INTRODUCTION
After India became independent, the Constitution gave the government the power to detain people preventively under Article 22, but it also provided procedural safeguards. The first law in independent India was the Preventive Detention Act of 1950, which lasted until 1969folowd by the Maintenance of Internal Security Act (MISA) of 1971, which expanded this power and was widely used during the Emergency of 1975–77. Records show that over 35,000 people were detained under MISA and other rules, including political leaders, journalists, and activists, to stop protests and maintain control.1 Even after the Emergency, preventive detention continued with laws like the National Security Act (NSA) of 1980, allowing detention up to 12 months, and the Unlawful Activities (Prevention) Act (UAPA) of 1967, which was strengthened later to tackle terrorism. According to the National Crime Records Bureau (2021), more than 1,10,000 people were placed under preventive detention across India, with over 24,500 still in custody by the end of the year2.
These modern laws show that the government still uses preventive detention to protect the state, a pattern that goes back to colonial India. During British rule, laws like the Bengal Regulation III of 1818 and the Rowlatt Act of 1919 allowed detention without trial and limited the role of courts. The main goal then was to stop uprisings and control the population, often giving more importance to the state than to individual freedom.
This shows that even after independence, the tension between state security and personal freedom has continued in India’s laws. Modern preventive detention laws, though made in a democracy, still give wide powers to authorities and limit court checks, reflecting a colonial style of control. Understanding this history helps us see why balancing state safety with personal rights is still very important in India today.
Statement of Problem
In India, preventive detention and security laws have a long history, from colonial laws like the to Emergency-era laws like MISA, and modern laws such as NSA and UAPA. These laws raise important questions about how to balance state security with individual freedom. Even though the Constitution protects rights under Articles 21 and 22, the government still has wide powers to detain people preventively, often with little judicial oversight. This creates a situation where fundamental rights can be limited in the name of national security. The main problem of this research is to study how these laws have developed over time, how they continue patterns from colonial rule, and whether modern laws and court decisions effectively protect personal freedom while maintaining state security.
Review of Literature
M.P. Jain, Indian Constitutional Law, discusses widely about the provisions of the Indian Constitution, including constitutional powers regarding the proclamation of emergency, the State’s power to enact security laws and the constitutional basis of preventive detention.
H. M. Seervai, Constitutional Law of India, this work provides a deep analysis of the Constitution along with caselaw centric analysis of concepts, including preventive detention and proclamation of emergency.
Kalhan et al., “Colonial Continuities: Human Rights, Terrorism, and Security Laws in India,” argue that many of India’s security and anti-terrorism laws after Independence come from British-era laws that were mainly meant to control people, not to protect their rights. It mainly focuses on the human rights perspective of the security laws.
Shubhangi Mukherjee et al., “Proclamation of National Emergency in India in 1975” This work analyses the political backdrop against which the emergency was proclaimed in 1975.
Violet Hazarika, “Rights of the People and National Emergency (1975-77): A Critical Analysis of a Debatable Era of Indian Politics” This work critically analyses the violation of the fundamental rights of the people by the government during the national emergency of 1975.
Chaitali Mungre, “An Analysis of the Emergency 1975” This paper explains that during the emrgency many civil liberties were taken away, freedom of speech was greatly restricted, and political opponents were jailed without proper legal process. It shows that democracy was weakened in the name of maintaining internal security.
HISTORICAL BACKGROUND
A. Colonial Governance through Security Laws
British colonial administration was autocratic and centralised, where the decision-making authority was vested in the British government and its representatives, and it also created the system of bureaucracy, forming a hierarchy to govern the country with the Governor General as the highest authority.3 The British governed their colonies mainly through policing. In India, the Indian Police Act, 1861 was introduced after the great revolt of 1857 with the intention to suppress any unrest or opposition against the colonial government that may risk losing their authority, since they intended to enforce colonial rule rather reducing crime.4 The British colonial administration in India relied heavily on preventive detention and administrative control to maintain public order and suppress political dissent.
The colonial governance in India relied on the provisions of emergency to curtail the rights of people by denying them fair trial, restricting freedom of expression, and prolonged detention, mainly to exert their authority in order to remain in power. The statutes passed during the colonial era serve as examples of how the British used law as an instrument to control the uprisings against them.
1. Preventive Detention as an Instrument of Control
The Bengal Regulation III of 1818 was the first-ever law by the British to introduce the concept of preventive detention. Under this regulation, the British government was given the power to detain any person if there was a suspicion that they might be involved in subversive activities against the government.5 This law enabled the Governor-General to deny formal legal procedures and issue warrants for the arrest and indefinite detention of any individual suspected of undermining the safety and security of the colonial regime.6 Though this enactment paved the way for preventive detention, the origin of the actual emergency provision is traced back to the Indian Council Act of 1861.
