Introduction
Imagine being picked up by the police on your way to a protest. You have not been tried. You have not been convicted. Yet you are detained.
Is that legal? Sometimes, yes. The law calls it preventive detention. It is a powerful tool, and a controversial one. Let us understand how it works.
What Sparked the Debate?
Recently, Delhi Police detained protesters. They were trying to reach Jantar Mantar. The protest demanded the resignation of Chief Election Commissioner Gyanesh Kumar and a rollback of the SIR.
The detained included many kinds of people:
- Opposition leaders and former Chief Ministers
- Lawyers and journalists
- Students and activists
- Reportedly, people who were not even part of the protest
Some were detained at the homes of their representatives. Others were stopped on the way. On October 11, the Supreme Court stepped in. It directed the Centre and the Delhi Police to allow free movement of people, “subject to law and order.”
This brought an old question back. What exactly is preventive detention?
What Is Preventive Detention?
It means holding a person without a trial or conviction by a court.
The goal is not to punish someone for a past crime. The goal is to stop a future one. Authorities can use this power on three grounds:
- Public order
- Security of the State
- Law and order
Think of it as a “better safe than sorry” rule. The problem is that it can also hurt personal freedom. That is why the law sets limits.
The National Security Act
The National Security Act (NSA), 1980 is a key law here. It allows preventive detention when the government is satisfied of a threat. This includes activities that harm:
- The defence of India
- India’s relations with foreign powers
- The security of the State
Preventive Detention vs Prohibitory Orders
People often mix these two up. They are different tools.
What is a Prohibitory Order?
Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) is the key provision. It largely keeps the spirit of the old Section 144 of the Criminal Procedure Code, 1973.
A District Magistrate, a Sub-Divisional Magistrate or another specially empowered Executive Magistrate can issue such orders. They do so when there is a need for quick action.
The aim is to prevent things like:
- Obstruction or annoyance to people
- Injury to anyone lawfully employed
- Danger to human life, health or safety
- A disturbance of public peace, a riot or an affray
How they differ
A prohibitory order controls what a crowd can do in an area. Preventive detention takes a specific person into custody.
Prohibitory orders are meant to be used when the situation is urgent. The Magistrate must be satisfied that quick action is needed. The order must state the material facts it relies on. This keeps the process open and challengeable. These orders can also be reviewed by the High Courts.
How did Preventive Detention evolve in India?
The story starts in the colonial era.
The British Period
Laws such as the Rowlatt Act of 1919 and the Defence of India Act of 1939 allowed detention without trial. They were often used against freedom fighters.
After Independence
India kept the idea, even after fighting for freedom. The timeline looks like this:
- 1950: The Preventive Detention Act came in. It remained in force until 1969.
- 1971: The Maintenance of Internal Security Act (MISA) expanded detention powers. It was widely used against political opponents during the Emergency (1975 to 1977). It was repealed in 1978.
- 1974: The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) allowed preventive detention for specific purposes.
- 1980: The National Security Act created a continuing legal framework.
- 1967 onwards: Amendments to the Unlawful Activities (Prevention) Act (UAPA) widened the state’s powers on terrorism and unlawful activities.
What does the Constitution say?
Article 22 is the main safeguard. It protects people from arbitrary detention.
The Key Protections
- Article 22(4): A person generally cannot be detained for more than three months. An Advisory Board must review the case, subject to constitutional requirements and exceptions.
- Article 22(5): The authorities must tell the detainee the grounds of detention as soon as possible. The person must also get a chance to make a representation against the order.
The grounds must be explained in a way that lets the detainee actually challenge them. A vague notice does not meet this test.
The “Golden Triangle”
The Supreme Court has spoken of a “golden triangle” of rights in the Ameena Begum v. State of Telangana (2023) case. It is formed by Articles 14, 19 and 21.
- Article 14: Equality before the law
- Article 19: Freedoms such as speech, expression, assembly and movement
- Article 21: The right to life and personal liberty
The court said these safeguards must be diligently enforced to keep preventive detention in check.
What have the Courts said?
Courts have played a big role in setting limits. Here are the key cases.
Babulal Parate v. State of Maharashtra (1961)
- The Supreme Court upheld Section 144 of the old CrPC. But it said the power was not “unlimited or untrammelled.” It could only be used in emergencies and within legal limits.
Madhu Limaye v. Sub-Divisional Magistrate (1971)
- The court again stressed that such powers must be used with care. They should be proportionate. They should be used only when a threat to public order is imminent. They should not be a routine measure.
Maneka Gandhi v. Union of India (1978)
- This case established that procedures restricting personal liberty must be just, fair and reasonable.
Khudiram Das v. State of West Bengal (1975)
- The court said the grounds of detention must be told to the detainee. This acts as a check on arbitrary power. The detaining authority cannot simply whisk a person away at its own will. The detainee must also be able to use judicial review and make a representation.
