Preventive detention under NSA in Manipur: Some unlearnt lessons

The preventive detention laws have been indiscriminately used and misused in the strive-torn state not only to detain persons who have been accused of being members of or associated with various outlawed organisations and of having committed serious crimes but also to detain drug traffickers.

ByN Brajakanta Singh

Updated 20 Jun 2021, 6:17 pm

Representational Image (PHOTO: Pixabay)
Representational Image (PHOTO: Pixabay)


INDIA’s North-Eastern state of Manipur has been experiencing militancy for over six decades. The continuing internal armed conflict between militants and government's forces has resulted in unending bloodshed in the state. Personal liberty, the most cherished freedom guaranteed under Article 21 of the Constitution of India, 1950, has been a casualty also. The preventive detention laws have been indiscriminately used and misused in the strive-torn state not only to detain persons who have been accused of being members of or associated with various outlawed organisations and of having committed serious crimes but also to detain drug traffickers.

Very recently, executive authorizes had invoked provisions of a preventive detention law meant to safeguard national security and maintenance of public order to detain a local journalist and a political activist for making objectionable remarks in local language against state BJP president S Tikendra Singh, who had died of Covid-19-related complication in their Facebook posts. Therefore, it deems proper to make a study of the application of preventive detention laws in the state of Manipur.

The paper discusses the basic legal provisions and precedents relating to preventive detention. It analysed cases disposed of by the Manipur High Court during 2018-2020. It finally examined a recent case decided by the High Court wherein the Court directed the Chief Secretary of the State to organise training programmes of the Deputy Commissioners and Superintendents of Police on preventive detention laws.

Preventive detention under the National Security Act

The National Security Act, 1980 (hereinafter the NSA) was enacted with the objectives, inter alia, to control anti-social, anti-national, and extremist activities. The NSA under section 3 empowers the central government, the state governments, District magistrates, and police commissioners to issue detention orders to prevent a person from acting in any manner prejudicial to the security of the state or the maintenance of public order.

The NSA under Section 8 mandates that a person detained has to be informed of the grounds of detention within five days of detention which can be extended to 10 days in exceptional circumstances.

Section 3(4) of the NSA provides that when a detention order is made by a District Magistrate or a Commissioner of Police under Section 3(3) of the NSA, the Magistrate/Commissioner shall ‘forthwith’ report the fact of the detention order to the State Government, along with the grounds on which the order was made, and any other relevant facts. It also states that no detention order shall remain in force for more than 12 days after making the order unless it has been approved by the state government.

The expression “forthwith” under Section 3(4) is interpreted to mean within a reasonable time and without any undue delay. This would not mean that the detaining authority has a period of 12 days to submit the report (with grounds) to the state government from the date of detention. The detaining authority must furnish the report at the earliest possible.

The maximum permissible period of detention under the NSA is 12 months, but the order for preventive detention can be modified or revoked at any time earlier.  Moreover, Section 16 of the NSA, 1980 protects the Central Government or a State Government or any person from any suit or legal proceedings for anything done in good faith or intended to be done in pursuance of this law.

Role of Advisory Board

A law providing for preventive detention cannot authorise the detention of a person for a period longer than three months unless an Advisory Board, consisting of persons who are, or have been, or are qualified to be appointed as High Court Judges, reports that there is sufficient cause for such detention.

The NSA provides for the constitution of Advisory Boards. The Authority issuing the detention order must refer all cases to an Advisory Board within three weeks from the date of the detention order. The government must also forward any representation made by the detenu and the report of the detaining authority to the Board. The Advisory Board is required to submit a report to the detaining Authority within seven weeks of the date of detention. The prime consideration before the Advisory Board is the detention of the person and not the period of detention.

If the Board fails to furnish its opinion within three months of detention, the order of detention becomes illegal. The detenu is entitled to be released even though the opinion of the Board has been obtained within three months of the second order of detention revoking the first and authorising the continuation of detention on the same ground on which the original detention was made. This report must include the opinion of the Advisory Board that there is or no sufficient cause to detain the individual. The detaining authority must release the detenu immediately if the Advisory Board opines that there is no sufficient cause to maintain the order.  The detenu may not be represented by a legal practitioner as the proceedings of the Board are private and reports are confidential.  

Rights of a Detenu


The Constitution of India has guaranteed certain fundamental rights to a detenu.  He has the right to be communicated the grounds of detention in the language known to him as soon as possible. The detenu has a right to be afforded the earliest opportunity of making a representation against the detention order before the appropriate government. The Supreme Court has ruled that the detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India.  Moreover, the detenu must also be given the documents on which the detention order is based, and delay in supplying these documents will result in the court setting aside the detention order.  Further, any inordinate delay in considering the representation of the detenu renders the detention illegal and invalid.

