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taksalurmi2020
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© © All Rights Reserved
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Advanced arguments:

1. Prevention detention law do not infringe upon other fundamental rights:

1.1. Under Article 19: “All citizens shall have the right… (d) to move freely throughout the
territory of India; (e) to reside and settle in any part of the territory of India.”
I request the Honourable Court that, Article 19 should be interpreted independently of Article
21 and Article 22, meaning that Article 19 rights, such as the right to freedom of movement,
should not interfere with preventive detention cases governed by Articles 21 and 22. Preventive
detention was specifically covered by Article 22, which permits limitations on freedom of
speech and movement in cases of detention for public security and potential national threat, to
ensure he may not spread disaffection or indulge in dangerous activities in the places he visits.

The same consideration applies to the cases of persons who are interned or externed. Hence,
externment and interment forms of restriction on movement have always been treated as
kindred matters belonging to the same group of people, and the rule which applies to one must
necessarily apply to the others. Thus, the preventive detention laws could not be challenged on
the grounds of violating Freedom of Movement under Article 19.

1.2 Under Article 21: “No person shall be deprived of his life or personal liberty except
according to procedure established by law.”Article 21's phrase "procedure established by law"
refers only to the existence of a legally valid procedure established by the legislature, regardless
of its fairness or reasonableness. the Indian Constitution's framers intentionally chose
"procedure established by law" instead of the American phrase "due process of law," indicating
a preference for a narrower scope, as long as the law was validly passed by the legislature, it
would satisfy the procedural requirement in Article 21.

Article 21, which protects life and personal liberty, should not be applied to preventive
detention cases because Article 22 explicitly addresses the legal standards and procedures for
such detentions. Article 21 is applied to general deprivations of life and liberty, whereas Article
22 deals specifically with preventive detention, allowing for lawful detention without requiring
additional safeguards.

By emphasizing this differentiation, the preventive detention under Article 22 should not need
to meet any further tests of fairness or reasonableness under Article 21, as Article 22 provides
an exclusive framework for such situations.
2. There exists a substantive connection between Articles 19 and 21 of the Indian
Constitution that mandates a broader interpretation of personal liberty, or if they
should be regarded as distinct and separate rights.

2.1 It is humbly submitted that Articles 19 and 21 of the Indian Constitution serve distinct
purposes and should not be conflated into a singular interpretation regarding personal liberty.
While both articles are essential to safeguarding individual rights, they function within different
frameworks, reflecting the Constitution’s nuanced approach to civil liberties and state powers.

Article 19 provides specific freedoms, including the rights to speech, assembly, movement,
and profession, but permits reasonable restrictions in the interests of public order, morality, or
security. Article 21, in contrast, guarantees that no person shall be deprived of life or personal
liberty except according to the procedure established by law, offering a broader safeguard
against arbitrary deprivation.

2.2. These articles offer complementary but distinct layers of protection. Article 19 protects
explicit freedoms with specific limitations, while Article 21 ensures a fundamental guarantee
against undue restraint, thereby addressing different circumstances and legal standards.

Preventive detention laws, enacted to address threats to public order, operate under a unique
paradigm. While preventive detention laws may restrict individual freedom, they are
constitutional when adequate safeguards exist, balancing personal liberty with the need for
societal protection. Thus, Articles 19 and 21, while integral to individual rights, should be
interpreted within their respective contexts, upholding both civil liberties and public welfare.
3. Preventive Detention Act, particularly Section 14, is constitutional and adheres to
the principles of natural justice and due process as required by Article 22 of the
Indian Constitution.

3.1. Adherence to the Principles of Natural Justice and Due Process


It is humbly submitted that the Preventive Detention Act, 1950, particularly Section 14, is
constitutionally valid as it adheres to the principles of natural justice and the requirements set
out under Article 22 of the Indian Constitution. Preventive detention is a critical instrument in
safeguarding public order and national security, especially in a diverse and populous nation
like India. The legislation is within the legislative competence of Parliament and is designed to
protect against internal threats that may disrupt societal harmony.

3.2. Article 22 and Its Application to Preventive Detention


The Respondent submits that the framers of the Constitution explicitly provided for preventive
detention under Article 22. Article 22(3) states that individuals detained under preventive
detention laws do not have the same protections as those available in punitive detention.
Specifically, Article 22(5) requires that the detained person be informed of the grounds of their
detention and given an opportunity to make a representation against the detention order. This
requirement, provided under Article 22, aims to prevent arbitrary detention, thus offering a
framework of due process that is specific to preventive detention.

The Supreme Court, in A.K. Roy v. Union of India (1982), recognized that natural justice
principles must be interpreted contextually within preventive detention, acknowledging that
certain procedural differences are necessary given the state’s need to act swiftly against threats.
Thus, while natural justice is vital, its application within preventive detention law must be
balanced against the practical demands of national security and public order.
4. The Scope of Judicial Review in Preventive Detention Cases

4.1. Limited Scope of Judicial Intervention in Preventive Detention


It is humbly submitted that the scope of judicial review in preventive detention cases is
deliberately limited to respect the government’s responsibility to protect national security.
The judiciary’s role is not to review the substantive grounds of detention but to ensure
compliance with statutory procedures. In Kharak Singh v. State of U.P., the Court
underscored that preventive detention serves a critical function in maintaining public order
and should not be undermined by broad judicial interference.

4.2. Judicial Review to Ensure Compliance with Procedural Safeguards


Judicial review in preventive detention is limited to verifying that procedural safeguards, as
per the Preventive Detention Act, were adhered to, thereby protecting against arbitrary
actions. In Munn v. Illinois (1877), the U.S. Supreme Court recognized that the state has the
authority to enact laws for public welfare, even if certain freedoms are curtailed. By analogy,
the Indian judiciary’s review in preventive detention should focus on procedural adherence
rather than evaluating the subjective assessment of threats.

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