Preventive detention, often referred to as an extraordinary measure, allows the State to detain a person without trial in anticipation of potential threats to public order or national security. Unlike criminal prosecution, which is punitive and based on proven guilt after due process, preventive detention is precautionary. This power is constitutionally sanctioned under Article 22(3)(b) of the Indian Constitution, but its use continues to raise concerns about liberty, due process, and misuse by the executive.
The recent Supreme Court judgment in Dhanya M v. State of Kerala & Ors. (2025 INSC 809) throws fresh light on the tension between preventive detention and criminal prosecution, questioning whether the former can legitimately act as a substitute for the latter. This article analyses the judgment and evaluates the constitutional and judicial position on the misuse of preventive detention to bypass criminal law mechanisms.
Understanding Preventive Detention in Indian Law
Preventive detention permits the detention of individuals not for what they have done, but for what they might do. Unlike criminal laws that follow a punitive approach after trial and conviction, preventive detention seeks to stop the commission of an offence before it occurs.
Constitutional Sanction
Article 22(3)(b): permits preventive detention by excluding detenues from protection against arrest and detention under Article 22 clauses (1) and (2).
Article 22(5): Mandates the communication of grounds of detention and an opportunity to make a representation.
Key Statutes
- National Security Act, 1980 (NSA)
- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA)
- State-specific laws, such as the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA).
Facts of the Case: Dhanya M v. State of Kerala (2025)
The case concerns the preventive detention of Rajesh, a registered moneylender, under Section 3 of KAAPA. He was labelled a “notorious goonda” based on multiple criminal cases, including those under the Kerala Money Lenders Act and the IPC(BNS). The District Magistrate, Palakkad, ordered his detention, which was upheld by the Kerala High Court.
Key Charges Against Detenu
- Exorbitant interest lending.
- Assault and SC/ST (Prevention of Atrocities) Act violations.
- Multiple cases from 2020 to 2024.
Despite being on bail in all pending cases and allegedly complying with the bail conditions, the detenu was taken into preventive custody.
Supreme Court’s Observations
1. Preventive Detention as an Exception
The Court reaffirmed that preventive detention is a draconian power and must be treated as an exception. Citing Rekha v. State of Tamil Nadu (2011) 5 SCC 244, it emphasised that the liberty under Article 21 cannot be curtailed lightly.
2. Difference Between Public Order and Law and Order
The Court reiterated the test laid down in SK Nazneen v. State of Telangana (2023) 9 SCC 633:
- Law and order deal with individual acts affecting a few.
- Public order implies disturbances affecting the community at large.
- In Rajesh’s case, his actions, while possibly illegal, did not disturb public order or pose a threat to community peace.
3. Bail Not Cancelled by Court
Although the detaining authority claimed bail violations, the State did not apply for bail cancellation in any of the four pending cases. The Court held this as a misuse of preventive detention to bypass criminal prosecution.
4. Failure of Detaining Authority
The detaining authority failed to specify how the alleged acts of the detenu posed a real and present danger to public order. The subjective satisfaction was found to be vague and unsupported by facts.
Judicial Precedents Reaffirmed
- Banka Sneha Sheela v. State of Telangana (2021) 9 SCC 415: Detention orders quashed for confusing law and order with public order.
- Ameena Begum v. State of Telangana (2023) 9 SCC 587: Held that preventive detention should not substitute an appeal or bail cancellation mechanism.
- Vijay Narain Singh v. State of Bihar (1984) 3 SCC 14: Preventive detention should not be used just because regular criminal law cannot secure the denial of bail.
Is Preventive Detention Being Misused?
The Court’s judgment reflects growing judicial anxiety over the use of preventive detention as a tool to compensate for failures in prosecution or laxity in seeking bail cancellation.
Signs of Misuse
- Invoking preventive detention instead of filing for bail cancellation.
- Use against individuals already cooperating with ongoing investigations.
- Weak or no connection between the alleged acts and the threat to public order.
Consequences
- Erosion of personal liberty without trial.
- Circumvention of criminal justice safeguards.
- Undermining faith in the rule of law and judicial oversight.
Can It Replace Criminal Prosecution?
The answer is unequivocally no. Preventive detention is not a substitute but an exception to criminal prosecution. The regular criminal law route, including arrest, trial, bail, and punishment upon conviction, remains the default and constitutionally endorsed mechanism.
Preventive Detention and Criminal Prosecution: A Brief Overview
Preventive Detention aims to avert actions prejudicial to public order or national security based on an individual’s past conduct and likelihood of future threats. Unlike criminal prosecution, it does not require an actual offence to be committed. Such detention can occur before, during, or after criminal proceedings—even after acquittal—based on the subjective satisfaction of the detaining authority, provided sufficient material exists to justify the threat.
Criminal Prosecution, on the other hand, follows a legal process starting with police investigation and culminating in conviction or acquittal. Rooted in British jurisprudence, it upholds two key principles: the presumption of innocence and the prosecution’s burden to prove guilt beyond a reasonable doubt. Procedural rights under the CrPC (BNSS), the Indian Evidence Act (BSA), and constitutional safeguards ensure that even accused individuals retain their human and fundamental rights, enforceable via writs like habeas corpus or certiorari through the High Courts and the Supreme Court. The judiciary has emphasised humane treatment of prisoners, affirming that prisons must uphold the rule of law.
Conclusion
The Supreme Court in Dhanya M v. State of Kerala has firmly reiterated the constitutional position that preventive detention is an extraordinary measure not to be casually invoked, especially when criminal prosecution avenues are available. The State cannot bypass the need to prove charges in court by labelling someone a public threat without evidence of widespread societal harm.
The judgment is a significant check on arbitrary executive action and a reminder that liberty cannot be sacrificed at the altar of administrative convenience. The preventive detention mechanism should remain, as intended, a shield for the State in rare and compelling situations, not a sword to silence or punish in the garb of precaution.