Delhi Protests Against CEC: What the Pretrial Detention Act Says

Story so far: Delhi Police detained more than 5,000 protesters as they tried to enter Jantar Mantar for a protest demanding the resignation of Chief Election Commissioner Gyanesh Kumar and abolition of the post of SIR. Ahead of the protests in Delhi, there was a nationwide crackdown by police forces against protesters. Leaders of various political factions, former chief ministers, opposition leaders, lawyers, journalists, students, activists and allegedly people who did not even participate in the protest were among those detained and brutally handled by the Delhi Police. The police detained people in the residences of representatives even before the start of the protest and on the way to the place of the protest. However, the Supreme Court on Sunday (October 11, 2026) directed the Center and the Delhi Police to ensure free movement of persons “in accordance with law and order”.

This leads to an understanding of what preventive detention is, how it can be imposed and how it came into practice.

What is preventive detention?

“Preventive detention” means the detention of a person without trial or conviction by a court. The primary purpose of preventive detention is not to punish an individual for a past crime, but to prevent him or her from committing a crime in the future.

The power of preventive detention can be exercised by the authorities for reasons of public order, state security and public order.

The National Security Act 1980 (NSA) allows for preventive detention if the government believes that the person’s activities are prejudicial to India’s defence, India’s relations with foreign powers or national security.

What is the ban according to BNSS?

Section 163 of the BNSS largely preserves the spirit of its predecessor, Section 144 of the Code of Criminal Procedure, 1973. It empowers a District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government to issue orders where there is sufficient cause for redress and immediate prevention or speed is desirable. The primary objective is to prevent obstruction, harassment or injury to any lawfully employed person or endangering human life, health or safety or disturbing the public peace, riot or affray. The provision is preventive in nature and intended to avert potential harm rather than punish past actions. The Magistrate must be satisfied that there is an urgency which requires an immediate order, even without prior notice to the parties concerned.

The force is extraordinary and intended for situations where normal law enforcement procedures may be too slow to prevent immediate harm. The order must clearly state the essential facts on which it is based, ensure transparency and provide reasons for any objection.

Moreover, orders under Section 163 of the BNSS are subject to judicial review by the High Courts within their revisional jurisdiction. The Supreme Court in cases like Babulal Parate v. State of Maharashtra (1961) and Madhu Limaye v. Sub-Divisional Magistrate (1971) has consistently emphasized that these powers must be exercised judiciously, proportionately and only in case of imminent threat to public order and not as a routine measure.

How has preventive detention evolved over time?

Preventive detention in India has evolved from a colonial tool used to suppress political dissent into a legal mechanism designed to protect national security and public order. During British rule, laws such as the Rowlatt Act of 1919 and the Defense of India Act of 1939 allowed the authorities to detain individuals without trial, often targeting freedom fighters and political opponents.

After independence, India maintained preventive detention and introduced the Preventive Detention Act of 1950, which remained in force until 1969. The Maintenance of Internal Security Act (MISA) of 1971 further expanded detention powers and was widely used against political opponents during the Emergency (1975–1977). It was abolished in 1978.

The National Security Act (NSA) of 1980 subsequently created a permanent legal framework for preventive detention. Other laws, including the Foreign Exchange Protection and Prevention of Smuggling Activities Act (COFEPOSA), 1974, also authorized preventive detention for specific purposes. Meanwhile, amendments to the Unlawful Activities (Prevention) Act (UAPA), 1967, expanded the powers of the state to deal with terrorism and illegal activities.

Over time, the interpretation of personal freedom by the Supreme Court also developed. Maneka Gandhi v. Union of India (1978) established that procedures restricting personal liberty must be fair, just and reasonable. However, concerns about prolonged detention without trial, insufficient judicial oversight and the potential abuse of these laws continue to raise questions about the balance between national security and fundamental rights.

What did the Supreme Court order on October 11?

Regarding the Delhi protests, the Supreme Court on Sunday (October 11, 2026) convened an “extraordinary, extraordinary” hearing to order the Union government and the Delhi Police to stop illegal detentions and allow free and smooth movement of people and traffic, as well as operation of metro and rail services, but “in accordance with law and public order”.

