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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INTRODUCTION
Since most of the early scholars, researchers and historians were men, many aspects of society did not find a place in history books. For example, child-birth, menstruation, women’s work, transgenders, households etc. did not find much mention.
[wptelegram-join-channel link=”https://t.me/s/upsctree” text=”Join @upsctree on Telegram”]Rather than building a holistic picture of the past, some select aspects such as polity and the different roles of men became the central focus of history writing. Women were confined to one corner of the chapter where a paragraph or two was devoted to the ‘status and position of women’.
Even the details of these paragraphs were hardly different from each other. This made it look like as if history (and thereby society, polity, economy and all culture) belonged to men while women were only a small static unit to be mentioned separately. Of course, there were some exceptions, but these were however rare. This practice is being corrected now and the roles and presence of women are being read into all parts of historical questions.
SOURCES FOR UNDERSTANDING GENDER HISTORY
Sources are the bases of history writing. From simple pre-historic tools to abstruse texts, everything can be utilized to understand life and roles of women in history. The presence as well as the absence of women from sources needs to be duly noticed, deliberated and argued upon and only then to be theorised upon.
Certain objects being directly related to the lives of women or depicting the ideas of the female principle are of central importance. These include but are not limited to female figurines, art objects, texts attributed to or authored or compiled by women, monuments created by or for women, various objects relating to their lifestyle, objects associated with women on account of their cultural roles and so on.
It has been rightly pointed out by Uma Chakravarti that much of the gender history written in early phase was a ‘partial view from above’. This referred to the utilization of select textual sources and focused only on relational identity of women. There were, however, a few exceptions.
GENDER HISTORIOGRAPHY
Amongst the many narratives propagated to denigrate Indian civilization and culture by the British colonial rulers, the condition of Indian women became a point of central reference. Various social evils that made the life of women miserable were pointed out and efforts were also made to introduce ‘reforms.’ Sati, child-marriages, imposed widowhood, polygamy, dowry, educational and economic inequality, purdah (ghoonghat) and many other practices prevailed during the colonial period that made the life of women difficult and pitiable.
Some practices affected women of higher social and economic households while others led to misery for poorer women. Many social reform movements were started in the 19th century to address these issues and contributions were made by Indian reformers as well as British officials and other Europeans.
Women in India came to be treated as a homogeneous category and over generalisation became the norm. While many communities in India practised widow remarriage and did not practise (much less forced) sati and while some practised divorces or separation, the image of the Indian woman who had been subjugated as woman, wife and widow became a dominant theme in history writing.
Secondly, a western vision was placed over the non-western societies and hence interpretations were far removed from the context. For example, notion of stridhan was equated with dowry and little regard was paid to the provisions regarding its use and ownership by women.
The huge social stigma that came along with the selling of jewellery of the household (one of the main components of stridhan) was paid no attention to. Similarly, penal provisions listed by ancient texts for misappropriation of women’s property were not even looked into.
During the Paleolithic age, hunting and gathering was norm. However much importance was given to Hunting than gathering in all literature of history. Studies, however, show that hunted prey formed only 35% of the diet while gathering fruits and other edible material supplied the major portion. Gathering of food resources was ordinarily done by women. Since gathering was an important activity, more than hunting for game, it could point to significant role playing by women.
The gendered understanding of Harappan civilization is being built upon and various archaeological remains have been studied in this respect. The female figurines, idols of pregnant women, the statue of the ‘dancing girl’, various pieces of jewellery and personal belongings that have been discovered at various sites and offer useful insights on the public and private lives of women and men.
The statue of a girl obtained from Mohanjodaro has been called a ‘dancing girl’ on grounds of familiarity with the institution of devadasis in the later times. Such backward looking explanations are problematic.
There is a wide variety of terracotta female figurines that have been found at different sites right from the pre-Harappan times. Women figures are found suckling a baby, holding utensils, kneading dough, nursing infants, carrying objects like drums, seated figures for board games, with steatopygia (fat deposition on the hips and elsewhere), with floral head-dresses and in many other forms.
