Delhi protests against CEC: What the law says about preventive detention | Explained

The story so far: Several activists and students were among the over 5,000 protestors detained by the Delhi Police, as they tried to reach Jantar Mantar for the protest demanding the resignation of Chief Election Commissioner Gyanesh Kumar and a rollback of the SIR. In the lead up to the protests in Delhi, there was a nationwide crackdown on protesters by the police force. Among those detained and brutally manhandled by the Delhi police were leaders of various political factions, former Chief Ministers, the Leader of the Opposition, lawyers, journalists and reportedly people who were not even part of the protest. Police detained people at representatives' residences even before the protest started, and en route to the protest site. However, the Supreme Court on Sunday (October 11, 2026) directed the Centre and the Delhi Police to ensure free movement of people ‘subject to law and order’.

This prompts an understanding of what preventive detention is, how can it be imposed and how did it came into practice.

What is preventive detention?

‘Preventive detention’ means detention of a person without a trial or conviction by a Court. The primary objective of preventive detention is not to punish an individual for a past offence but to prevent him from committing an offence in future.

Power of preventive detention can be exercised by the authorities on the grounds of public order, security of state and law and order.

The National Security Act, 1980 (NSA) allows for preventive detention if the government is satisfied that a person’s activities are prejudicial to the defence of India, the relations of India with foreign powers, or the security of the state.

What is the prohibitory order under the BNSS?

Section 163 BNSS largely retains the spirit of its predecessor, Section 144 of the Code of Criminal Procedure, 1973. It empowers a District Magistrate, a Sub-Divisional Magistrate, or any other Executive Magistrate specially empowered by the State Government, to issue orders when there is sufficient ground for proceeding and immediate prevention or speedy remedy is desirable. The primary objective is to prevent obstruction, annoyance, or injury to any person lawfully employed, or danger to human life, health, or safety, or a disturbance of the public tranquillity, or a riot, or an affray. The provision is preventive in nature, designed to avert potential harm rather than to punish past acts. The Magistrate must be satisfied that there is an urgency that necessitates an immediate order, even without prior notice to the affected parties.

The power is extraordinary and is intended for situations where the normal course of law enforcement might be too slow to prevent immediate harm. The order must clearly state the material facts upon which it is based, ensuring transparency and providing grounds for potential challenge.

Furthermore, orders under Section 163 BNSS are subject to judicial review by the High Courts under their revisional jurisdiction (e.g., Section 401 BNSS) or writ jurisdiction (Article 226/227 of the Constitution). The Supreme Court, in cases like Babulal Parate v. State of Maharashtra (1961) and Madhu Limaye v. Sub-Divisional Magistrate (1971), has consistently emphasised that these powers must be exercised judiciously, proportionately, and only when there is an imminent threat to public order, and not as a routine measure.

How has preventive detention evolved over time?

Preventive detention in India has evolved from a colonial tool used to suppress political dissent into a legal mechanism intended to protect national security and public order. During British rule, laws such as the Rowlatt Act, 1919, and the Defence of India Act, 1939, allowed the authorities to detain individuals without trial, often targeting freedom fighters and political opponents.