The Supreme Court ordered that metro and rail services in Delhi function normally and internet services remain available in accordance with the law. She said that the movement of people and vehicles through Delhi must not be unnecessarily obstructed and that the barricades must be reviewed on the basis of law and order and traffic requirements. The court said that there must be no illegal detention and that all detentions must follow the procedure laid down by law. He also ordered that peaceful assemblies be allowed in accordance with law, except in areas where prohibitory orders under Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) apply. Any notice board notifying the restriction under Section 163 in the vicinity of the High Court must be removed, if still in existence, to ensure access to the High Court and other courts. The court also noted assurances that lawyers, journalists and other professionals would not be prevented from performing their duties.

The court issued a contempt notice on the alleged violation of its October 9 order and directed the authorities to submit a compliance report by October 13, including details of metro restrictions and rail alerts. Habeas corpus petitions related to mass detention will also be heard with the main cases on October 13. The court said the state must explain the circumstances, method and legal justification of the alleged detentions, emphasizing its duty under Article 32 of the Constitution to protect and enforce fundamental rights.

What have the courts said about preventive detention?

Earlier, in Babulal Parate v. State of Maharashtra (1961), the Supreme Court upheld the constitutionality of the provision but said it could only be invoked in urgent cases to prevent specific threats to public order. The court held that the power is not “unlimited or unlimited” and must be exercised within the limits set by law.

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In Khudiram Das v. State of West Bengal (1975), the Supreme Court observed that the requirement of disclosure of reasons for detention operates as a check against the arbitrary and capricious exercise of power. A detaining authority cannot, of its own sweet will, whisk away a man and put him behind bars. It must have reasons for doing so, and those reasons must be communicated to the detainee, so that the detainee not only knows what are the facts and materials before the detaining authority on the basis of which he is deprived of his personal liberty, but also may invoke the power of judicial review, however limited and marginal it may be. The detenu must be given the opportunity to object to the detention order.

In 2012, the Supreme Court criticized the government for imposing Section 144 against a sleeping crowd at Ramlila Maidan in New Delhi during protests against the Congress-led UPA government. “Such a provision can be used only in serious circumstances to preserve public peace. The purpose of this measure is to immediately prevent some harmful event. Therefore, the emergency must be sudden and the consequences sufficiently serious,” the court said.

In Mazdoor Kisan Shakti Sangathan v Union of India (2018), the Supreme Court struck down the order of the National Green Tribunal banning all protests along Jantar Mantar Road. The court declared that a blanket ban was unreasonable, noting that “the solution was not to ban demonstrations altogether”. He ordered authorities to create a system to regulate protests and grant permits.

The Supreme Court in the case of Shaik Naznen v. State of Telangana (2022) observed that the powers to be exercised under preventive detention laws are exceptional powers vested in the government for its exercise in an exceptional situation as it severely interferes with the freedom and liberty of an individual and thus cannot be exercised in a routine manner.

According to Ameena Begum v. State of Telangana (2023), the Supreme Court observed that to loosen the shackles of preventive detention, it is important that the safeguards enshrined in our Constitution are carefully enforced, particularly under the ‘golden triangle’ of Articles 14, 19 and 21. Article 14 ensures equality before the law, Article 19 provides important freedoms such as freedom of speech, expression, assembly and movement, and Article 21 guarantees the right to life and personal liberty.

What are the guarantees against preventive detention in the Constitution?

Article 22 of the Constitution provides guarantees against arbitrary preventive detention. Under Article 22(4), a person cannot generally be detained for more than three months without the case being reviewed by an advisory board, subject to constitutional requirements and exceptions. According to Article 22(5), the authorities must communicate the reasons for the detention to the detainee as soon as possible and give him the opportunity to object to the order. The reasons must be communicated in a way that allows the detainee to effectively challenge the detention.

Preventive detention orders are also subject to judicial review. Courts can examine whether authorities followed the law, considered relevant material, and observed constitutional guarantees. Therefore, force must be used carefully and cannot be used arbitrarily.