Even figurines of pregnant women are quite common. However, most of these have been uncritically associated with fertility, religiosity and reproductive ideas, and have been passed off as representations of the Mother Goddesses. While some of them were votive objects, others are held to be toys or other utilities. The focus on female form has been so stereotypical that women have been seen as associated only with home, hearth, fertility, sexuality and divinity. So much so that sometimes even male figurines in assumed womanly roles were classified as female figurines.
POSITION OF WOMEN IN EARLY INDIA
The first literary tradition in the Indian subcontinent (and the oldest in the world) is that of the Vedic corpus. From the four Samhitas to the Upanishads, we find many interesting references to women in various roles. Some of these women have left their mark on the cultural heritage to this day and are remembered in various ritual and social contexts. Their names, stories, some highly revered hymns, and other interesting facets are mentioned in the Vedic corpus.
The Vedic literature has been classified as Early Vedic and Later Vedic. The Rigvedic society and polity seems to be teeming with life and agro-pastoral economy was enmeshed in close kinship ties. Women as well as men participated in society, economy and polity. Some of the most revered hymns including the gayatri mantra are ascribed to women.
Various natural phenomena are depicted as Goddesses and they are offered prayers. While quantitative analysis highlights the predominance of Indra, Agni, Varuna and other male gods, the power and stature of the goddesses is equally well established.
Women participated in all three Vedic socio-political assemblies viz. Sabha, Samiti and Vidhata. They had access to education and were even engaged in knowledge creation. They could choose to be brahmavadinis with or without matrimony.
Hence, there is no reason to believe that they were only confined to home and hearth. T. S. Rukmani attempts to understand if women had agency in early India. Her work has highlighted many interesting details. The author acknowledges the fact that though the patriarchal set up put women at a loss, there were instances where women found space to exercise their agency.
She points out that though the texts like the Kalpasutras (Srautasutras, Dharmasutras and Grhasutras) revolved around the ideology of Dharma and there was not much space to express alternative ideas, still these works also find some leeway to express ideas reflecting changed conditions.
For example, there is a statement in the Apastamba Dharmasutra that one should follow what women say in the funeral samskaras. Stephanie Jamison believes that in hospitality and exchange relations, women played an important role. She says that the approval of the wife was important in the successful completion of the soma sacrifice. In another study it has been shown that women enjoyed agency in deciding what was given in a sacrifice, bhiksha to a sanyasin. The men had no authority in telling her what to do in these circumstances.
Vedic society was the one which valued marriage immensely. In such contexts, Gender Perspectives if a woman chose not to marry, then it would point to her exercising choice in her decision to go against the grain and remain unmarried.
Mention may be made of Gargi. She was a composer of hymns and has been called a brahmavadini. This term applies to a woman who was a composer of hymns and chose to remain unmarried, devoting herself to the pursuit of learning.
Similarly, in the case of Maitreyi, she consciously opts to be educated in the Upanishadic lore and Yajnavalkya does not dissuade her from exercising her choice.
The statement in the Rigveda that learned daughters should marry learned bridegrooms indicates that women had a say in marriage. Though male offspring is desired, there is a mantra in the Rigveda, recitation of which ensures the birth of a learned daughter.
Altekar refers to the yajnas like seethayagna, rudrayajna etc. that were to be performed exclusively by women. Some of the women were known for their exceptional calibre, for example, from the Rigveda Samhita we find mention of women like Apala, Ghosha, Lopamudra, Gargi, Maitreyi, Shachi, Vishwavara Atri, Sulabha and others.
Women have not only been praised as independent individuals but also with reference to their contributions towards their natal or marital families.
The Later Vedic literature shows the progression towards a State society with a change in the organization of the society and polity. The chief comes to be referred to as bhupati instead of gopati. However, within the twelve important positions (ratnis) mentioned, the chief queen retains a special position under the title mahisi.
The importance of the chief queen continued as gleaned from several references to them in the Epics, Arthashastra and even in coins and epigraphs from early historical times.