Writ of Habeas Corpus

Articles 32 and 226 of the Constitution of India empower the Supreme Court and High Courts respectively to issue certain writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari for the enforcement of any right conferred under Part III of the Constitution dealing with the fundamental rights. Constitutionally, the most effective remedy for any illegal detention, including preventive detention, is the writ of habeas corpus which is often called “the first security of civil liberty”.

It is a prerogative writ by which, the causes and validity of detention of a person being investigated by summary procedure and if the authority having his custody does not satisfy the court that the deprivation of his liberty is according to the procedure established by law, the person is entitled to his liberty. By this writ, the Court directs the person or authority who has detained another person to bring the body of the detenu before the Court to enable the Court to decide the validity, jurisdiction, or justification for such detention.

Although the literal meaning of the Latin phrase habeas corpus is ‘to produce the body’, many a time production of the body is not insisted upon but the court decides whether the person is under illegal detention or not. Habeas corpus is often used as a remedy in cases of preventive detention because in such cases the validity of the order detaining the detenu is not subject to challenge in any other court and it is only writ jurisdiction that is available to the aggrieved party.

In the exercise of judicial review the Constitutional courts can examine whether (a) the grounds of detention were promptly communicated to the detenu, (b) the detenu was timely permitted to make a representation to the Advisory Board or the appropriate government against the detention; (c) the facts based on which the detenu is detained have a proximate nexus with the aim sought to be achieved by detaining him, and (d) any of the grounds stated in the detention order are vague or irrelevant. Further, the writ of habeas corpus can be issued not only for release from detention by the State but also for release from private detention.

Judicial review of subjective satisfaction

According to the constitutional courts, the ‘subjective satisfaction’ of the detaining authority is the statutory prerequisite for the exercise of the power of preventive detention.  When the detaining authority has a compelling reason to pass a detention order, it is not for the Court to substitute its satisfaction, but it is only to determine whether the detaining authority had arrived at the satisfaction that the detenu has to be preventively detained in the public interest.

The Supreme Court held that the veil of subjective satisfaction of the detaining authority cannot be lifted by the courts to appreciate its objective sufficiency; rather they do review whether the satisfaction is honest and real, and not fanciful and imaginary. The executive is, therefore, required to "apply his mind" to the decision to issue a detention order. A preventive detention order may indeed be validly issued even when the person is already in custody and about to be released on bail.

The Law of preventive detention should not be used merely to clip the wings of an accused who is involved in criminal prosecution.  There must be substantial and cogent facts and circumstances before the detaining authority for passing the detention order, that the detenu is likely to be released on bail.

The concern of the Court should be to ascertain as to whether the decision-making process for reaching the subjective satisfaction on objective facts, is in any way influenced, coloured, or affected by any caprice, malice, or irrelevant considerations or non-application of mind.

Subjective satisfaction being a condition precedent for the exercise of the power of preventive detention conferred on the executive, the Court can always examine whether the requisite satisfaction is arrived at by the authority.  If it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be held bad.  It is also obligatory on the part of the detaining authority to arrive at the subjective satisfaction, on the materials placed before him, recourse to normal criminal law did not have the desired effect of preventing him from indulging in such activities and there is a compelling necessity.

Landmark precedents

The role of the court is to examine whether the detaining authority has applied its mind to the facts relevant and vital in reaching subjective satisfaction before passing the detention order. The Court has to examine whether the grounds disclosed are relevant to the objects of the preventive detention law. The mere possibility of his release on bail and a bald statement that the detenu would repeat his criminal activities was alone, not sufficient to sustain the order of preventive detention.  

In the case of Union of India v. Paul Manickam,(2003)8 SCC 342, the Supreme Court declared that the detaining authority must show its awareness of the fact of subsisting custody of the detenu and take that factor into account while making the order. It also held that the detention order can be validly made if the detaining authority is reasonably satisfied with cogent materials that there is the likelihood of his release and given his antecedent activities which are proximate in point of time, he must be detained to prevent him from indulging in such prejudicial activities. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated, it concluded.  

In Huidrom Konungjao v. State of Manipur,(2012)7 SCC 181,  the Supreme Court categorically stated that if such detention order is challenged, the detaining authority ought to satisfy the Court the following facts: (a) the detaining authority was fully aware of the fact that detenu was actually in custody and (b) there were reliable materials before the said authority based on which it could have reasons to believe that there is a reliable possibility of release on bail and further, on being released, he would probably indulge in activities which are prejudicial to the public order.

Further reaffirming earlier precedents, the Apex Court, in Champion R. Sangma v. State of Meghalaya,(2015) 16 SCC 253, held that in case of a person in custody a detention order can validly be passed (a) if the authority passing the order is aware of the fact that he is actually in custody; (b) if he has a reasonable belief based on reliable material placed before him (i) that there is a real possibility of his being released on bail, and (ii) that on being so released he would in all probability indulge in prejudicial activity and (c) if it is felt essential to detain him to prevent him from so doing.