Ramlila Maidan Case (2012)
- The Supreme Court criticised the government for imposing Section 144 against a sleeping crowd at Ramlila Maidan. It said such a provision can be used only in grave circumstances. The emergency must be sudden and the consequences serious enough.
Mazdoor Kisan Shakti Sangathan v. Union of India (2018)
- The court set aside a National Green Tribunal order that banned all protests along Jantar Mantar Road. It called a complete ban excessive. It told the authorities to create a system to regulate protests and grant permissions instead.
Shaik Naznen v. State of Telangana (2022)
- The court observed that preventive detention powers are exceptional. They strike hard at a person’s freedom. So they cannot be used in a routine manner.
What did the Supreme Court order recently ?
The court held an “extraordinary, exceptional” Sunday hearing. Here is what it directed.
- The Centre and Delhi Police must stop illegal detentions.
- Free and smooth movement of people and traffic must be allowed, subject to law and public order.
- Delhi Metro and railway services must run normally.
- Internet services must remain available in accordance with the law.
- Barricades must be reviewed based on law and order and traffic needs.
- Peaceful assemblies must be allowed, except in areas where Section 163 BNSS orders are in force.
- Any notice board announcing Section 163 restrictions near the Supreme Court must be removed, if still there.
- Lawyers, journalists and other professionals must not be stopped from doing their duties.
The court also issued notice in contempt proceedings. These allege a violation of its October 9 order. The authorities must submit a compliance report by October 13. Habeas corpus petitions on the mass detentions will be heard with the main cases on the same day.
The court stressed that the State must explain the circumstances, the manner and the legal basis for the alleged detentions. It linked this to its duty under Article 32 to protect fundamental rights.
State of the matter
The core idea is simple. The State can act early to prevent harm. But it cannot act without limits.
Here is the balance the courts keep pointing to:
- Safety is important, but so is freedom.
- Authorities need power, but that power must be used with reasons.
- A detained person must know why they are held and must be able to respond.
- Courts stand ready to check whether the law was followed.
The Gist
- Preventive detention lets authorities hold a person to prevent a future threat.
- It is different from prohibitory orders, which restrict activity in an area.
- Article 22 gives detained persons important safeguards.
- Laws like the NSA set out the grounds and procedures.
- Courts can review these actions and have repeatedly said they must be used with care.
Final thoughts
Preventive detention sits at a tricky crossroads. On one side is public safety. On the other is individual liberty. India’s history with this power, from colonial rule to the Emergency, shows why watchfulness matters.
The latest Supreme Court orders send a clear message. Even in tense times, the law must be followed. Freedom is not something to be switched off on a whim.
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Petrol in India is cheaper than in countries like Hong Kong, Germany and the UK but costlier than in China, Brazil, Japan, the US, Russia, Pakistan and Sri Lanka, a Bank of Baroda Economics Research report showed.
Rising fuel prices in India have led to considerable debate on which government, state or central, should be lowering their taxes to keep prices under control.
The rise in fuel prices is mainly due to the global price of crude oil (raw material for making petrol and diesel) going up. Further, a stronger dollar has added to the cost of crude oil.
Amongst comparable countries (per capita wise), prices in India are higher than those in Vietnam, Kenya, Ukraine, Bangladesh, Nepal, Pakistan, Sri Lanka, and Venezuela. Countries that are major oil producers have much lower prices.
In the report, the Philippines has a comparable petrol price but has a per capita income higher than India by over 50 per cent.
Countries which have a lower per capita income like Kenya, Bangladesh, Nepal, Pakistan, and Venezuela have much lower prices of petrol and hence are impacted less than India.
“Therefore there is still a strong case for the government to consider lowering the taxes on fuel to protect the interest of the people,” the report argued.
India is the world’s third-biggest oil consuming and importing nation. It imports 85 per cent of its oil needs and so prices retail fuel at import parity rates.
With the global surge in energy prices, the cost of producing petrol, diesel and other petroleum products also went up for oil companies in India.
They raised petrol and diesel prices by Rs 10 a litre in just over a fortnight beginning March 22 but hit a pause button soon after as the move faced criticism and the opposition parties asked the government to cut taxes instead.
India imports most of its oil from a group of countries called the ‘OPEC +’ (i.e, Iran, Iraq, Saudi Arabia, Venezuela, Kuwait, United Arab Emirates, Russia, etc), which produces 40% of the world’s crude oil.
As they have the power to dictate fuel supply and prices, their decision of limiting the global supply reduces supply in India, thus raising prices
The government charges about 167% tax (excise) on petrol and 129% on diesel as compared to US (20%), UK (62%), Italy and Germany (65%).
The abominable excise duty is 2/3rd of the cost, and the base price, dealer commission and freight form the rest.
