The Goondas Act: Is India's reliance on preventive detention undermining rule of law?

April 2010. Ramakrishnan was already behind bars, arrested for allegedly re-labelling expired medicines with fresh expiry dates before putting them back into the market. No court had granted him bail. Yet, the Tamil Nadu government concluded that the ordinary criminal process was not enough. It detained him under the state’s Goondas Act on the ground that, if released, he could threaten public order in future.

Under the old penal code, Ramakrishnan could have faced charges such as Section 420 (cheating) and Sections 468 and 471 (related to forgery), each carrying up to seven years imprisonment and penalty. Had the Goondas Act not been invoked, he would have remained in custody only so long as the courts denied him bail. Preventive detention allowed the government to keep him inside to prevent what it believed could be future acts detrimental to public order.

When the matter reached the Supreme Court in 2011, the judges issued a warning that has echoed through India’s constitutional jurisprudence since: preventive detention is “repugnant to democratic ideas and an anathema to the rule of law”. Extraordinary executive powers, they said, cannot substitute for ordinary criminal prosecution merely because the state anticipates future misconduct.

Fifteen years later, that warning has acquired fresh relevance. It has been nearly two years after India replaced its colonial-era criminal laws with the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita and Bharatiya Sakshya Adhiniyam, promising a faster, tech-driven, tougher criminal justice system. But governments across the political spectrum continue to repose faith in one of the Constitution’s oldest and most controversial powers: preventive detention.

The latest example is West Bengal, where the newly enacted Public Safety and Control of Anti-Social Activities Act empowers authorities to detain individuals for up to one year to prevent anticipated threats to public order. The legislation has predictably triggered political controversy, but it also revives a much larger constitutional question that extends far beyond one state or one government.

Unlike most liberal democracies, India does not merely tolerate preventive detention; it expressly permits it. Article 22 empowers Parliament and state legislatures to enact such laws, while prescribing safeguards like communicating the grounds of detention and requiring an independent advisory board to periodically review detention orders. At the same time, Articles 14 and 21 guarantee equality before law and protection of personal liberty. That tension—between the individual’s right not to be deprived of liberty except through due process and the state’s responsibility to prevent threats before they materialise—has shaped Indian constitutional law since 1950. Today, preventive detention exists in many forms.

Uttar Pradesh, which has extensively used its Goondas Act, argues that preventive action has curbed repeat criminality in areas plagued by extortion, land grabbing and gang violence. In Gautam Buddh Nagar alone, authorities externed hundreds of alleged habitual offenders under the act in 2024 and 2025. Yet the judiciary has repeatedly reminded governments that preventive detention is an exceptional power, not a convenient policing tool. The Allahabad High Court has struck down detention orders passed mechanically or without material linking the accused to a genuine threat, and in one case imposed costs of Rs5 lakh on the Gorakhpur district administration after finding proceedings had been initiated maliciously to harass a citizen.

Similarly, the National Security Act (NSA) has often been invoked where governments believe ordinary criminal law is insufficient. One high-profile example was the detention of pro-Khalistan preacher Amritpal Singh in 2023. After his arrest following a statewide manhunt in Punjab, authorities invoked the NSA and shifted him to a prison in Assam. His continued activities and influence, they argued, posed a threat to public order and national security and could reignite separatist mobilisation if he remained in Punjab.

The NSA is only one part of India’s preventive detention architecture, alongside the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, and, in Jammu and Kashmir, the Public Safety Act. Several states have enacted their own laws, underscoring the continuing reliance of governments across political parties on these powers.

Professor K.A. Pandey of National Law University, Lucknow, believes the debate often begins with the wrong question. “The issue is not whether states have the power to enact preventive detention laws,” he tells THE WEEK. “The challenge is whether the law itself, and more important, its implementation, satisfies constitutional safeguards.” Prevention, he adds, has always been a part of law enforcement. “Routine police patrolling, externment orders and preventive measures under criminal procedure all seek to stop offences before they occur,” he says. “Prevention is better than cure. When there is a real possibility of crime, the police have a duty to prevent it.”

For governments confronting organised crime, extortion, communal violence or habitual offenders, prosecution alone is often viewed as inadequate—investigations take time, witnesses are intimidated, trials stretch for years. So preventive detention is used as an administrative tool to neutralise perceived threats immediately. Yet it is precisely this extraordinary power that has repeatedly attracted judicial scrutiny.