2. Executive Discretion
The Indian Council Act of 1861 gave a governance framework for the British, authorised the governor-general unilaterally to make ordinances in emergency situations and such ordinances were used to authorise administrative detention and to establish special tribunals to decide cases during wartime.7. In the same year, the police Act of 1861 was enacted. The police were structured as a centralised force under the Police Act of 1861, with a primary intention to suppress any unrest or opposition against the colonial government.8
The press, public meetings, and political activities were also regulated under laws such as the Vernacular Press Act (1878), ensuring that dissenting voices did not reach the public. To control the strong public opinion and seditious writing causing dissatisfaction with the government, the government enacted the Vernacular Press Act of 1878 to repress the indigenous press.9 Although laws against sedition already existed in the form of Section 124A of the Indian Penal Code, which was introduced in 1870 to deal with any form of sedition. The Indian Press Act 1910 was legislation enacted in British India that imposed strict censorship on all publications, and this act revived the extreme repressive provisions of the Vernacular Press Act of 1878.10
Subsequently, the Defence of India Regulation Act (1915) was enacted during the First World War to provide the colonial government with wide powers, like provisions enabling the civil and military authorities to detain individuals or impose other restraints on their personal liberty if they had grounds to suspect a person’s conduct was “prejudicial to public safety”.11 The British did not want to lose the control they had gained by enforcing this martial law, and hence they enacted the Rowlatt Act of 1919.
B. Colonial Control through Emergency Laws
The Rowlatt Act (1919), officially called the Anarchical and Revolutionary Crimes Act, was enacted after the end of World War I to extend the application of emergency laws even during peacetime, since the Act conferred broad power upon the government to combat revolutionary movements by ordering preventive detention.12 This Act provided discretion to the authority to not disclose the grounds for detention if it is of their opinion that it might endanger public safety, and also established Special courts to try such offences, and ordinary procedural protections did not apply to the accused, as it authorised in camera trial proceedings and denied the right to appeal.13 Later, the emergency provision was enumerated in the Government of India Act of 1935, in which section 45 reads as
“Power of Governor-General to issue Proclamations.
(1) If at any time the Governor-General is satisfied that a situation has arisen in which the government of the Federation cannot be carried on in accordance with the provisions of this Act, he may by Proclamation—
(a)declare that his functions shall, to such extent as may be specified in the Proclamation, be exercised by him in his discretion…”14
This Act strengthened the colonial executive’s emergency powers as it gave the provincial authorities, in concurrence with the Governor General, the power to declare an emergency and pass ordinances if they determined that there was a failure of the government to run according to the provisions of the Act.15
The recurring pattern of preventive detention, police control and administrative discretion in these statutes shows that the British considered the security of the state was more important than the individual liberties of a person, and they enacted such legislation with the intention to retain their power to ensure dominance over India. But such provisions have continued and found their place in the Indian Constitution.
HISTORICAL ANALYSIS
A. Constitutional Framework of Emergency
1. Proclamation of Emergency
Article 352 of the Constitution of India provides for proclamation of emergency by the President if he is satisfied there is a grave emergency exists that threatens the security of India or of any part of the territory by war or external aggression or armed rebellion, he may, by Proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof.16 Before the 44th Amendment, the term internal disturbance was in place of armed rebellion, which had a wider scope to declare an internal emergency.17 The emergency of 1975 was declared under the grounds of ‘internal disturbance’. In the case of Minerva Mills vs UOI, the scope of judicial review was extended to include whether the President had applied his mind and acted within his powers.18
Article 356 provides for the declaration of President’s rule in a state where the Governor of the State is satisfied that there is a failure of constitutional machinery, and thereby the power of the state legislature will be exercised by the Parliament.19
2. Suspension of Rights During Emergency
Article 358 suspends the right guaranteed under Article 19 during the period of emergency.20 Article 359 authorises the President to declare that the right to move any court for the enforcement of any of the rights conferred by Part III (except articles 20 and 21) to remain suspended for the period during which the Proclamation exists.21 Before the 44th Amendment, the Article restricted all the rights under Part III, including Articles 20 and 21. In the constitutional assembly debate on Article 359, it was argued that there was a universal agreement that fundamental rights are not absolute.22
This is also reflected in ADM Jabalpur vs Shivkant Shukla23, where Article 359 was strictly interpreted by the Supreme Court to hold that the right to enforce the fundamental rights under Article 32 and 226 is also suspended during the emergency and it was was effectively overruled by Justice K.S. Puttaswamy v. Union of India24, which reaffirmed that the right to life and personal liberty cannot be extinguished even during an emergency.
