Court (Justices Sanjay Karol and Manmohan) sternly rebuked States for using preventive detention orders as a bail‑snare. In Dhanya M v. State of Kerala (2025), the Court quashed a six‑month detention of a Kerala moneylender already on bail, noting that authorities “should have moved the competent court seeking cancellation of bail” rather than resorting to detention. The Court emphasised that preventive detention is an “extraordinary power” under Article 22(3)(b) of the Constitution that “must be used sparingly”. These observations have sparked debate about the scope and abuse of India’s preventive detention laws, making this issue a hot topic in both public and legal circles.

Background

Preventive detention allows the State to detain a person not as punishment, but to prevent future harm. Unlike ordinary (punitive) custody after conviction, preventive detention is a precautionary measure. As one legal commentary explains: “the objective of punitive laws is to punish a person who has already committed an offence; the objective of preventive detention is not to punish a person who has already done something but to intercept or prevent him from doing something which may be reasonably suspected of harming society or endangering government security”. The Constitution expressly recognises this power. Article 22(3)(b) permits Parliament to legislate for preventive detention; the Supreme Court stressed that this is an exceptional power that curtails liberty and “must not be used in the ordinary course”.

Major preventive detention statutes include the National Security Act, 1980 (a central law applicable nationwide) and various State “goonda” or anti‑social activities laws (e.g. the Kerala Anti-Social Activities (Prevention) Act, 2007 used in Dhanya M). Article 22 provides safeguards: e.g. a detainee must be informed of the grounds (with some public-interest exceptions) and can make representations to an Advisory Board. In practice, however, these safeguards depend on rigorous enforcement. As noted by commentators, preventive detention laws have no fixed definition in statute and survive as a colonial legacy. The Indian courts have long distinguished them sharply from ordinary criminal law: preventive detention is, by design, not punitive. It is justified only by real threats to “public order” or security, not mere law‑and‑order breaches.

Landmark Judgments

India’s judiciary has issued many rulings on preventive detention. Among the most significant are:

• Ram Manohar Lohia v. State of Bihar (1966): A seven‑Judge bench held that every breach of peace does not permit preventive detention. To detain someone preventively, their acts must have a “tendency to disturb the public order.” The Court warned that PD is a “harsh measure” and cannot be invoked for ordinary law‑and‑order issues.
  
• Prem Narayan v. Union of India (Allahabad HC, 2022): The Uttar Pradesh High Court observed that preventive detention is inherently an “infringement upon the personal freedom of an individual” and “cannot be infringed in an easy‑going way”. The court lamented that, in practice, judges too often treat detention orders too lightly.
  
• Dhanya M v. State of Kerala (2025): The Supreme Court quashed the detention of a private moneylender under the Kerala ASA, stressing that he was already on bail in all cases. The Court held that PD is a “constitutional exception” and “not a substitute for the regular criminal process”. The Bench noted the State had not even sought bail cancellation and that no concrete evidence was shown of any public‑order threat.
  

(Other essential decisions include A.K. Gopalan v. State of Madras (1950) and Kedar Nath Singh v. State of Bihar (1962), which upheld PD laws in principle, and Charu Khurana v. Union of India (2003), which upheld the NSA but limited its use. The courts have insisted on strict procedures: detaining authorities must promptly justify detention to advisory boards, record concrete grounds, and not treat PD as routine.)

Analysis: Misuse and Implications

Scholars and jurists have long warned that preventive detention can be politically abused. Drishti IAS notes that these laws have often been used “in a vindictive manner” – for example, governments using the National Security Act to jail political opponents or journalists. In 2020–21, several State governments faced criticism for invoking the NSA against critics of lockdowns or policy. In such cases, detention has undermined fair process and targeted dissent. Courts have generally frowned on this: for instance, they have struck down detentions motivated by vendetta rather than a genuine threat.