The Goondas Act drew national attention in 2024 when Tamil YouTuber Savukku Shankar was detained under it after his arrest in multiple cases, including one over allegedly derogatory remarks against women police personnel. Though he had secured bail in some cases, the Tamil Nadu government argued his continued activities threatened public order. While granting him interim bail, the Supreme Court questioned the state’s resort to preventive detention and expressed concern over the Madras High Court’s delay in deciding Shankar’s habeas corpus petition. The Madras High Court later quashed the detention, warning it cannot be used mechanically to prolong incarceration or stifle free speech. Such an approach, it added, risked taking the country “back to colonial times”.

For senior advocate Sanjoy Ghose, the larger question is whether India needs additional preventive detention laws at all after the BNS. “If there is a breakdown of law and order, the answer is to enforce the BNS and other existing laws effectively, not to keep creating new preventive detention laws,” he says. Preventive detention, he emphasises, is only an exception. “There must be valid reasons. Those reasons must be communicated. Ultimately, every detention must withstand judicial scrutiny,” he says.

The concern, says Ghose, is not merely about individual statutes but about the gradual normalisation of exceptional executive powers. “The balance has to be maintained,” he says. “You cannot say liberty is absolute. Equally, you cannot make it so difficult to protest, organise or exercise constitutional freedoms that the exception becomes the rule.... The strength of a democracy lies in how much dissent it can tolerate.” Courts, he adds, should use every case as an opportunity to strengthen constitutional safeguards and prevent future misuse. “Liberty is too valuable for the judiciary to simply dispose of a case because a detention order has been withdrawn,” he says.

According to senior advocate Virag Gupta, every preventive detention law must meet three tests. First, it must comply with Article 22, which specifically governs preventive detention. Second, the procedure prescribed must satisfy the constitutional requirement of fairness flowing from Articles 14, 19 (freedom of speech and expression) and 21. Third, the legislation should not confer vague or excessive discretionary powers capable of arbitrary exercise.

Referring to the West Bengal legislation, Gupta points to provisions denying legal representation before the advisory board and permitting prolonged detention as likely to face challenge. “Beginning with the Maneka Gandhi case (her passport was impounded “in public interest” in 1977), the Supreme Court has consistently held that every procedure affecting liberty must be fair, just and reasonable,” he says. “If preventive detention is used against organised criminal syndicates threatening public order, the courts may view it differently. But if it is invoked against political opponents or on mere assumptions without credible material, detention orders can always be challenged.”

One of the least understood aspects of preventive detention is the advisory board mechanism. Almost every statute requires detention orders to be reviewed by an independent board, generally comprising serving or retired judges, within a prescribed period. Yet, unlike an ordinary trial, the detainee lacks the full range of procedural protections—cross-examination is absent, evidence is often confidential and, in many statutes, there is no unrestricted right to legal representation before the board.

For Pandey, this is the next frontier of constitutional litigation. He calls the denial of legal representation “a grey area” in Indian constitutional law. “Article 21 jurisprudence has evolved enormously over the last four decades,” he says. “Courts have expanded procedural fairness in criminal trials. Preventive detention proceedings have not witnessed the same constitutional evolution.” He believes courts may eventually hold “that meaningful legal representation should be available from the very beginning of preventive detention proceedings”.

The debate over preventive detention also exposes a deeper institutional reality. The BNS may have modernised substantive criminal law, but it has not eliminated the structural weaknesses that have long plagued India’s criminal justice system. Reducing dependence on preventive detention, says Pandey, ultimately requires restoring confidence in ordinary law enforcement. “Once trust between the police and citizens improves, there will be far fewer situations requiring preventive detention,” he says. “Today, witnesses are often reluctant to cooperate because they fear reprisals. That compels the police to seek extraordinary preventive measures.”

None of the experts believes such laws will disappear anytime soon. “As long as Article 22 remains part of the Constitution, preventive detention will continue to exist,” says Pandey. “Future litigation is likely to focus not on whether such laws can exist, but on vague statutory language, excessive executive discretion and stronger procedural safeguards.”

THE GOONDAS ACT

Refers to various state-level preventive detention laws that allow authorities to detain a person to prevent activities likely to disturb public order.

Constitutional basis: Article 22

Who can be detained?

◆ Habitual offenders

◆ Bootleggers

◆ Drug offenders

◆ Cyber offenders

◆ Sexual offenders

◆ Other organised criminals (varies by state)

◆ Maximum detention: Up to 12 months

How it works

◆ Detention order issued by state government/district magistrate

◆ Grounds of detention communicated

◆ Detainee can make a representation

◆ Case referred to the advisory board

◆ Government confirms or revokes detention based on board's opinion

Advisory board

◆ Independent statutory body

◆ Usually comprises serving or retired High Court judges

◆ Reviews every detention order for sufficient cause

◆ If no sufficient cause found, detainee must be released