3. Constitutional Provisions of Preventive Detention
Article 22 (1) guarantees the rights of arrested persons to be informed of the grounds of their arrest and to be produced before a Magistrate within 24 hours, and also to have the right to have a lawyer.25 But these rights are limited to the persons detained under preventive Detention laws as per Article 22(3)26. According to Article 22(5), the authority making the detention order should disclose the grounds for detention to that person.27 In Madhab Roy vs. State of West Bengal, the Supreme Court held that the detention order becomes bad if the real facts are not disclosed and affects the right of the detenue to make an effective representation against his detention.28 Similarly, in Prakash Chandra vs. the Commissioner, Government of Kerala, the Supreme Court held that the ‘grounds’ used in Article 22(5) meant not only the conclusion of the facts but also all the materials on which such conclusion is based.29 But it can also be denied if they consider that such disclosure is against public interest (Article 22(6)). Such non-disclosure is for the detaining authority to decide. This shows the administratively driven character of the preventive detention laws.
Though Article 22(4) provides that no person can be detained for more than 3 months unless an Advisory Board confirms sufficient cause for detention, it can be overridden by any law made by the Parliament, and the maximum period of detention shall be prescribed by the Parliament (Article 22(7)). This provision does not oblige the Parliament to fix a maximum detention period limit.30 In the state of West Bengal vs Ashok Dey, it was held that it is valid to fix a period even in terms of a specific event, and not always mandatory to fix it in years or months.31
In A.K. Gopalan vs State of Madras, it was held by the Supreme Court that any preventive detention laws made by the state following the provisions of Article 22 are constitutionally valid.32 Similarly, in A.K. Roy vs UOI, the court rejected the claim that the National Security Act gives uncontrolled discretion to the detaining authority and upheld the constitutionality, but observed that the preventive detention laws should be used narrowly.33 These cases show that the fundamental right to personal liberty can be strictly restrained by the procedure established by law if it involves the security of the state, where we can see the principle of colonial governance in our constitution.
B. Security Laws during Emergency and its Colonial Resemblance
1. Background of Emergency 1975
The National Emergency in India, from June 25, 1975, to March 21, 1977, is remembered as one of the darkest periods in the country’s democratic history. It was declared under Article 352 of the Constitution by President Fakhruddin Ali Ahmed, on the advice of Prime Minister Indira Gandhi.34 The judgment of the in the Raj Narain case35, Allahabad High Court, in 1975, Justice Jagmohan Sinha ruled Indira Gandhi liable for exploiting government machinery during the election campaign and proclaimed her elections to be invalid and she was also forbidden from running in any elections for the following six years.36 Facing protests led by opposition leaders, as well as economic problems after the war with Pakistan, the emergency was proclaimed under the grounds of ‘internal disturbance’ under Article 352 of the Constitution.37 During this emergency, the Fundamental rights were denied as several preventive detention laws and security laws were amended to increase the detention period to detain protestors in order to suppress any disturbance against the state, and one of such laws was the Maintenance of Internal Security Act 1971.
2. Pre-Emergency Security Laws
Within a month of the enactment of the Indian Constitution in 1950, the Preventive Detention Act 1950 was introduced as a temporary measure, but it remained in operation till 196938. During the war between India and China in 1962, the Defence of India Act 1962 was introduced and this gave the Central government the power to create rules for ensuring the security, public order, and military operations of the State, and even during the wars with Pakistan in 1965 and 1971, the authorities continued to detain people under the Defence of India Act 1962.39 Later, the Unlawful Activities Prevention Act (UAPA) was passed in 1968, whereby this law, the State had the power to declare any organisation as illegal and could imprison anyone for interrogation if the said organisation or person threatened Indian sovereignty within its territory.40 Resembling the provisions of the Preventive Detention Act of 1950, the Maintenance of Internal Security Act of 1971 was enacted.
