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Preventive Detention, Illegal Custody and Writ of Habeas Corpus


A writ is a quick remedy against injustice, a device for the protection of the rights of citizens against any encroachment by the government authority. In India, the power to issue writs has been vested in the Supreme Court of India and the High Courts. It is an extraordinary remedy which can be expected in special circumstances. The Supreme Court is empowered to issue writs of Habeas Corpus, Mandamus, Certiorari, prohibition and quo warranto under article 32 of the constitution to protect the fundamental rights of the citizens. Similar right has been given to the High Courts of the country through Article 226 of the Indian Constitution. This paper further focusses on the writ of Habeas Corpus which translates to “to have the body”. This writ is issued by the honourable courts against illegal custody of a person or preventive detention in order to restore the right of personal liberty. Before proceeding further, let us have a look briefly at the meaning of preventive detention and the right to personal liberty.

The fundamental right to personal liberty is granted to all the Indian citizens under article 21. It is an individual's right to be free of restrictions or encroachments on his or her body, whether directly or indirectly imposed by determined measures. According to Dicey, “'Personal Liberty' means a right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit legal justification. The right to the safety of one's life and limbs and to the enjoyment of personal liberty, in the sense of freedom from physical restraint and coercion of any sort, are the inherent birth rights of a man.”

Preventive detention implies that the executive can diminish the Rights of Personal Liberty to defend public security or open request. In these conditions that individual may capture without outline any charge and with no path continuing. No individual may guarantee their central rights or other different rights that are guaranteed under constitution and different laws. This rule depends on hypothesis that "anticipation is superior to fix" anyone of the individuals might be captured without perpetrating the wrongdoing that might be unsafe for the public security or open request so it is arranged under the 22nd article of Constitution of India. Preventive detainment isn't general standard it is a particular guideline which will be apply in explicit conditions. On the off chance that preventive confinement is 'self-assertive', inside the wide understanding of that term as contended, it will be an allowable hardship of individual freedom. It might implement just on the provisions which are granted under Article 22.

Preventive detention implies the act of detaining blamed individual without the procedure on the assumption that if that individual would be delivered may cause lack of safety for the general public and in terrible enthusiasm of the community. They may perpetrate extra wrongdoing in the event that they were delivered. Preventive confinement is likewise utilized when the arrival of the denounced is felt to be adverse to the state's capacity to complete its examination. In certain nations the training has been assaulted as a disavowal of certain essential privileges of the charged. In any case, the preventive detainment ought to be as per the rights that are fundamental in nature ensured by the Constitution and ought to be in accordance with the regulation of the Law’s Rule.


Preventive detention in simple terms can be said as “confinement of a person without trial and conviction by a court but merely on suspicion in the minds of the executive authority.”

In the case of A. K. Goplan v. State of Madras, the court stated that "there is no valid concept and proper definition of preventive detention." In the case of Sunil Kumar Sammaddar v. Hoagly Jail, it was stated by the court that, "the term preventive means that restrict, the purpose of it was to deter likely or probable conduct that is detected from a will be detained on the basis of his previous behaviour."

In the case of Alamgir v. The State, the court pointed out that detention means keeping someone away. “It means detention of a person only on suspicion in the mind of the executive authority without trial, without conviction by the court. The aim behind the preventive detention law is to prevent a person from doing something which would be to danger for pubic peace or safety or concerning public disorder.”

Preventive detention is a particular statute where the authority is allowed to enforce limits on the liberty of a person who may not have committed a felony but is being arrested, or is going to perform actions that threaten public safety, etc.

In the words of Davis H. Bayley, "A law of Preventive Detention sanctions the confinement of individuals in order to prevent them from engaging in forms of activity considered injurious to the community and the likelihood of which it is indicated by their past action.”

The sides of the same coin are preventive detention and personal liberty. It requires unconvicted incarceration which goes opposite the fundamental principles of criminal theory of law. At the time where individual freedom reaches across the borders and becomes a threat to the state's very life, and at that point it does not control the enjoyment of the individual's rights, the state uses preventive detention.