Here is an approximate break-up (in Rs):
a)Base Price | 39 |
b)Freight | 0.34 |
c) Price Charged to Dealers = (a+b) | 39.34 |
d) Excise Duty | 40.17 |
e) Dealer Commission | 4.68 |
f) VAT | 25.35 |
g) Retail Selling Price | 109.54 |
Looked closely, much of the cost of petrol and diesel is due to higher tax rate by govt, specifically excise duty.
So the question is why government is not reducing the prices ?
India, being a developing country, it does require gigantic amount of funding for its infrastructure projects as well as welfare schemes.
However, we as a society is yet to be tax-compliant. Many people evade the direct tax and that’s the reason why govt’s hands are tied. Govt. needs the money to fund various programs and at the same time it is not generating enough revenue from direct taxes.
That’s the reason why, govt is bumping up its revenue through higher indirect taxes such as GST or excise duty as in the case of petrol and diesel.
Direct taxes are progressive as it taxes according to an individuals’ income however indirect tax such as excise duty or GST are regressive in the sense that the poorest of the poor and richest of the rich have to pay the same amount.
Does not matter, if you are an auto-driver or owner of a Mercedes, end of the day both pay the same price for petrol/diesel-that’s why it is regressive in nature.
But unlike direct tax where tax evasion is rampant, indirect tax can not be evaded due to their very nature and as long as huge no of Indians keep evading direct taxes, indirect tax such as excise duty will be difficult for the govt to reduce, because it may reduce the revenue and hamper may programs of the govt.
Globally, around 80% of wastewater flows back into the ecosystem without being treated or reused, according to the United Nations.
This can pose a significant environmental and health threat.
In the absence of cost-effective, sustainable, disruptive water management solutions, about 70% of sewage is discharged untreated into India’s water bodies.
A staggering 21% of diseases are caused by contaminated water in India, according to the World Bank, and one in five children die before their fifth birthday because of poor sanitation and hygiene conditions, according to Startup India.
As we confront these public health challenges emerging out of environmental concerns, expanding the scope of public health/environmental engineering science becomes pivotal.
For India to achieve its sustainable development goals of clean water and sanitation and to address the growing demands for water consumption and preservation of both surface water bodies and groundwater resources, it is essential to find and implement innovative ways of treating wastewater.
It is in this context why the specialised cadre of public health engineers, also known as sanitation engineers or environmental engineers, is best suited to provide the growing urban and rural water supply and to manage solid waste and wastewater.
Traditionally, engineering and public health have been understood as different fields.
Currently in India, civil engineering incorporates a course or two on environmental engineering for students to learn about wastewater management as a part of their pre-service and in-service training.
Most often, civil engineers do not have adequate skills to address public health problems. And public health professionals do not have adequate engineering skills.
India aims to supply 55 litres of water per person per day by 2024 under its Jal Jeevan Mission to install functional household tap connections.
The goal of reaching every rural household with functional tap water can be achieved in a sustainable and resilient manner only if the cadre of public health engineers is expanded and strengthened.
In India, public health engineering is executed by the Public Works Department or by health officials.
This differs from international trends. To manage a wastewater treatment plant in Europe, for example, a candidate must specialise in wastewater engineering.
Furthermore, public health engineering should be developed as an interdisciplinary field. Engineers can significantly contribute to public health in defining what is possible, identifying limitations, and shaping workable solutions with a problem-solving approach.
Similarly, public health professionals can contribute to engineering through well-researched understanding of health issues, measured risks and how course correction can be initiated.
Once both meet, a public health engineer can identify a health risk, work on developing concrete solutions such as new health and safety practices or specialised equipment, in order to correct the safety concern..
There is no doubt that the majority of diseases are water-related, transmitted through consumption of contaminated water, vectors breeding in stagnated water, or lack of adequate quantity of good quality water for proper personal hygiene.
Diseases cannot be contained unless we provide good quality and adequate quantity of water. Most of the world’s diseases can be prevented by considering this.
Training our young minds towards creating sustainable water management systems would be the first step.
Currently, institutions like the Indian Institute of Technology, Madras (IIT-M) are considering initiating public health engineering as a separate discipline.
To leverage this opportunity even further, India needs to scale up in the same direction.
Consider this hypothetical situation: Rajalakshmi, from a remote Karnataka village spots a business opportunity.
She knows that flowers, discarded in the thousands by temples can be handcrafted into incense sticks.
She wants to find a market for the product and hopefully, employ some people to help her. Soon enough though, she discovers that starting a business is a herculean task for a person like her.
There is a laborious process of rules and regulations to go through, bribes to pay on the way and no actual means to transport her product to its market.
After making her first batch of agarbathis and taking it to Bengaluru by bus, she decides the venture is not easy and gives up.
On the flipside of this is a young entrepreneur in Bengaluru. Let’s call him Deepak. He wants to start an internet-based business selling sustainably made agarbathis.