3. Governance of Laws in Force buring the Emergency
Preventive detention as a tool of suppression
According to the original MISA, as passed in 1971, a detainee had to be informed of the grounds of his detention within five days of his arrest, and the duration of the detention was up to six months.41 When the proclamation of emergency was in force, the Indian Government passed ordinances to subsequently amend the MISA Act, where the maximum limit for the duration of detention was increased till the emergency ends and also the grounds for detention were treated as confidential and not to be disclosed to the persons arrested.42 The prolonged detention period was challenged in the state of West Bengal vs Ashok Dey. It was held that it is valid to fix a period even in terms of a specific event, and not always mandatory to fix it in years or months.43 The right to appeal against the detention order was not granted under the Act, and the detention was not under the purview of judicial review.44
The provision of the Act explicitly stated “Notwithstanding anything contained in this Act or any rules of natural justice..” by clearly overruling the natural justice principle by denying the opportunity to the detainee to represent his side, and also the exception granted to the authorities not to disclose the grounds of detention made it even harder for them to fight for their case.45 As per the Shah Commission report, nearly 35,000 people were detained under preventive detention without trial during the emergency. The Defence of India Rules passed under the DOI Act of 1962 also faced an amendment in June 1975 to enact it in case of ‘internal security’ and ‘internal disturbance’ instead of enacting it only in terms of ‘defence in India’ and ‘external aggression’ during the emergency period.46 Rule 30 of the Defence of India Rules was the central provision used to detain persons without trial, subject to the satisfaction of the executive, and the grounds of detention need not be disclosed fully. This, along with MISA, acted as a solid instrument of detention.47 The 39th Amendment of the Indian Constitution, passed in August 1975, placed MISA in the 9th schedule of the Constitution, and thereby it became free from judicial review.48
In ADM Jabalpur case49, several habeas corpus petitions were filed in the Supreme Court on behalf of detained individuals, and these petitions challenged the legality of detentions under the MISA and the Emergency provisions. The petitioners argued that the suspension of fundamental rights violated their constitutional rights to life and liberty under Article 21. The Supreme Court, in a majority judgment, held that during a declared Emergency under Article 352, when Parliament authorises suspension of rights under Article 359, no person has the right to approach the courts for enforcement of fundamental rights, including the right to life and personal liberty. This shows that even the judiciary was reluctant to interfere in the executive decisions. But Justice Khanna strongly rejected the argument that the right to life and personal liberty exists only because of the Constitution. He held that the right to life is a natural and inherent right, which existed even before the Constitution and cannot be taken away merely by suspending the right to enforce fundamental rights. According to him, Article 21 is not the source of life and liberty but a constitutional recognition of pre-existing human rights.
This dissenting opinion directly challenged the colonial model of governance, where executive discretion was absolute and judicial oversight was very limited. Under colonial law of the Bengal Regulation 1818, the Governor General was granted power to detain a person for a prolonged period without conducting a trial, and similarly, under the colonial emergency law Rowlatt Act 1919, the executive authorities were granted the right to detain any person without disclosing the grounds of detention, and they were denied any judicial trial or right to appeal. The same was repeated through the unfair arrests and detention that took place during the emergency. The British used prolonged detention of the uprisers to retain their imperial authority over India, whereas the same is repeated during the emergency, where preventive detention was used as an instrument of control, thereby suppressing the people whom the Government thought would be a threat to their power by way of legislatures like MISA.
Freedom of the press
Upon the declaration of Emergency on June 25, 1975, control the media had become necessary to impose press censorship. The government disconnected the electricity to the newspaper offices when the Emergency was imposed.50 In February 1976, the Prohibition of Publication of Objectionable Matter Act, which was enforced as an ordinance since December 1975, was passed. It prohibited the publication of ‘words, signs or visible representations’ which might ‘bring into hatred or contempt or excite disaffection towards the government established by law in India or any state thereof and thereby cause public disorder,’ or ‘defame’ the President, the Vice-President, the Prime Minister, the Speaker of the Lok Sabha, and the Governors.51 It also empowered competent authorities to confiscate or shut down printing presses or forfeit the security deposit for printing “Objectionable matter”, which was broadly interpreted.52
Editors were required to get government clearance before publishing news, editorials, and photographs. Telex messages by foreign correspondents were restricted and subjected to prior screening, and the Board of Film Censors was restructured under the Cinematograph Act to tighten control over cinema.53 On 1 February 1976, the government merged four major news agencies, namely Press Trust of India (PTI), United News of India (UNI), Samachar Bharati and Hindustan Samachar, into a single entity named Samachar and the Press Council of India was abolished.54
Article 19(1) (a) of the Indian Constitution guarantees Freedom of Speech and Expression to all citizens of India, including the Press. The second part of Article 19 enumerates the restrictions on the Freedom of Speech and Expression. In Romesh Thapar v State of Madras,55 the Court invalidated the ban that was imposed on the journal Cross Roads, under Section 9(1A) of the Madras Maintenance of Public Order Act, 1949. The provision authorised the state government to prohibit the entry and circulation of documents deemed harmful to public order. A majority of the six-judge Bench held that the restriction was broader than what Article 19(2) then permitted. In 1951, the First Constitutional Amendment expanded the scope of Article 19(2), introducing additional grounds for reasonable restrictions, namely ‘public order’, ‘friendly relations with foreign states’ and ‘incitement to an offence’.56
In Virendra v State of Punjab57, the Court upheld a broad pre-censorship order prohibiting Pratap magazine from publishing content related to the “Save Hindi Agitation”. The Court accepted the State’s justification that the publication could provoke public disorder, especially in a communally sensitive climate. It refused to assess the necessity of the restriction, asserting that a presumption of abuse should not be made against the State. However, in Superintendent, Central Prison, Fatehgarh v Ram Manohar Lohia 58, the Court adopted a different approach. It held that restrictions on speech must have a clear and proximate link to public order. It struck down a provision used to detain socialist leader Ram Manohar Lohia, who had urged farmers to withhold irrigation payments. It established that the restriction must not be “far-fetched, hypothetical, problematic, or too remote in the chain of its relation with public order.”