The other Samhitas also refer to women sages such as Rishikas. The wife is referred to as sahadharmini. Brahmanas or the texts dealing with the performance of the yajna (Vedic ritual), requires a man to be accompanied by his wife to be able to carry out rituals.
For example, Aitareya Brahmana looks upon the wife as essential to spiritual wholesomeness of the husband. However, there is a mention of some problematic institutions as well.
Uma Chakravarti has pointed towards the condition of Vedic Dasis (female servant/slave) who are referred to in numerous instances. They were the objects of dana (donation/gift) and dakshina (fee).
It is generally believed that from the post Vedic period the condition of the women steadily deteriorated. However, Panini’s Ashtadhyayi and subsequent grammatical literature speak highly of women acharyas and Upadhyayas.
Thus, the memory and practice of a brahmavadini continued even after the Vedic period. The Ramayana, Mahabharata and even the Puranas keep the memory of brhamavadini alive.
Mention may be made of Anasuya, Kunti, Damyanti, Draupadi, Gandhari, Rukmini who continued to fire the imagination of the poets. Texts show that the daughter of Kuni-garga refused marriage because she did not find anyone worthy of her.
The Epics also mention women whose opinions were sought in major events. For example, after the thirteen years of exile, while debating upon the future course of action regarding the restoration of their share, the Pandavas along with Krshna asks Draupadi for her views. Similarly, when Krishna goes to the Kaurava’s court to plead the case of Pandavas, Gandhari is called upon to persuade her sons to listen to reason.
Since a woman taking sanyasa was an act of transgression, one can explore women’s agency through such instances. In the Ramayana, Sabari, who was the disciple of Sage Matanga, and whose hermitage was on the banks of river Pampa was one such sanyasin.
Such women find mention in Smriti literature and Arthashashtra. Kautilya’s prohibition against initiating women into Sanyasa can make sense only if women were being initiated into sanyasa. He advises the king to employ female parivrajakas as spies.
Megasthenes mentions women who accompanied their husbands to the forest, probably referring to the Vanaprastha stage. Another category of literature called Shastras that comprises of sutras (aphorisms) and the smriti texts (‘that which is remembered’) becomes important in the postVedic period.
These textual traditions cover many subjects relating to the four kinds of pursuits of life referred to as purusharthas (namely dharma, karma, kama and moksha). In all these texts we find very liberal values and freedom for both women and men.
The setting up of a household is seen as an ideal for men as well as women (though asceticism for learning is equally praised for both). For example, Apastambha Sutra opines that rituals carried out by an unmarried man do not please the devatas (divinities). Similarly, Manusmriti provides that ‘for three years shall a girl wait after the onset of her puberty; after that time, she may find for herself a husband of equal status. If a woman who has not been given in marriage finds a husband on her own, she does not incur any sin, and neither does the man she finds’
Thus, we see that women enjoyed choice in matters of matrimony. It is interesting to note that unmarried daughters were to be provided for by the father. In fact, daughter is stated to be the object of utmost affection. Should a girl lose her parents, her economic interests were well looked after. It was provided that from their shares, ‘the brothers shall give individually to the unmarried girls, one-quarter from the share of each. Those unwilling to give will become outcastes’
With regards to defining contemporary attitude towards women, Apastambha Sutra prescribed that ‘All must make a way for a woman when she is treading a path.’ Later Dharmashastra also makes similar statements.
Yagnavalkyasmriti mentions that ‘women are the embodiment of all divine virtues on earth.’ However, there are several provisions that look problematic.
On one hand, we have reverence assigned to the feminine (divine and worldly) and important roles being played by them, on the other hand we have questionable provisions and descriptions like right to chastise them through beating or discarding.
The post-Vedic phase from 6th century BCE onwards is also rich in literary traditions with ample depictions of women. Interestingly, we have an entire body of literature that is ascribed totally to women who became Buddhist nuns. These are referred to as Therigathas i.e. the Songs of the Elder Bhikkhunis (Buddhist Women who joined the Sangha).
