The danger of an unchecked pre-crime framework, Pg6

Key Highlights:

• The Supreme Court in Dhanya M. vs State of Kerala (2025) emphasized that preventive detention must be exercised sparingly and with constitutional safeguards.
• Preventive detention in India dates back to the Bengal Regulations of 1818 and was retained post-independence.
• Article 22 of the Indian Constitution constitutionalises preventive detention, but its use has been debated since its inception.
• The A.K. Gopalan vs State of Madras (1950) case upheld the validity of preventive detention, isolating it from other fundamental rights.
• The article suggests re-examining the constitutional propriety of A.K. Gopalan and A.K. Roy to reform the preventive detention regime.

Detailed Insights:

• Preventive detention, originating from colonial-era laws, allows the state to detain individuals without trial based on anticipated future actions.
• The Supreme Court has differentiated between "public order" and "law and order," stating preventive detention should only address public order concerns.
• Judgments like Rekha vs State of Tamil Nadu and Banka Sneha Sheela vs State of Telangana reinforce that preventive detention is an exception to Article 21.
• Article 22 was framed with elements of due process but excludes them from preventive detention laws, creating an ambiguous legal zone.
• The Maneka Gandhi vs Union of India (1978) case broadened the interpretation of "procedure established by law," but its impact on preventive detention remains limited.
• The author draws a parallel between preventive detention and the movie Minority Report, highlighting the dangers of pre-crime frameworks.
• The author argues that preventive detention should be restricted to grave threats like terrorism and transnational drug cartels, not routine administration.

Key Concepts Involved:

• Preventive Detention: Detention of a person without trial or conviction by a court, aimed at preventing them from committing future crimes or offenses.
• Article 22: Part of the Indian Constitution that provides safeguards against arbitrary arrest and detention, but also allows for preventive detention under certain conditions.
• Audi Alteram Partem: A Latin legal phrase embodying the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them.