The government used the security of the state and public order specified in Article 19 (2) as its defence for imposing strict control on the Press, and also the airwaves comprising the radio and television were under state control in India during 1975 by imposing restrictions through Article 19(2) on the print media. The government was successful in controlling the entire mass media.59 Unlike the early years of the Constitution, when courts played an active role in protecting freedom of the press, the judiciary during the Emergency remained largely silent on issues of press censorship.
Due to the suspension of the right to approach courts under Article 359, and the courts’ tendency to accept the executive’s claim of national security without close examination, there was very little judicial scrutiny of press restrictions. This lack of judicial intervention closely resembled the colonial period, when courts generally treated press control as a matter of executive policy. As a result, the Emergency continued an authoritarian legal culture in which executive power was placed above individual freedoms.
The comparison can be made with the colonial laws like the Vernacular Press Act and the Indian Press Act that imposed absolute restrictions on the press that reports against the rule of the British, since the writers considered the pen and paper as a weapon to fight against the colonial rule. Both during the colonial period and the Emergency, the press was not viewed as a democratic institution but as a possible threat to state authority. Colonial press laws such as the Vernacular Press Act, 1878 and the Indian Press Act, 1910, gave wide powers to the executive to impose prior restraint, seize printing presses, and suppress publications without effective judicial oversight. The censorship imposed during the Emergency followed the same pattern, where prior government approval, confiscation of printing presses, and the removal of independent regulatory bodies replaced constitutional protections with executive control. In both periods, censorship was justified using broad terms such as “public order” and “security of the state,” which allowed the authorities to apply the law arbitrarily and silence the opposition.
4. Amendments made in the Constitution during Emergency
The 38th amendment of 1975 was enacted during the emergency to make amendments in Article 352 with a view to making the presidential satisfaction final and conclusive, and also made it clear that the President could issue different proclamations of emergency on different grounds, whether or not there was already a proclamation in operation.60 The Supreme Court in the case of SKG Sugar v. State of Bihar61 held that the proclamation cannot be questioned on the ground of error of judgment or otherwise in courts. In Pram Nath v UOI62, the Delhi High Court held that the 38th Amendment was valid even though it excluded judicial review. Though the basic structure doctrine was enumerated in the Kesavananda Bharati case63, the courts were reluctant to include judicial review within its purview.
The 39th Amendment of 1975 made changes in Article 329, and Article 329A was added to exclude the court’s jurisdiction in election matters of the Prime Minister, and such matters were to be dealt only by the authorities established by the law of the Parliament.64 This was intended to overrule the decision of Raj Narayan case.65 This is yet again an example of how the law was used as an instrument of control in a democracy post-independence.
The 42nd Amendment Act of 1976 made significant changes to the Constitution, and one of such changes regarding emergency is that a proclamation under Article 352 can be issued for even a part of the territory.66 The main purpose of this amendment was to clarify that when an emergency occurred in a part of India, necessary actions could also be taken in other parts as long as the security of India is in threat.
A new provision, Article 31D, was added to enable the Parliament to make law to prevent anti-national activities, but this term was very broadly defined, and it could not be declared void on the ground that it violates Article 14, 19 or 31.67 During the Parliamentary discussion on the enactment of Article 31D, it was argued that there was a possibility of misuse of power by the bureaucracy. It came true since it resembles the colonial security laws.