The Arthashastra Gender Perspectives gives us information on women who were engaged in economic activities of various kinds. They formed a part of both the skilled and the unskilled workforce. They were into professional as well as non-professional employment.
Some of their vocations were related to their gender, while the others were not. There were female state employees as well as independent working women. Similarly, some of them were engaged in activities which though not dependent on their biological constitution are nonetheless categorized as women’s domain, e.g. domestic services etc. Some of them were actual state employees, while some others were in contractual relations with the State. For example, we have female bodyguards and spies in the State employment.
Jaiswal suggests that these women perhaps came from Bhila or Kirata tribe. Female spies were not only to gather information and relay it to proper source, but also to carry out assassinations. However, a closer look at the text shows that there were different classes of female spies engaged for different purposes. Amongst others ‘women skilled in arts were to be employed as spies living inside their houses’. Others were required to work as assassins. Some were to the play the roles of young and beautiful widows to tempt the lust of greedy enemy.
We also have various Buddhist and Jaina traditions giving us some glimpses of the ideas and institutions of the times. Apart from the orthodox (Vedic and Brahmanic) and heterodox normative tradition we have many popular texts like the Epics in Sanskrit and Jatakas in Pali.
Even Prakrit language has many interesting narratives and poetic texts. The Therigatha by the Buddhist nuns are an interesting literary source that provides us with a glimpse of various women who attained arhantship or similar other stages of Realisation.
The deliberation on the age and deterioration of the body by Ambapali, the non-importance of sensual or bodily pleasures by Nanda, Vimla and Shubha etc points towards the intellectual and spiritual engagements and attainments of women.
It is interesting to note that an absolutely contrary picture is presented by the Jatakas wherein more often than not, women are depicted as evil. It is important to note that women were given an evil aura mostly in their roles as wives or beloveds.
Both the texts and the archaeological remains have been studied by various scholars and opposing interpretations are not rare. For example, on one side Sita (from Ramayana) and Draupadi (from Mahabharata) have been seen as victims of the patriarchal order; on the other hand, they are also represented as selfwilled women.
Draupadi after the game of dice presents herself as a forceful and articulate woman. It’s her wit that saves her husbands from becoming slaves of the Kauravas. Her incensed outrage at the attack on her modesty, her bitter lamentations to Krishna, her furious tirade against Yudhishthira for his seeming inability to defend her honour and many more such instances show her to be an aggressive woman. This persona is juxtaposed to her representations as an ideal wife elsewhere. However, Draupadi is never idealised as a perfect wife who endures the most severe trials without complaint. This honour is reserved for Sita in the Ramayana. She is also presented as a victim like Draupadi and voices her concern at her fate openly. However, her aggression is directed inwards as indicated by her action against the self which culminate in her union with the mother Earth.
Are the limited number of hymns ascribed to the Vedic women a signifier of their general status? Are the goddesses merely representational with no connection to the ideas and behaviour towards women? Did only princesses choose their spouses? Are the warrior women an exception? Such searching questions need to be addressed with due diligence.
While women studies are a good development there is a need to expand the horizons to include other varieties of human existence. We have narratives of fluid sexuality in various texts. The one year of Arjuna’s life spent as Brihallana and rebirth of Amba as Shikhandi are some interesting instances. The artefacts found at the site of Sheri Khan Tarakai include visibly hermaphroditic figurines. There is a need to understand the notions of the feminine, masculine, neuter, and other forms of gender and sexual identities. These will have ramifications for understanding the ideas of conjugality, family, community, society and even polity and spirituality.
CONCLUSION
Human civilisations were built by men as well as women, however, history writing has a huge male-bias. Women were confined to questions of status and position that were largely evaluated in terms of their roles in the domestic sphere.
Their treatment as wives and widows became a central focus of most research alongside their place in ritual or religious context. This made them peripheral to mainstream history. This was questioned by various scholars from time to time and led to the development of gendered understanding of history. Focusing attention on women’s history helps to rectify the method which sees women as a monolithic homogeneous category. Writing gender history has helped in building an image of the past that is wholesome and nuanced.