Preventive detainment is known as authoritarian and vote based systems, for example free enterprise, communism and socialism type of the administration. In spite of the fact that there is a distinction in the activity of the vested forces, scarcely any nations attempted to execute this principle cautiously and mindfully. They embraced it unceremoniously and just in exceptionally vital conditions influencing the very presence of the state. Yet, in different nations preventive confinement rule has become the aspect of the life of the nation. A large portion of the nations utilized it unsystematically in tie of war and harmony. Furthermore, in all such these nations the privilege of individual freedom stayed in obscure.

Preventive confinement and arraignment for an offence are not interchangeable. In conviction a denounced is looked to be rebuffed for a past demonstration. The offense must be demonstrated past sensible uncertainty. In preventive confinement, then again, an individual is kept without preliminary in the emotional fulfillment of the chief to keep him from submitting an unwanted demonstration in future. The thought isn't to rebuff him for his past demonstrations. In preventive confinement, the previous demonstration is only the material for impedance about the further path of plausible lead with respect to the détente.

In the Constitution of India, the basic procedural requirements are laid down in Article 22, including any rule created by assembly that forbids a person his or her own rights. According to Article 22(1) and Article 22(2), the privileges of a caught person are additional. No one can be captured and kept for why he is being captured without informing him. An person caught by a licensed practitioner with his judgement cannot be refused defending himself. It indicates that each person taken captive is given the chance to hear. Captured individual can talk with a legitimate specialist and named to guard them. Each captured individual would be created before the closest judge inside 24 hours. The confined individual can't place in to the care past the said period by the authority of judge. It is referenced under clauses 1 and 2 of the 22nd article of the Indian Constitution.

In any case, every one of these protections won't have any significant bearing for some particular issues under article-22 (3), if the individual is at the time being an adversary outsider. In the event that the individual is captured under certain law made with the end goal of "Preventive Detention".

The main condition mentioned before is defended, in light of the fact that when India is in war, the resident of the foe nation might be captured. Be that as it may, the subsequent provision was difficult to legitimize by the constituent gathering. This is one of the arrangements which brought about turbulent and rancorous conversations. Under preventive detention rules, for two reasons, a person can be held in gaol or treatment. The original reason is that he committed a misdeed. Another is that in fact he might potentially commit a crime. The jurisdiction that comes from the latter is preventive imprisonment, and according to these rules the person would be deemed liable to commit a crime.

Accordingly, preventive detention is done before the occurrence of the wrongdoing. It is extremely difficult to characterize preventive detainment on the grounds that the word preventive confinement is confounding. The preventive confinement laws are sickening of current vote-based constitutions. They are not found in any of the equitable nations.


In the words of Areeka Tufail Mir, “Even in the absence of any alleged wrongdoing, Indian law allows the detention of individuals in order to prevent acts threatening ‘public peace and order’ and ‘national security.’” Preventive Detention involves detention without criminal trial as understood in such laws. That is, there is neither proven criminal crime nor any type of fee. “A police officer can charge the person, without a Magistrate's instructions and without a permit, if it occurs to such officer that the conduct of the offence cannot be prevented otherwise. The Indian Constitution expressly empowers Parliament to enact legislation providing for preventive detention which includes numerous enactments of laws on preventive detention, such as the Public Safety Act (PSA), The National Security Act, 1980 etc.”

A research scholar, Gautam Bhatia, aptly describes the problem that arises due to wrongful use of preventive detention in these words: “Preventive detention at its finest is a valuable method for ensuring the wellbeing of society. It is, at every other level, a straightforward way of crushing opposition, disregarding human rights and nullifying the assumption of innocence. It can very easily become a weapon to excuse the continued detention of "undesired" individuals by a mechanism of few procedural checks, without even attempting to prove their supposed offences.”

