The recently passed West Bengal Public Safety and Control of Anti-Social Activities Bill, 2026 (commonly called as “Goondas Act”) has put the issue of coercive state power and attack on civil liberties in the national news again but by no means this is an isolated case in any one particular part of the country. There is a growing concern that these acts are being used to book people for petty crimes and suppressing democratic dissent. This is highlighted by incidents like repeated preventive detention of whistleblower 'Savukku' Shankar in Tamil Nadu and use of Goondas Act against journalists and opposition in Uttar Pradesh.

The power under which these acts have been enacted are flowing from article 22 of the constitution, similar to the union government's power in the National Security Act,1980. These laws grant excessive powers to the police state for temporary detention and extermination bypassing the constitutional safeguards. This has been justified on the grounds of public safety and maintaining public order. The executive has always promised to be judicial and cautiously uses these extensive powers. Though the detention under the NSA often gets media attention, the localised use of similar powers often gets overlooked. This piece examines the use and abuse of preventive detention laws by states and inadequacy of judicial oversight.

A History of Structural Abuse

The authorities have found it easier to invoke these acts instead of using ordinary criminal laws. This tendency has been criticized for two pertinent reasons. Firstly, it deprives individuals of liberty as it bypasses all the procedural safeguards under ordinary laws. Police do not have to follow the arrest procedure provided under the Bharatiya Nagarik Suraksha Sanhita (BNSS). Section 58 of BNSS makes it mandatory for the police to produce a person before the magistrate within 24 hours of the arrest having been made without a warrant. There is a continued judicial oversight over the arrested individuals, the Supreme Court has given strict guidelines in various cases such as D.K Basu v State of West Bengal, to protect individuals from police coercion. All of these safeguards are out of the picture under the preventive detention acts.

Secondly, since these acts strip off jurisdiction from the magisterial courts, the only options litigants have is to approach the Constitutional Courts through a writ petition. This is easier said than done. The Indian Courts are already overburdened, and the Habeas Corpus roster is flooded with such cases. The study of more than a thousand Habeas Corpus cases in the Supreme Court from 2000 to 2023 found that the average day taken by the court to dispose of a Writ Petition is 225.42 days and 204.19 days for Appeals/SLPs.

A study of preventive detention by Thakur Foundation of cases in Madras High Courts from 2000 to 2019 reveals a striking disposal rate of 87.9%. Hence, the disposal rate and continuous critique from the bench highlight the frivolous use of these provisions to wrongfully deprive individuals of rights and liberty.

Failure of Judicial Oversight

The Constitutional courts have come down heavily on detaining authorities in some of these cases, but it has not deterred the police from frivolously branding people as goondas. The failure of the judiciary in regulating the abuse is due to the court's refusal to do substantive review and disposing of cases on procedural grounds. The court has also limited the scope of judicial review and has left it to the subjective satisfaction of the detaining authorities. A study of Madras High Court disposals in preventive detention matters reveal that less than 2% of the cases were decided on merit. It is also worth examining the effectiveness of the limited safeguards laid down by the courts.

Previously, the Supreme Court has validated the necessity for such a law but tried to balance it with the liberty of the accused. In the Case of Haradhan Saha v State of West Bengal 1975 SCR (1) 778, the court has observed that “preventive detention is adopted to prevent the great evil elements imperilling the security, the safety of a State and the welfare of the Nation.” This necessary evil though, does not mean that preventive detention is punitive, the court has reiterated this in Khudiram Das v State of West Bengal 1975 AIR 550. They further gave guidelines to detaining authority in Khudiram, “the matters which have to be considered by the detaining authority are whether the person concerned, having regard to his past conduct judged in the light of the surrounding circumstances and other relevant material, would be likely to act in a prejudicial manner as contemplated”. The Supreme Court has also tried to narrow the scope of preventive detention by constructing a precise and simple definition of public order. The court in Ram Manohar Lohia v State of Bihar 1966 AIR 740 had laid down that “public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder”. The court emphasized that every law and order issue does not automatically become an issue of public disorder.

The primary issue here is that these guidelines only come into consideration when there is an analysis on the merits, which limits their application. Secondly, they have been ignored by authorities without any consequences. These guidelines are merely directive and have no bearing on the authorities for not following them. Recently, in Ameena Begum v State of Telangana, the Supreme Court recorded the consistent abuse by the authorities and reiterates existing positions refusing to move past these precedents despite their clear failure. The authorities are not required to lay down specific violations, and even the reasoning of advisory boards is not available in the public domain.

Even when the relief comes, it is not enough to prevent future misuse. Since the courts have restricted themselves to ex-post facto oversight on a case by case basis rather than putting an ex-ante restriction on state's powers. This approach, coupled with the delay in disposing of the petition, gives the authorities little to no incentive for structural reforms or caution. Courts have come down hard on detaining authorities many times, but there has not been proportionate consequences for violating the court's guidelines. Even when the court found detention is mala fide or wholly erroneous, there has not been any cases of departmental enquiry order by court, and very occasionally constitutional torts has been used to give compensation to the victims.

Lastly, there is the issue of the Advisory Board, Article 22 envisages an advisory board to supervise the actions of detaining authorities and empowers the parliament to make laws to such effect. The authorities are required to produce the accused within three months in front of such a board. It is a constitutional safeguard built into the Article itself, but it has been turned into a rubber stamp. The apex court in A.K Roy v Union of India 1982 AIR 710, held that,“necessary for the procedure prescribed by law for proceedings before the Advisory Board must be fair, just and reasonable.” In practice, though, the members of the board are appointed by the executive, and they are often not required to provide reasoning for their decision. There is no uniform structure of advisory that all states follow. Hence, this safeguard has been rendered toothless.

The Constitution recognises the need for the executive to take swift action in certain situations to prevent harm to the public order and hence, it provides a narrow scope of preventive detention where certain rights of accused are suspended. This is a coercive power that needs to be exercised cautiously. Despite the limited power of the judiciary under Article 22, there is a need to hold the executive accountable in cases where Goonda's acts are being used unfairly. Judiciary has been very critical abuse in certain cases but some alternative ways like strict action against defaulting authorities, constitutional torts, fast tracking habeas corpus petition and strengthening advisory boards, which can help protect the individuals and uphold the rights granted under Part III of the constitution of India.

Author is a second year Law student at National Law School of India University. Views are personal.