He has no trouble getting investors and to mobilise supply chains. His paperwork is over in a matter of days and his business is set up quickly and ready to grow.
Never mind that the business is built on aggregation of small sellers who will not see half the profit .
Is this scenario really all that hypothetical or emblematic of how we think about entrepreneurship in India?
Between our national obsession with unicorns on one side and glorifying the person running a pakora stall for survival as an example of viable entrepreneurship on the other, is the middle ground in entrepreneurship—a space that should have seen millions of thriving small and medium businesses, but remains so sparsely occupied that you could almost miss it.
If we are to achieve meaningful economic growth in our country, we need to incorporate, in our national conversation on entrepreneurship, ways of addressing the missing middle.
Spread out across India’s small towns and cities, this is a class of entrepreneurs that have been hit by a triple wave over the last five years, buffeted first by the inadvertent fallout of demonetization, being unprepared for GST, and then by the endless pain of the covid-19 pandemic.
As we finally appear to be reaching some level of normality, now is the opportune time to identify the kind of industries that make up this layer, the opportunities they should be afforded, and the best ways to scale up their functioning in the shortest time frame.
But, why pay so much attention to these industries when we should be celebrating, as we do, our booming startup space?
It is indeed true that India has the third largest number of unicorns in the world now, adding 42 in 2021 alone. Braving all the disruptions of the pandemic, it was a year in which Indian startups raised $24.1 billion in equity investments, according to a NASSCOM-Zinnov report last year.
However, this is a story of lopsided growth.
The cities of Bengaluru, Delhi/NCR, and Mumbai together claim three-fourths of these startup deals while emerging hubs like Ahmedabad, Coimbatore, and Jaipur account for the rest.
This leap in the startup space has created 6.6 lakh direct jobs and a few million indirect jobs. Is that good enough for a country that sends 12 million fresh graduates to its workforce every year?
It doesn’t even make a dent on arguably our biggest unemployment in recent history—in April 2020 when the country shutdown to battle covid-19.
Technology-intensive start-ups are constrained in their ability to create jobs—and hybrid work models and artificial intelligence (AI) have further accelerated unemployment.
What we need to focus on, therefore, is the labour-intensive micro, small and medium enterprise (MSME). Here, we begin to get to a definitional notion of what we called the mundane middle and the problems it currently faces.
India has an estimated 63 million enterprises. But, out of 100 companies, 95 are micro enterprises—employing less than five people, four are small to medium and barely one is large.
The questions to ask are: why are Indian MSMEs failing to grow from micro to small and medium and then be spurred on to make the leap into large companies?
At the Global Alliance for Mass Entrepreneurship (GAME), we have advocated for a National Mission for Mass Entrepreneurship, the need for which is more pronounced now than ever before.
Whenever India has worked to achieve a significant economic milestone in a limited span of time, it has worked best in mission mode. Think of the Green Revolution or Operation Flood.
From across various states, there are enough examples of approaches that work to catalyse mass entrepreneurship.
The introduction of entrepreneurship mindset curriculum (EMC) in schools through alliance mode of working by a number of agencies has shown significant improvement in academic and life outcomes.
Through creative teaching methods, students are encouraged to inculcate 21st century skills like creativity, problem solving, critical thinking and leadership which are not only foundational for entrepreneurship but essential to thrive in our complex world.
Udhyam Learning Foundation has been involved with the Government of Delhi since 2018 to help young people across over 1,000 schools to develop an entrepreneurial mindset.
One pilot programme introduced the concept of ‘seed money’ and saw 41 students turn their ideas into profit-making ventures. Other programmes teach qualities like grit and resourcefulness.
If you think these are isolated examples, consider some larger data trends.
The Observer Research Foundation and The World Economic Forum released the Young India and Work: A Survey of Youth Aspirations in 2018.
When asked which type of work arrangement they prefer, 49% of the youth surveyed said they prefer a job in the public sector.
However, 38% selected self-employment as an entrepreneur as their ideal type of job. The spirit of entrepreneurship is latent and waiting to be unleashed.
The same can be said for building networks of successful women entrepreneurs—so crucial when the participation of women in the Indian economy has declined to an abysmal 20%.
The majority of India’s 63 million firms are informal —fewer than 20% are registered for GST.
Research shows that companies that start out as formal enterprises become two-three times more productive than a similar informal business.
So why do firms prefer to be informal? In most cases, it’s because of the sheer cost and difficulty of complying with the different regulations.
We have academia and non-profits working as ecosystem enablers providing insights and evidence-based models for growth. We have large private corporations and philanthropic and funding agencies ready to invest.
It should be in the scope of a National Mass Entrepreneurship Mission to bring all of them together to work in mission mode so that the gap between thought leadership and action can finally be bridged.