On 24^th September 2025, four people were killed in police firing after protests for statehood in Ladakh turned violent. On the heels of this unfortunate incident, climate activist Sonam Wangchuk – who is believed to be the leader of the protests – was put under preventive detention on 26^th September 2025 under the National Security Act, 1980. Before the  Supreme Court, the Solicitor General of India defended this detention, arguing that Mr. Wangchuk was “instigating” younger generations to adopt methods of “violent protest” like ones that took place in neighbouring countries of Nepal, Bangladesh and Sri Lanka. This post argues that this is a misuse of the preventive detention law, where the result of the detention is punitive instead of preventative.

Background

Article 22 of the Constitution of India recognises laws providing for preventive detention, i.e. detention without a trial.  These powers are an extraordinary measure, which operate outside the ‘normal’ criminal justice system. A detenu is not afforded legal representation, only a personal hearing [Article 22(5)]; and the detention order is only subjected to review by an executive body (the Advisory  Board) [Article 22(4)].

Constitutional courts recognise that these powers are a draconian measure, confer arbitrary powers to the state, should not be used to circumvent ordinary criminal procedure, and are part of the country’s colonial legacy. Nevertheless, time-and-again, their constitutionality has been upheld (see here, here and here). Originally enacted with temporal limits on their operation, they are fully entrenched in the Indian legal system with four central legislations and several state-laws authorising these powers.

The Problem of Misuse

The Crime in India 2023 report by the National Crime Records Bureau shows that 33,070 persons were detained in 2023 under various preventive detention laws; out of which, 16,758 were released by the Advisory Board itself. Therefore, about half of all the people detained were released after an internal, administrative review, without any judicial oversight.

Though there is not enough data on the number of detention orders quashed by pursuing the remedy of habeas corpus, several studies suggest that  most of the orders challenged before constitutional courts are eventually quashed. For example, an empirical study of habeas corpus cases before the Madras High Court from 2000 to 2022 showed that in 87.9% of the cases, the detention order was quashed (also see Madras High Court’s own analysis at para 15); similarly, a study of habeas corpus cases arising from National Security Act, 1980 at the Allahabad High Court showed that between 2010 and 2019, 73 out of 101 cases (72.2%) the detention order was quashed.

Penal Consequence of Preventive Action

Mr Wangchuk’s detention is not an aberration but another instance in a series of using the preventive laws against political dissent by the State. These powers have been routinely used against journalists, political opposition, and human rights activists (see here and here). In Mr Wangchuk’s case, the detention order is presumably for a speech given about two weeks prior to the incident of violence and in effect, punishes him for the violence that ensued.

The penal character to the detention also comes with Mr Wangchuk’s treatment as a prisoner instead of a detainee. He has been imprisoned in a solitary cell at Jodhpur Central Jail, far away from his residence in Ladakh and reportedly suffers from medical distress. While the habeas corpus petition against his detention remains pending, his detention in prison enters its sixth month. It is troubling that the extraordinary, preventive powers are used by the State to effectively punish the detenu, bypassing normal criminal justice procedures, which would afford him safeguards that are provided to every accused in a criminal trial.