The 44th Amendment Act of 1978, which was passed after the end of the emergency, reversed many amendments made in the 42nd amendment most importantly, the term ‘internal disturbance’ was replaced with ‘armed rebellion’.68 The article 359 was amended to provide power to suspend fundamental rights during the proclamation of an emergency, except Article 20 and Article 21, and Article 31D was repealed.69 The authoritarian constitutional amendments made in previous amendments were changed, and safeguards were provided in this amendment.
COMPARATIVE ANALYSIS
A. Post Emergency Laws
1. TADA 1985
The Terrorist and Disruptive Activities (Prevention) Act, 198570 (TADA) was enacted by the Indian Parliament in response to rising incidents of terrorism and separatist violence, particularly in Punjab, Assam, and Jammu and Kashmir. Though TADA was not formally a preventive detention law like MISA or NSA, its stringent detention provisions and procedural departures effectively functioned as a preventive detention mechanism, prioritising state security over individual liberty.
Under Section 20(4) of TADA, an accused could be detained for up to one year without filing a charge sheet, unlike the Criminal Procedure Code, which mandates a much shorter period. This provision enabled the State to keep individuals in prolonged custody based merely on suspicion of terrorist involvement, thereby undermining the principle of speedy trial. Section 21, confessions made to police officers were admissible as evidence, an exception to the general rule under the Indian Evidence Act. This provision reversed the burden of proof, placing the accused in a vulnerable position and increasing the likelihood of forced confessions. The Supreme Court in Kartar Singh v. State of Punjab 71 upheld the constitutionality of TADA but observed that there is a potential for misuse of this Act.
Official data showed that only about 4% of TADA cases resulted in convictions, demonstrating that the Act was often used for detention rather than prosecution72. Bail provisions were excessively restrictive, requiring courts to be satisfied that the accused was prima facie not guilty, reversing the presumption of innocence73. Although TADA was formally a penal law, its operation closely resembled preventive detention, as individuals were detained to prevent possible future threats rather than to punish proven offences resembling colonial laws.
2. POTA 2002
The Prevention of Terrorism Act, 200274 (POTA) was enacted in the aftermath of heightened terrorist activities in India, particularly following the 2001 Parliament attack. Although POTA was framed as a penal statute, its operation closely resembled preventive detention laws. Under Section 49, an accused could be detained for up to 180 days without filing a charge sheet, subject to judicial approval. Bail was extremely restrictive, as courts were required to be satisfied that the accused was prima facie not guilty, reversing the presumption of innocence. Section 32 allowed confessions made to police officers to be admissible as evidence.
In PUCL v. Union of India75 (2004), the Supreme Court examined the constitutional validity of the Prevention of Terrorism Act, 2002 (POTA), where it was upheld, but the court observed the potential for misuse similar to the Kartar Singh case. POTA was repealed in 2004 by the newly elected government on the grounds that it was draconian and prone to misuse.
3. NSA 1980
The National Security Act, 198076 (NSA), is a preventive detention law enacted to empower the State to detain individuals without trial in the interest of national security. Unlike TADA, NSA is purely preventive in nature, allowing detention based on anticipated future conduct rather than past criminal acts. Under Section 3 of the NSA, the Central Government, State Government, or District Magistrate, with the approval of the State government, may order detention if they are satisfied that such detention is necessary to prevent a person from acting in a manner prejudicial to the security of the State, public order, or the maintenance of supplies and services essential to the community. Under section 13, the maximum period for which a person can be detained is 12 months. When the constitutional validity of the in AK Roy v. UOI77 was challenged by arguing that Section 3 gives uncontrolled discretion to the authority, the court rejected it by observing that the inbuilt safeguards within this act do not make it unconstitutional.
4. UAPA 1967
The Unlawful Activities (Prevention) Act, 1967 78(UAPA), though originally introduced to deal with secessionist movements, the scope of the Act was significantly expanded after the repeal of POTA, particularly after later amendments, transforming into the primary anti-terror legislation in India. Under Section 43D(2), an accused person may be detained for up to 180 days without the filing of a charge sheet, and Section 43D(5) imposes extremely stringent bail conditions by requiring courts to deny bail if a prima facie case is made out by the prosecution.
This reverses the presumption of innocence and results in prolonged detention without trial. The Act further gives wide discretionary powers in the executive, particularly after the 2019 amendment, which authorises the Central Government to designate individuals as terrorists without prior judicial determination.79
The post-emergency laws have provisions imposing restrictions on bail, and allow prolonged detention that does not have much of a difference when compared with security laws during the emergency and even the colonial security laws.
