Stop illegal detentions, says SC amid crackdown in Delhi

Why in news?

In a special Sunday hearing, the Supreme Court directed the Centre and Delhi Police to stop illegal detentions of protesters.

UPSC Relevance

Prelims – Articles 19, 21, 22 and 32; Preventive detention; Writ of habeas corpus; Section 163 BNSS; Landmark judgments

Mains, GS2 – Fundamental Rights

GS4 / Essay – Dissent, non-violence and the ethics of state power

Gandhi on Dissent, Protest and Detention

On October 10, youth groups protesting in Delhi chose to court detention rather than resist the police. This brings back Mahatma Gandhi’s famous statement in the 1922 sedition trial before Judge C.N. Broomfield under Section 124A IPC (sedition) for three articles in his journal Young India. He pleaded guilty and was sentenced to six years’ simple imprisonment.

• Gandhi argued that affection cannot be manufactured or regulated by law. If a person has no affection for a system, he should be free to express his disaffection fully, as long as he does not plan, promote or incite violence.
• Detention as part of protest: He saw willing acceptance of punishment as the core of non-violent non-cooperation. Instead of hitting back, a satyagrahi accepts arrest or jail and thereby exposes the injustice of the law.
• He rejected ‘violent non-cooperation’ because it only multiplied evil. The legitimacy of protest therefore comes from its peaceful nature.
• Constitutional echo: Free India turned this idea into Article 19. The line Gandhi drew in 1922, i.e. full freedom to criticise but no incitement to violence, is broadly the same line the Constitution draws through ‘reasonable restrictions’ on grounds like public order.

What is Detention?

Detention simply means keeping a person in custody by the State, restricting his liberty. It can be of two types:

• Punitive detention: Custody as punishment for an offence already committed, after trial and conviction (or during trial).
• Preventive detention: Custody to stop a person from doing something in the future that may harm public order, security of the State, etc. There is no trial and no proven offence. It is based on the ‘subjective satisfaction’ of the executive. 

Arrest vs Detention

Why are Detentions Needed in the First Place?

• Historical reason: The Constituent Assembly accepted preventive detention due to Partition violence and fragile security. Dr. Ambedkar defended it as a necessary evil, while adding safeguards in Article 22.
• National security: Threats from insurgency, cross-border terrorism and espionage need quick action.
• Maintaining public order: Short-term detention helps police manage large crowds, protect VIP routes, critical infrastructure and vulnerable groups.
• Prevention is better than cure: In cases like communal riots, terror attacks or mob violence, waiting for the crime to happen can cost lives.
• Evidence gaps: In smuggling, organised crime and terror networks, witnesses often turn hostile, making normal trials difficult.

Constitutional Provisions

• Article 21: No person shall be deprived of life or personal liberty except according to procedure established by law. After Maneka Gandhi (1978), this procedure must be fair, just and reasonable.
• Article 22(1) and (2): An arrested person must be told the grounds of arrest, can consult a lawyer of his choice, and must be produced before the nearest magistrate within 24 hours (excluding travel time).
• Article 22(3): These protections do not apply to (a) an enemy alien and (b) a person detained under a preventive detention law.
• Article 22(4) to (7) – safeguards for preventive detention: 

• Detention beyond 3 months needs a report from an Advisory Board (persons qualified to be High Court judges).
• Grounds of detention must be communicated as soon as possible, and the detenu must get the earliest chance to make a representation.
• Facts against public interest need not be disclosed.
• Parliament can prescribe the maximum period and the cases where detention beyond 3 months is possible without the Board.
• The 44th Amendment (1978) reduced the period to 2 months, but this part has not been notified till date. So, 3 months still applies.

• Seventh Schedule: Parliament can make preventive detention laws for defence, foreign affairs and security of India (Union List, Entry 9). Both Parliament and States can legislate for security of a State, public order and essential supplies (Concurrent List, Entry 3).
• Article 19: 19(1)(a) speech and expression, 19(1)(b) peaceful assembly without arms, 19(1)(c) association, 19(1)(d) free movement. Restrictions under 19(2), (3), (4) and (5) must be ‘reasonable’.
• Articles 32 and 226: Habeas corpus (‘produce the body’) is the main remedy against illegal detention.
• Article 359 (after 44th Amendment): Articles 20 and 21 cannot be suspended even during a National Emergency, a lesson from 1975-77.

