Colonial-era laws like PSA and NSA continue to raise questions over liberty, misuse, and executive overreach.
The Preamble to the Constitution of India was inspired by the French Revolution (1789–1799) and its ideals of liberty, equality, and fraternity. It promises justice, liberty, and equality to every citizen. Yet, paradoxically, India remains the only democracy in the world whose Constitution expressly permits preventive detention under Article 22.
A Colonial Legacy
Preventive detention laws were a hallmark of colonial repression. The infamous Rowlatt Act of 1919, which sparked nationwide resistance and ultimately led to the Jallianwala Bagh massacre, was one such example.
Independent India, however, chose to retain and expand these provisions. Today, laws such as the Public Safety Act (PSA), National Security Act (NSA), COFEPOSA, MISA, the Defence of India Act, and the Blackmarketing Act empower the executive to detain individuals for prolonged periods—even without the commission of a proven offence. Though safeguards like representation before an Advisory Board and habeas corpus petitions exist, these laws are frequently criticized as “draconian” and antithetical to democratic freedoms.
A Tool of Suppression
Over the decades, preventive detention has been repeatedly used not to avert genuine threats but to silence dissent. Activists, opposition leaders, and ordinary citizens have faced detention under PSA in Jammu & Kashmir or NSA in other parts of India. At times, misuse arises not merely from deliberate overreach but also from poor application of legal principles. Despite Supreme Court clarifications distinguishing “public order” from “law and order,” authorities often invoke these laws hastily, without due judicial reasoning.
The Mehraj Malik Case
The recent detention of Mehraj Malik, MLA from Constituency 52 in Doda, under the PSA has once again reignited this debate. His case stems from offensive remarks and indecent language used against DC Doda Harvinder Singh and family on social media. While such conduct could have been addressed through ordinary penal provisions relating to nuisance and misconduct, authorities instead invoked the PSA—a move critics view as arbitrary and disproportionate.
This rare instance, where preventive detention has been used for verbal abuse and indecorous speech, raises unsettling questions about executive discretion. Should a law designed to prevent grave threats to public order be applied in cases of misconduct that fall squarely within ordinary legal remedies?
Erosion of Trust
The frequent misuse of preventive detention laws risks eroding public trust in institutions and weakening the rule of law. By concentrating excessive power in the executive, these laws disrupt the constitutional balance envisioned by the framers. Each instance of arbitrary application chips away at the credibility of governance and undermines the democratic promise of liberty.
As history warns us: “Power corrupts, and absolute power corrupts absolutely.” In relying on preventive detention to address matters better suited for ordinary law, India risks betraying the very constitutional ideals it swore to uphold.