B. Recent Judicial Trends
In recent times, the judiciary has shown a liberal approach in interpreting security laws to secure bail and to ensure procedural safeguards to assure the right to liberty of the individual, rather than strictly adhering to the provisions of the law. In National Investigation Agency v. Zahoor Ahmad Shah Watali 80was accused was charged under the UAPA for allegedly funding and supporting terrorist activities, and sought bail during the investigation. The Supreme Court held that under Section 43D(5) of the UAPA, courts must accept the prosecution’s case at face value at the bail stage and cannot examine the credibility of evidence, making bail extremely restrictive.
Similarly, in K.A. Najeeb vs UOI81 accused was arrested under the UAPA and remained in prolonged custody for several years as the trial showed no likelihood of early completion. The Supreme Court granted bail, holding that even under UAPA, constitutional courts can protect personal liberty when there is excessive delay in trial, and statutory restrictions on bail cannot override Article 21.
In Ameena Begum v. State82 (2023), the Court emphasised that preventive detention is an exceptional measure meant for emergency situations and should not be used routinely. In Annu @ Aniket v. UOI83 was preventively detained under the National Security Act, 1980, on the ground that his alleged criminal activities were prejudicial to public order. The High Court quashed the detention, holding that preventive detention under the NSA cannot be used as a substitute for ordinary criminal law when the acts relate only to law and order and not public order.
Though the judiciary at the initial period of post-emergency rejected the challenge of potential misuse, the recent judicial trends show that the courts are very stringent on following procedural safeguards and granting the right to liberty to the accused.
C. Comparative Analysis with Colonial Laws
The comparison of colonial laws, Emergency-era laws, and post-Emergency security laws clearly shows that the use of law as a tool of state control has continued over time. During the colonial period, laws such as the Bengal Regulation III of 1818, the Rowlatt Act of 1919, and press laws like the Vernacular Press Act gave wide powers to the British executive to detain people without trial, suppress opposition, and restrict basic freedoms in the name of public safety and security of the state. These laws placed state power above individual liberty and relied heavily on preventive detention, police control, and executive discretion. The same approach was repeated during the Emergency of 1975–77, when laws like the Maintenance of Internal Security Act (MISA) and the Defence of India Rules allowed prolonged detention without disclosing grounds, suspended access to courts, and imposed strict censorship on the press.
The judiciary also largely supported executive actions, as seen in ADM Jabalpur v. Shivkant Shukla. After the Emergency, although constitutional democracy was restored, laws such as TADA, POTA, NSA, and UAPA continued to follow a similar pattern. These laws permit long detention periods, impose strict bail conditions, and give wide discretionary powers to the executive.
Even though courts have sometimes protected personal liberty, the overall structure of these laws shows a continued preference for state security over individual rights.
CONCLUSION
The historical analysis shows that colonial rule left a lasting impact on India’s approach to security laws. Even after independence, similar tools like preventive detention, executive powers, and control over the press were used during the Emergency and still exist in modern laws like the NSA and UAPA. Although the Constitution guarantees fundamental rights, these laws show that state security was often considered more important than individual freedom, continuing the colonial way of thinking.
At the same time, recent judicial decisions show that courts are trying to balance security and individual rights. Cases like Ameena Begum and K.A. Najeeb show that courts can limit government power and protect personal liberty. Overall, this shows that even though India’s legal system has changed over time, the conflict between state control and personal freedom, which started during colonial times, still affects its security laws today.
Way Forward
1. The law shall strictly mandate maximum detention limits. Any extension beyond such limits must require the court’s approval.
2. Every detainee must have immediate access to a lawyer upon detention to ensure their right to representation.
3. Establish a permanent Parliamentary or Statutory Committee to review all preventive detention cases through periodical audits, and also publish reports, and give suggestions.
4. All detention orders, durations, and grounds should be recorded in a digital registry accessible to courts and committees in order to prevent prolonged detention and ensure accountability of the detaining authorities.
5. All national security laws shall be reviewed periodically, and effective changes shall be made to the provisions accordingly.