A study of High Court cases

This study analyses 34 disposed of cases relating to habeas corpus writ petitions for a period of three years from 2018 to 2020. The High Court had disposed of 18 cases in 2018, 7 in 2019, and 9 in 2020 respectively. The cases were identified by their case type [WP(Crl)] and judgments were accessed through the High Court of Manipur’s official website https://hcmimphal.nic.in. The data collected is analysed below against the following indicators: (a) the outcomes of the cases, (b) the communities of the detenus, (c) the nature of offences, (d) the home districts of the detenus, and (e) time taken in disposal of a petition.

(a) Outcomes of the writ petitions

Of the 34 preventive detention cases analysed, the High Court issued the writ of habeas corpus in 24 cases on the ground of failure of subjective satisfaction on the part of detaining authorities. Five cases were not granted relief, three cases were withdrawn and two cases were disposed of as infructuous. Thus it can be inferred that the High Court granted relief in more than 70 per cent of the preventive detention cases during the study period.

(b) Communities of the detenus

From the analysis of the cases in hand, it was found that the maximum number of detenus i.e., 16 persons belong to the majority Meitei community, while 9 and 7 persons were from the Kuki tribe and Muslim community respectively. During the study period, one foreigner was found to be preventively detained. A non-Manipuri army personal from outside the state had filed a habeas corpus petition against his detention by the Army authority, but the same was dismissed for lack of jurisdiction.  

(c) The nature of offences

The preventive orders were issued for alleged commission of offences under the Indian Penal Code, the Unlawful Activities Prevention Act, the Narcotics and Psychotropic Substances Act, etc. It was found that the detaining authorities have issued 24 orders against those detenus who have a connection with outlawed organisations and alleged to have committed heinous offences, six orders were issued against accused persons alleged to have involved in illicit drug trafficking cases and four orders against accused persons for making hate comments in social media.

(d) Home districts of detenus

From the present study, it was also found that most of the detenus belong to Imphal West district with 12 detenus, followed by Thoubal and Kangpokpi districts with six detenus each. The Churachandpur district comes next with three detenus. Imphal East and Kakching districts have two detenus each. A Myanmar citizen was also detained under the NSA during 2020. One army personal from outside the state had filed a habeas corpus petition against his detention by the Army authority during 2018, but the same was rejected for the lack of jurisdiction.

(e) Disposal time of the petitions

Regarding the time spent from the filing of the writ petition to the final disposal of a case, it was found that the longest time taken by the High Court were 315, 324, and 272 days during the years 2018, 2019, and 2020 respectively. The shortest time spent for disposal of a case during the study period of 2018, 2019, and 2020 were 17, 86, and 25 days respectively. It was also found that there were seven, five, and three cases in which the High Court took more than six months to dispose of the writ petitions during the years 2018, 2019, and 2020 respectively.

A pragmatic trend

The tale of the case, W.P. (Crl) No. 3 of 2020, Judgment delivered on 07-12-2020, shows how detaining authorities have ignored the binding precedents of the Supreme Court and also highlights the new judicial trend adopted by the High Court to protect the personal liberty of the detenu. In the instant case, the detenu was an international drug smuggler from the neighbouring country Myanmar having a network of illicit trafficking of World is Yours (WY) Tablets from across Myanmar into India. The modus operandi of the detenu was the smuggling of WY Tablets rolled into carpets and then, transported to Silchar, Assam, and Dimapur, Nagaland via Moreh and Imphal. The detenu’s name has figured as the Kingpin, as disclosed by his accomplices when a seizure of drug consignment worth Rs.400 Crore rolled into carpets was made by the Police. The detenu was arrested from the airport and a network of drug smuggling was busted at some places in Manipur and Tripura. It was further revealed that the accused had nexus in the smuggling of WY Tablets from Myanmar to Manipur and then, to Bangladesh. The detenu was granted bail by the then Special Judge, ND & PS, Thoubal District, Manipur, (lately his bail order was cancelled by the successor Special Judge). However, the police arrested him again, and while in police custody, the District Magistrate, Thoubal issued the impugned detention order.

The driving consideration for his detention under the NSA was that the detenu being a foreign national there was a high chance that he may abscond and travel beyond the jurisdictional reach of the police and he may continue such activities. It was also alleged that the drug money was often used to fund insurgent groups and violent activities across the country, especially in Manipur and other parts of North East India. Because of the scale and scope of drug smuggling, it was considered a threat to public order. Given his prejudicial activities in the immediate past, the detention order mentioned, it was likely that he may continue to act in a manner prejudicial to the maintenance of public order. The detention order states that normal criminal laws were not sufficient to prevent him from his commission of prejudicial activities.



First published:


militantsNational Security Actarmed conflictpreventive detention

N Brajakanta Singh

N Brajakanta Singh

Guest faculty, Department of Law, Manipur University


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