Legal Provisions

• BNSS, 2023: 

• Section 58 – no detention beyond 24 hours without magistrate’s order.
• Section 170 (old Section 151 CrPC) – police can arrest to prevent a cognizable offence. Such a person cannot be kept beyond 24 hours unless needed under any other law.
• Section 172 – police can detain or remove a person who resists lawful directions; produce before magistrate or release within 24 hours in petty cases.
• Section 163 (old Section 144 CrPC) – prohibitory orders by magistrate in urgent cases of nuisance or apprehended danger.

• Preventive detention laws: National Security Act, 1980 (up to 12 months); COFEPOSA, 1974 (smuggling); PIT-NDPS Act, 1988 (drug trafficking); State laws like the J&K Public Safety Act, 1978 and Tamil Nadu Goondas Act, 1982. 
• International angle: Article 9 of ICCPR protects against arbitrary detention and Article 21 recognises peaceful assembly. India ratified ICCPR in 1979 but made a reservation on Article 9 to protect its preventive detention regime.

How Illegal detention of protestors violates Fundamental Rights

Detention is legal only when it follows due process and is proportionate. When it is blanket, pre-emptive and without legal basis, it hits several rights together.

• Article 21 – Personal liberty: Detention without legal authority or beyond 24 hours, or without informing grounds, is a direct breach of liberty.
• Article 22 – Procedural safeguards: Not telling grounds, denying access to a lawyer or not producing detainees before a magistrate.
• Article 19(1)(b) – Peaceful assembly: Rounding up people before they assemble converts a regulatory power into a total ban on protest.
• Article 19(1)(d) – Free movement: Shutting Metro stations, stopping trains and barricading roads restrict lakhs of people, including non-protesters.
• Article 19(1)(a) – Speech and expression: Protest is a form of expression. Internet shutdowns and detaining journalists also affect the public’s right to know.
• Article 19(1)(c) – Association: Targeting members of particular organisations discourages collective political activity.
• Article 14 – Arbitrariness: Selective detention of some groups or leaders, without objective criteria, is arbitrary state action.
• Access to justice (Art 21 and 32): Prohibitory orders around courts block litigants from reaching lawyers and courts, which itself is a fundamental right.
• Chilling effect: Even short detentions create fear and discourage citizens from future participation in democratic life.

Judicial Position on Detention and Protest

Takeaway from the latest SC orders: The Court did not question the prohibitory zone as such. It reaffirmed that the State can regulate but cannot impose a blanket ban, and every detention must be ‘by law’. This is the proportionality test in action.

Concerns

• Routine use of ‘preventive’ powers: Short-term detentions under BNSS are often used to stop protests before they begin, with little record-keeping.
• No accountability: Police personnel operating without name tags violate D.K. Basu guidelines. Compensation remains discretionary as there is no statutory law.
• Weak judicial follow-up: Contempt and compliance often take months, by which time the protest is over and the remedy loses value.
• Overuse of long-term detention: Courts have repeatedly quashed NSA and Goonda Act orders for non-application of mind and delay in deciding representations.
• Collateral damage: Metro closures and Internet shutdowns affect ordinary citizens, workers and students, and have an economic cost.

Way Forward

• Proportionality first: Use the least restrictive measure, i.e. designated sites, time limits and traffic plans, instead of mass round-ups.
• Transparency: Maintain a public record of every detention with time, place, grounds and release; mandatory body cameras and visible name tags.
• Statutory compensation: Enact a law for compensation in cases of wrongful detention and prosecution, as suggested by the Law Commission’s 277th Report (2018).
• Police reforms: Implement Prakash Singh (2006) directions, including Police Complaints Authorities, to separate policing from political pressures.
• Dialogue with protesters: Early engagement with organisers, as seen in some farmer protests, reduces confrontation.

Practice MCQ

Q1. Consider the following statements regarding Article 22 of the Constitution of India:

1. The rights to be informed of the grounds of arrest and to consult a legal practitioner do not apply to a person detained under a preventive detention law.
2. No preventive detention law can authorise detention beyond three months unless an Advisory Board reports sufficient cause, subject to a law made by Parliament under Article 22(7).
3. The 44th Constitutional Amendment Act, 1978 reduced the period of detention without Advisory Board review to two months, which is currently in force.

How many of the above statements are correct?

(a) Only one     (b) Only two     (c) All three     (d) None

Answer: (b) Statement 3 is incorrect. The provision reducing the period to two months has not been notified, so the three-month period continues.

Mains Practice Question

“The State may regulate the right to protest, but it cannot extinguish it.” Distinguish between arrest and preventive detention, and examine how the judiciary has balanced personal liberty and public order in cases of protest-related detentions. (15 Marks, 250 words)

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