Under our Constitution, while preventive detention is allowed, statutes that allow for it do have to follow the standards of reasonableness and proportionality. Yet the violation of legislation relating to compulsory incarceration has not been resolved by the courts, who have often taken the state's side. The courts have refused to evaluate legislation pertaining to compulsory incarceration with any degree of diligence, and to ensure that they are compliant with personal rights and security. Moreover, any hurdle to an arrest warrant under the legislation of preventive detention does not go before a court in the very first instance, but before an "executive committee"


The Writ Jurisdiction of Supreme Court can be summoned under Article 32 of the Constitution for the encroachment of focal rights provided by the third part of the Constitution. Any acquisition of Fundamental Rights in any Constitution is of no importance except where there are good shields to ensure the necessity of such acquisitions. Although the truth of those rights is explicitly attempted by the legal, the securities expect even more criticality. Furthermore, use often relies on equal and square judicial self-rule and the availability with official force of content instruments. Indian Constitution, like the majority of Constitutions of the western nations, lays out such procurements to ensure the protection of Human Rights. These are as under:

  • The Fundamental Rights given in the Indian Constitution are guaranteed against every formal and regulatory activities. Any official or administrative action violating the constitutional rights of any citizen or any assembly of persons may be declared void by the Courts pursuant to Article 13 of the Constitution.

  • The Judiciary also has the right to impose the writs of privilege. These are the overarching social cures given to residents against any power in the state to uphold their rights. These writs are-Habeas corpus, Mandamus, Prohibition, Certiorari, Quo-warranto. Both the Supreme Court and High Courts may issue the writs.

  • The constitution's fundamental rights guaranteed to citizens cannot be revoked by the State, even in the middle of the crisis, as laid down in Article 359 of the Constitution. A Fundamental Right may also be extended by method for traditional lawful tactics including an explanatory claim or by method for opposing legal procedures.

Notwithstanding, Article 32 is appealed to as the "defined solution" for the authorization of constitutional rights. This transaction itself has been included in the Constitutional Rights and so no one should be denied it. Dr B.R.Ambedkar described Article 32 as “the most important and without it the Constitution would become inadmissible.”

Through incorporating Article 32 into the Fundamental Rights, the Supreme Court was made the guardian and asset manager of those rights. A petition lodged pursuant to Article 32 of the Constitution in the witness of the Supreme Court cannot be rejected on legal grounds. Except the five types of writs that have been accepted, the Supreme Court can issue some other reasonable order. In addition, only the Fundamental Rights enquiries can be resolved in proceedings against article 32. Article 32 provides that “the Supreme Court can issue a Writ against any person or government within the Indian Region. Where the violation of a legal provision has been created, the Supreme Court cannot deny help on the grounds that the offender might have remedy in custody of any other court or under the regular rule.” Equally, the alleviation cannot be rejected on the basis that the certainties discussed ought to be investigated or other evidence obtained. Irrespective of the fact that a distressed person has not needed a specific Writing, the Supreme Court may give the requisite Writing in the wake of taking the facts and circumstances into account, and may even adjust it to meet the requirements of the case. The Court is periodically obligated to push the excluded person out. The Supreme Court has, in either event, ruled that in matters of civil or free interest, anybody can move the Bench. A Public Interest Case can be reported in a Supreme Court witness pursuant to Article 32 of the Constitution or in a witness pursuant to Article 226 of the Constitution to a State High Court under their respective writ jurisdiction.

India's Constitution grants each of its people distinct Human Rights. Additionally, the Constitution gives procurements for the legal necessity of these Constitutional Rights. Fundamentally, enforcement of the Fundamental Rights is protected with the aid of 5 privilege Writs. Writs are simply written legal orders demanding a meeting at which a specified presentation is expected to be executed or left. While Article 32 binds the Supreme Court, while Article 226 requires the High Courts to issue writs against any State power in order to legalize the Fundamental Rights.


“Habeas Corpus, which means ‘You can have the body’, is one of the basic terms for human freedom. If any person is held in gaol or in personal confinement without legal authority, this document shall be given the authority to restrict that person and establish him or her underneath the constant watch of the Court. Here, the Court facilitates and demands for the right to provide the reasons for such imprisonment, but if there is no formal recognition, the individual being held shall be placed without. The applicant for this drafting can be either the imprisoned person or any citizen who measures up to secure his / her liberty for his / her advantage. This writ encapsules immediate support if an illegal arrest happens. An individual can move to the Court for the Habeas Corpus issue if taken prisoner It is a plea by a Court to the retaining powers to bring in the person captured with the expressed intent of analyzing whether the person was legally detained or illegally detained.”