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Footnotes
1. Shah Commission of Inquiry, Report of the Commission of Inquiry on the Emergency in India (1975–1977) (1978)
2. National Crime Records Bureau, Crime in India 2021 (2022)
3. Dhiraj Barman, “British Colonialism and the Indian State: Administrative Evolution of India”11 IJHSSS 489 (2025)
4. Harrison Akins, “The strategic logic of policing in British India” 34 SWI 828 (2023)
5. Tripti Paliwal and Rudra Sachdeva, “Evolution of Preventive Detention: Legislative and Judicial Trends in India” 44 JPT 2936 (2023)
6. Mark Condos, “Emergency, Exception, and the Colonial Rule of Law: The Case of British India” 14 FWWS 29 (2023)
7. ANIL KALHAN, GERALD P. CONROY, et.al., “COLONIAL CONTINUITIES: HUMAN RIGHTS, TERRORISM, AND SECURITY LAWS IN INDIA” 20 CJAL 94 (2006)
8. Supra note 3
9. Anushka, Vernacular Press Act: The Power Of The Press And Speech available at: https://getlegalindia. com/vernacular-press-act/#Story_Behind_The_Vernacular_Press_Act (last visited on 26 December 2025)
10. ibid
11. Supra note 5
12. supra note 6 at 125
13. ibid
14. Government of India Act 1935, s. 45
15. supra note 6 at 134
16. The Constitution of India, art. 352
17. M.P. Jain, Indian Constitutional Law (8th edn, LexisNexis 2019)
18. 1980 AIR 1789
19. The Constitution of India, art. 356
20. The Constitution of India, art. 358
21. The Constitution of India, art. 356
22. Constituent Assembly Debates, available at: https://www.constitutionofindia.net/constitution-assembly-debates/ (last visited on 27 December 2025)
23. 1976 (2) SCC 521
24. (2017) SCR 147
25. The Constitution of India, art. 22
26. ibid
27. ibid
28. (1974) 02 SC CK 0042
29. 1986 SC 687
30. Supra note 16
31. AIR 1972 SC 1660
32. AIR 1950 SC 27
33. 1982 (1) SCC 27
34. Shubhangi Mukherjee, Dzewe U Tsido, et.al., Proclamation of National Emergency in India in 1975, 2 IJPLM 40 (2023)
35. AIR 1975 SUPREME COURT 2299
36. CHAITALI MUNGRE, AN ANALYSIS OF THE EMERGENCY 1975, 1 IJALR 1(2023)
37. Supra note 16
38. ibid
39. Gopal Krishan, Preventive Detention in India: A Legal Perspective, available at: https://anvpublication.org/Journals/HTML_Papers/International%20Journal%20of%20Reviews%20and%20Research%20in%20Social%20Sciences__PID__2019-7-2-29.html (last visited on 27 December 2025)
40. ibid
41. Violet Hazarika, RIGHTS OF THE PEOPLE AND NATIONAL EMERGENCY (1975-77): A CRITICAL ANALYSIS OF A DEBATABLE ERA OF INDIAN POLITICS, 11 IJM 1212 (2020)
42. MAINTENANCE OF INTERNAL SECURITY ACT, 1971 (Act 26 of 1971), s.16A
43. 1972 AIR 1660
44. Supra note 40
45. Supra note 41
46. Supra note 40
47. Ibid
48. ibid
49. Supra note 22
50. Supra note 40
51. Supra note 40
52. Dr. Jhumur Ghosh, INDIRA GANDHI’S CALL OF EMERGENCY AND PRESS CENSORSHIP IN INDIA: THE ETHICAL PARAMETERS REVISITED, 7 GMJ 1 (2017)
53. Factsheet A timeline of legal and political actions during the Emergency available at: https://pib.gov.in/FactsheetDetails.aspx?Id=149224®=3&lang=2 (last visited on 27 December 2025)
54. ibid
55. 1950 AIR 124
56. The Constitution of India (First Amendment) Act, 1951.
57. 1957 AIR 896
58. 1960 AIR 633
59. J.NISSHA, Emergency Provisions In The Indian Constitution: A Study Of The “Internal Disturbance” Of 1975, 2 IJLRA 20 (2022)
60. Supra note 16
61. 1974 AIR 1533
62. Neutral Citation Number: 2023:DHC:3661-DB
63. 1973 4 SCC 225
64. Supra note 16
65. Supra note 16
66. ibid
67. ibid
68. ibid
69. ibid
70. THE TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987 (Act No. 28 of 1987)
71. 1994 SCC (3) 569
72. “How India’s terror laws evolved”, THE TIMES OF INDIA, Jul. 29,2019
73. ibid
74. The Prevention of Terrorism Act, 2002 (Act 15 of 2002)
75. AIR 2004 SUPREME COURT 1442
76. The National Security Act, 1980 (Act 65 of 1980)
77. 1982 AIR 710
78. THE UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967 (Act 37 of 1967)
79. ibid
80. AIR 2019 SUPREME COURT 1734
81. AIR 2021 SUPREME COURT 712
82. SLP (Criminal) No. 8510 of 2023
83. NEUTRAL CITATION NO. 2025:MPHC-JBP:9016