Recent Patterns, The Dhanya M case is a prime example of a new pattern: using PD to extend custody beyond bail. In that case, Kerala authorities branded a small-time finance company owner “notorious” under the ASA 2007, detaining him for six months despite bail in all criminal cases. The Supreme Court held this to be a misuse. The Bench flatly observed that if the detainee violated bail conditions, “they should have moved the competent court seeking cancellation of bail”. Instead, the State had bypassed the criminal process. The Court reiterated that PD “curtails the liberty of an individual in anticipation of the commission of further offence(s)” and thus “must not be used in the ordinary course of nature”.

Supreme Court’s Current Remarks. The recent observations make clear that States cannot treat preventive detention as a backdoor punishment. By rescinding the detention order, the Court signalled that mere allegations or broad threats are insufficient. In Dhanya M, the absence of any bail‑revocation petition or advisory‑board review was highlighted – the government had “failed to demonstrate” any concrete danger to public order from the detainee. In short, the SC reminded all branches of government that PD must be justified by strong facts, not assumptions or convenience.

Implications:

• For the Judiciary: Courts will likely scrutinise future detention orders more rigorously. They may demand tangible evidence of “public order” risk and strictly enforce the statutory advisory‑board checks. Judges now have the apparent authority to quash essentially punitive detentions.
  
• For the Executive: Authorities must be cautious. Before detaining someone, they must consider (and preferably try) ordinary remedies: prosecute the offender, seek bail cancellation, impose conditions, etc. Using detention as a workaround may render an order invalid. In practice, police and magistrates must now ensure that if a detainee is on bail, a formal cancellation application is filed, or detention can be struck down.
  
• For Law Enforcement: These observations act as a warning. Officers cannot simply relabel a criminal as a “goonda” or threat and lock them up after bail. Training and protocols may be needed to remind magistrates and detaining authorities of the proper procedure. Misuse of PD powers – for trivial, vindictive or ill‑defined reasons – risks judicial censure and loss of detention powers in that case.
  

From a broader perspective, the Court’s remarks reaffirm that preventive detention is an exceptional remedy. As one commentator said, it “curtails liberty… and therefore must not be used in the ordinary course”. By flagging these abuses, the Supreme Court is strengthening the rule of law: liberty cannot be taken lightly or made the norm. However, it also underscores the need for systemic reforms.

Conclusion and Reforms

The Dhanya M case delivers a clear message: preventive detention must target genuine threats, not serve as a convenient tool to circumvent bail or silence critics. Key takeaways are: PD orders must be backed by concrete material of public‑order risk; detention cannot replace criminal procedure; and bail violators should be dealt with through bail cancellation, not detention.

To prevent abuse, reforms are needed. Experts recommend:

• Uniformity: Adopt a model PD law or guidelines to govern detentions nationwide by clear, consistent standards. Different States have varying laws (goonda acts) with broad definitions, inviting arbitrary use.
  
• Narrow Grounds: Statutes should define “danger to public order” or similar terms more precisely. Vague terms (like “nuisance” or “habitual offender”) should be trimmed to reduce pretextual detentions.
  
• Strict Oversight: Ensure Advisory Boards and courts actively review every detention. Detained persons must be promptly informed of the reasons and given a real hearing. Courts may institute time‑bound reviews to limit prolonged detentions.
  
• Training and Accountability: Authorities should be trained to “act proportionately” and not use PD for vendettas. If misuse occurs, officials should be answerable (through departmental action or courts).
  

The Supreme Court has reaffirmed that personal liberty is paramount and preventive detention is a constitutional exception. Its recent pronouncements remind the judiciary, the executive, and law enforcement that extraordinary power comes with exceptional responsibility. By insisting on strict adherence to process and purpose, the Court paves the way for a balanced approach: detain only when truly necessary, and otherwise uphold the liberty that is the rule under our Constitution.

About the Author 

Ruhan Deb is a third-year law student at Symbiosis Law School, Noida. He is keenly interested in litigation, focusing on Criminal Law and Competition Law. Beyond the legal realm, Ruhan is passionate about global politics and history, complementing his analytical approach to legal studies. His multidisciplinary interests reflect a commitment to understanding law in broader social and geopolitical contexts.