  1. Nature of the Proceeding- In determining the inquiry of if habeas corpus prosecutions were affable or unlawful in nature, the court in Narayan v. Ishwarlal held that it must depend on the manner in which the locale was conducted.

  2. Eligibility to apply- With regard to the matter of who can apply for a written petition, the courts have conveyed, in separate situations, that the detainee or the restricted person, as well as any other person who is aware of the advantages of the case, is familiar with the actualities and circumstances and is enthusiastic about bringing the application before the court according to Articles 32 and 226 of the Constitution.

  3. Jurisdiction- Regarding geographical authority, the position of the Supreme Court under Article 32 applies to any of the states, whether within or outside the realm of India, whether they are to be under the rule of the government. While it applies, because of the jurisdiction of the High Courts pursuant to Article 226, to each of the powers in the control of that High Court or where the reason for the activity arises.

  1. Inappropriate Arguing- The investigation into whether the written petition can be set aside if the point put out is disgusting has been explained by the judiciary in Ranjit Singh v Pepsu State by stating that "the entire object of the written trials of Habeas Corpus is to make them fast, to keep them as comprehensive as can be required under the situation, and to keep them clear.

  1. Res Judicata- Where the question of whether the presumption of res judicata applies should a written order be given by Habeas Corpus, it was held that, "As far as Indian law is concerned, it is sincerely agreed that no second appeal to habeas corpus on the same grounds is necessary if the court grants a prior appeal.". But this rule will not be applicable, given the events at which a consequent recording happens have independent influence from one another and are entirely different in terms of expertise and venue.

  1. Conditions for Refusal- The following are the conditions under which the writ of habeas corpus may be denied.

  • At the stage where the arrest is reference to the court's order or option,

  • At the point where the person or power, i.e. the detainer, does not come under the regional court ward,

  • At the point where the detained person has been unset as of now,

  • At the stage where the detainment has been acknowledged through removal of deformities

  • At the time when the writing is scanned in the middle of disaster situations,

  • At the point at which the appeal was issued following the review of the compensation by a competent judge.


Human beings were born free in this universe, and left the same way by the Lord. Hence the right to personal freedom is a man's natural right, and this right should be free from all form of constraint and restriction. That doesn't mean, however, that an individual can go to any degree that affects others' rights. Therefore, he is protected to the degree that other people's interests are not violated. The State should also play its part in supporting the rights of others from being abused and should make rules for the preventive detention of a citizen until it can engage in other actions that are prejudicial to the protection of general law and order or to the welfare of the state. The rule on mandatory detention should be more humanitarian, with protection for civil rights. The Indian constitution, Part III, grants fundamental rights to all citizens. Therefore, the statute on preventive detention shall face the scrutiny of the Constitution's Part III. The imprisoning power therefore cannot behave unilaterally when enforcing the authority under the statute on preventive detention, and any detention should be performed in compliance with the legal system concept.

Alongside the principle of Habeas Corpus follows the wider reach of the Philosophy of Preventive Incarceration, which is a basic process and not meant as a practice. At the close of the day, though, it is not a penalty for an person's previous workouts, it is meant to discourage the person from loving future workouts that the essential law appears to ignore and provide a purpose to protect him from suffering in the future.


  1. Kumar, Rajesh.,

  2. "Misuse of Preventive Detention." Kashmir Observer. June 26, 2020. Accessed May 9, 2021.

  3. Bhatia, Gautam. "Preventive Detention." Indian Constitutional Law and Philosophy. September 02, 2020. Accessed April 21, 2021. the preventive detention regime, no right to legal assistance.

  4. Asthana, Subodh. “Writ: A Detailed Explanation of Writs and Procedures under Constitution.” IPleaders, 18 Aug. 2019, is well settled law,the rules of Natural Justice.

  5. “What Is Habeas Corpus and How to Use It." IPleaders. December 21, 2016. Accessed May 15, 2021.

Submitted by: Alankrita Sinha

Submitted to: S. Bhambri & Associates

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