Extraordinary Powers Under Special Powers Act Preventive Detention

06 Oct 2025 --
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🔹 INTRODUCTION

India provides for extraordinary powers under certain laws like the Armed Forces (Special Powers) Act, 1958 (AFSPA) and preventive detention laws like National Security Act, 1980 or earlier Preventive Detention Acts.

These powers are extraordinary because they allow the State to act without following normal procedural safeguards in the interest of public order, national security, or armed conflict situations.

🔸 1. SPECIAL POWERS ACT (AFSPA, 1958)

Objective

The AFSPA gives special powers to the armed forces in “disturbed areas” to maintain law and order, including the authority to:

Use force, including lethal force in certain situations (Section 4).

Search premises without a warrant (Section 4(b)).

Arrest without warrant anyone suspected of committing cognizable offenses (Section 4(c)).

Immunity for actions taken under the Act (Section 6).

It is an extraordinary law because it curtails normal civil liberties in disturbed areas.

Case 1: Naga People’s Movement of Human Rights v. Union of India, AIR 1998 SC 431

Facts:
Petition challenged AFSPA provisions, claiming excessive powers allowed armed forces to commit human rights violations.

Held:
The Supreme Court upheld that AFSPA is constitutionally valid, but emphasized that powers under the Act must be used judiciously, and the government must notify “disturbed areas” properly.

Principle:
Even extraordinary powers under AFSPA are not unchecked; misuse can attract judicial scrutiny.

Case 2: People’s Union for Civil Liberties (PUCL) v. Union of India, AIR 2003 SC 2363

Facts:
This case arose due to alleged human rights violations in Manipur under AFSPA.

Held:
The Court held that action under AFSPA is subject to judicial review, especially in cases of extrajudicial killings and custodial violence. The armed forces cannot act with total immunity; Section 6 protects them only if actions are done in good faith.

Principle:
Extraordinary powers do not confer absolute immunity.

🔸 2. PREVENTIVE DETENTION

Meaning

Preventive detention allows the government to detain a person without trial, if their actions are deemed a threat to national security, public order, or maintenance of essential services.

Unlike punitive detention, preventive detention is preventive, not punitive.

Key Provisions

Article 22(3) & (4) of the Constitution: Allows preventive detention up to 3 months without advisory board approval, and beyond that with board review.

National Security Act, 1980: Preventive detention up to 12 months.

CrPC Sections 56-59: Temporary preventive detention.

Case 3: A.K. Gopalan v. State of Madras, AIR 1950 SC 27

Facts:
Gopalan was detained under Preventive Detention Act, 1950. He challenged the detention, claiming violation of Fundamental Rights under Article 19 and 21.

Held:
The Supreme Court upheld the validity of preventive detention, stating it cannot be equated to punishment. Detention is preventive, and Constitution allows restriction of rights in the interest of security and public order.

Principle:
Preventive detention is exceptional and not a violation of Article 19 or 21 if authorized by law.

Case 4: Maneka Gandhi v. Union of India, AIR 1978 SC 597

Facts:
Maneka Gandhi was detained under the Passport Act, but challenged detention alleging violation of personal liberty under Article 21.

Held:
Supreme Court expanded the scope of Article 21, holding that preventive detention laws must conform to principles of natural justice. The law must be fair, just, and reasonable; detention cannot be arbitrary.

Principle:
Even under preventive detention, procedural safeguards and judicial review are mandatory.

Case 5: ADM Jabalpur v. Shivkant Shukla (1976) 2 SCC 521 — Emergency Case

Facts:
During the Emergency, the question was whether preventive detention could be challenged for violation of personal liberty.

Held:
The Court controversially ruled that Fundamental Rights could be suspended during Emergency, effectively allowing preventive detention without judicial interference.

Principle:
This case showed the extraordinary nature of preventive detention powers during exceptional circumstances, but was later criticized and partially overruled post-Emergency jurisprudence emphasizing judicial review.

🔹 3. KEY PRINCIPLES OF EXTRAORDINARY POWERS

Exceptional nature: Powers are used only in extraordinary situations (disturbed areas, national security).

Limited and conditional: Powers like arrest without warrant, search, or preventive detention cannot be arbitrary.

Judicial oversight: Courts retain supervisory and review powers, especially for rights violations.

Good faith and necessity: Immunity is valid only if actions are taken in good faith for security reasons.

🔹 SUMMARY TABLE

Law / Act	Extraordinary Power	Limitation	Key Case
AFSPA 1958	Use force, arrest/search without warrant	Powers subject to good faith & judicial review	Naga People’s Movement (1998), PUCL (2003)
Preventive Detention Act	Detain without trial	Must follow constitutional safeguards & board review	A.K. Gopalan (1950), Maneka Gandhi (1978)
Emergency Provision	Suspension of personal liberty	Article 359; absolute powers	ADM Jabalpur (1976)

🔸 CONCLUSION

Extraordinary powers under Special Powers Acts and preventive detention laws are tools for maintaining national security and public order, but they must balance state authority with individual rights. Judicial oversight ensures that extraordinary powers are not misused and remain exceptional.