Everything You Need To Know About

17 May 2024 : Indian Express Editorial Analysis

1. A right to fairness

Topic: GS2 – Polity – Indian constitution – Significant provisions
  • In a landmark ruling, the Supreme Court, often criticized as an “executive’s court,” reaffirmed its dedication to upholding due process of law.
  • The 41-page judgment by Justices Sandeep Mehta and B.R. Gavai, in the case of Newsclick founder-editor Prabir Purkayastha, emphasized the importance of due process, a fundamental right and a measure of a civilization’s maturity.
  • Purkayastha had not been informed of the “grounds of arrest” before being presented to the Additional Sessions Judge (ASJ), who subsequently issued a remand order.
  • The Supreme Court’s verdict underscored the necessity of providing specific grounds for arrest to ensure the right to life and personal liberty, highlighting the violation when these grounds are not communicated.

Historical and Legal Background of Due Process:

  • The concept of due process dates back to the Magna Carta (1215), which emphasized procedural rights, though initially for nobles.
  • The term “due process” appeared later in British law under King Edward III and was significantly incorporated into the American Constitution’s Fifth and Fourteenth Amendments, which ensured that life, liberty, and property could not be deprived without due process of law.
  • In India, the history of due process is complex and fraught with setbacks. Initially embraced by the framers of the Indian Constitution, the due process clause was ultimately diluted and replaced with “procedure established by law” under the influence of constitutional advisor B.N. Rau.

Evolution of Due Process in Indian Jurisprudence:

  • Despite its initial omission from the Indian Constitution, due process gradually gained judicial recognition.
  • The Supreme Court’s early judgments, such as in A.K. Gopalan (1950), adhered to a literal interpretation of “procedure established by law,” often at the expense of fundamental rights.
  • However, the landmark Maneka Gandhi case (1978) marked a significant shift, with Justice Fazal Ali’s dissent advocating for due process becoming the majority opinion.
  • This expanded the scope of Article 21, requiring laws to be reasonable, fair, and just.
  • The 44th Amendment (1978) further entrenched the right to life and personal liberty as non-derogable rights, even during emergencies.

Contemporary Relevance and Preventive Detention:

  • Despite these advancements, India’s legal landscape still grapples with stringent preventive detention laws, a colonial legacy prone to abuse.
  • The Supreme Court, in the Pramod Singla case (2023), criticized these laws, stressing the importance of rigidly adhering to procedural safeguards.
  • However, preventive detention remains prevalent, with over 12,000 people detained under such laws in 2021 and 76% of prison inmates being under trial in 2022, as per the National Crime Records Bureau (NCRB).
  • The unimplemented part of the 44th Amendment regarding preventive detention continues to highlight the tension between legislative power and fundamental rights.


  • The Supreme Court’s recent judgment in Purkayastha’s case serves as a reminder of the judiciary’s role in protecting individual rights against arbitrary state power.
  • By delineating between the general “reasons of arrest” and the specific “grounds of arrest,” the Court reinforced the substantive aspect of due process.
  • This ensures that the procedural requirements are not just formalities but are vital protections against state overreach.
  • The ongoing challenges with preventive detention laws underscore the need for continued vigilance and judicial activism to safeguard democratic principles and human rights in India.
What is Preventive Detention?

  • Laws authorising preventive detention existed in British colonial rule in India since 1818.
  • The Defence of India Act of 1915 was passed on the outbreak of the First World War, and the same was repeated in connection with emergency regulations made during the Second World War.
  • Both have provisions of preventive detention i.e., detention of a person without trial and conviction.


  • Preventive detention means the detention of a person without trial and conviction by a court. Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the near future.
  • The detention of a person cannot exceed three months unless an advisory board reports sufficient cause for extended detention.

Grounds for Preventive Detention:

  • State security
  • Public order
  • Foreign Affairs, etc.

Two Types of Detentions:

  • Preventive detention is when a person is held in police custody only on the basis of a suspicion that they would conduct a criminal act or cause harm to society.
  • The police have the authority to hold anyone they suspect of committing a criminal offence and also to make arrests without a warrant or a magistrate’s authorisation in certain cases.
  • Punitive detention which means detention as a punishment for a criminal offence. It occurs after an offence is actually committed, or an attempt has been made towards the commission of that crime.


  • Article 22 grants protection to persons who are arrested or detained.
  • It has two parts—the first part deals with the cases of ordinary law and the second part deals with the cases of preventive detention law.
  • The article makes it mandatory for preventive detention laws to form advisory boards consisting of persons qualified to be High Court judges.
  • Under different laws, review boards must assess detention orders every three months to determine if there’s enough reason for preventive detention. They examine evidence, request more information if needed, listen to the person detained, and then report if the detention was justified or not.

Safeguards Available to the Detained Person:

  • A person may be taken to preventive custody only for 3 months.
  • The period of detention may be extended beyond 3 months, only after approval by the Advisory Board.
  • The detainee has the right to know the grounds of his/her detention.
  • However, the state may refuse to tell the grounds if it is necessary to do so in the public interest.
  • The detainee is provided an opportunity to challenge his/her detention.
PYQ: Consider the following statements: (2023)

1. According to the Constitution of India, the Central Government has a duty to protect States from internal disturbances.

2. The Constitution of India exempts the States from providing legal counsel to person being held for preventive detention

3. According to the Prevention of Terrorism Act, 2002, confession of the accused before the police cannot be used as evidence.

How many of the above statements are correct?

(a) Only one

(b) Only two

(c) All three

(d) None

Answer: (a)

Practice Question:  Discuss the evolution of the concept of “due process of law” in Indian jurisprudence. How has the Supreme Court’s interpretation of this concept impacted the protection of fundamental rights in India? Provide relevant case laws to support your answer. (250 words/15 m)


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