By Professor Satya Narayan Misra in Bhubaneswar, October 6, 2025: On 2nd October Jayanti Gitanjali J Angmo, wife of engineer-turned teacher–turned climate activist Sonam Wangchu filed a habeas corpus petition in the Supreme Court challenging his preventive detention under the National Security Act (1980) , which has replaced the ill famous MISA of 1971.

She has requested the court to direct the authorities to order his immediate release. Section 3 of the NSA empowers the government to issue an order of prevention if the activities of the individual are found to be “harming India’s defence, security, or relations with foreign countries or disrupt public order and essential supplies and services.”

The Act requires that a detention order be issued only after the competent authority finds ‘vital and relevant material ‘to show that the person’s actions are prejudicial to national interests or public order. The education reformer, who inspired the Hindi movie “Three Idiots” has been labelled by the police as the ringleader of September 24th violence in Leh city. Winner of the Ramon Magsaysay award in 2018, he was instrumental in the launch of Operation New Hope, a triangular collaboration of the government, village communities and civil society to bring reform in the government schools. He also highlighted how the proposed solar projects by big corporations could sound the death knell for the region.

Genesis of Preventive Detention

It dates back to East India Company Act 1784 which empowered the British to detain anyone who acted prejudicial to British interest. During WWI &II , it was extensively used. During the debates in the Constituent Assembly, while both Nehru and Patel were firmly in favour of preventive detention provision as safeguard to threats to national security. many members were apprehensive of its misuse by the State .Finally preventive detention provision was incorporated in Article 22 which tried to strike a balance between the need to maintain public order and national security, while preserving the right to personal liberty.

Article 22(3) provides for preventive detention to any person ‘who is an enemy alien’ or any one who is arrested under any law providing preventive detention’. The period of preventive detention is pegged at 3 months unless an advisory board recommends an extension, and communicate grounds of the order ‘as soon as may be’ and afford an opportunity to make a representation. The Parliament is authorised to prescribe circumstances for detention beyond 3 months and also the maximum period of detention. While the 44th amendment reduced the detention period to 2 months without reference to the Advisory board it has not yet been brought in to force

Landmark Supreme Court Decisions

The first challenge to the NSA 1980 came in AK Roy vs UOI (1982) where the court upheld constitutionality of the act while emphasizing that preventive detention is an exception to individual liberty and requires strict adherence to procedural safeguards provided in Article 22. However, on 27th June 2025, Justices Bhuyan and Chandran set aside the preventive detention of a young law student from Madhya Pradesh’s Betul district.

The accused was a student activist who had raised his voice against caste based discrimination at his college. The bench distinguished between ‘law and order’ and public order, observing that a person could be preventively detained only in the latter instance. The SP of Betul had merely flagged a possible ‘law and order issue. The bench also criticised the state authorities for invoking preventive detention despite the accused being in judicial custody.” Preventive detention is not calling it a dog and hanging it . Yu can’t do that “, the court said.

The judges added: Public order is something bigger. This is just law and order”. In AnnuAniket Vs UOI (2025) , the SC ordered releaseof a law student deeming it ’wholly untenable ‘ due to procedural lapses. Earlier in Rekha vs State of Tamil Nadu , the court reaffirmed that detention orders must have a live and proximate link with alleged prejudicial act.

The Landmark Habeas Corpus Case

This brings to memory the landmark habeas corpus petition of wife of Shivkant Shukla, a political activist, who was detained during emergency without trial by invoking MISA Act in 1976. While a majority of four judges agreed with the government action, the celebrated dissenter was Justice HR Khanna who had famously said ‘Detention without trial is an anathema to all those who care for life, liberty and rule of law. This is rooted in the consideration that life and liberty are priceless possessions which can not be made plaything of individual whim and caprice.’

Justice Khanna’s dissent was upheld 41 years later by a unanimous decision by the Supreme Court in Puttaswamy Case. To quote Justice Nariman ‘The right to life and liberty which inheres in the body of a living person is protected not merely by Article 21 but by the civil and criminal law of the land’. Justice Khanna quoted Justice Hughes who wrote: Dissent in a court of last resort is aa appeal to the brooding spirit of law, when a latter decision my possibly correct the error in to which the dissenting judge believes the court have been betrayed.’ In the Puttaswamy case the judges invoked that brooding spirit of law that upholds life , liberty and rule of law in a tyrannical state.

The terrible Twins

The laws on sedition in its present form in S152 off BNS and Preventive detention are relics of the colonial past when a despotic state tries to snuff out any expression that smacks of anti-government. In the Kedar Singh Case (1962) , while the Supreme court upheld the validity of sedition law, it also observed that a citizen has the right to say and write about the government, by way of criticism , so long as it does not incite people to violence .

The continuance of the sedition law is under challenge by a constitutional bench of the Supreme Court. The first case in which the Supreme Court upheld the preventive detention of AK Gopalan, a communist leader, was in 1950 , taking a narrow view that Articles 14, 19, 21 and 22 were not interconnected. This was overruled by the court in Maneka Gandhi case in 1978, where the court emphasisized that the law must satisfy principles of equality, freedom and fairness and brought in the due process concept ensuring that procedures are just, fair and reasonable.

The Way Forward

Quite clearly the present detention case of Sonam Wangchu is politically motivated and an attempt to muzzle the voice of a crusader. As soon as Sonam raised the voice for Ladakhis, asking for promises of statehood, and sixth schedule protection, he was recast as a state enemy: an antinational working for vested interests and accumulating foreign funds’.

Whenever anyone questions government policies on ecological balance, he becomes a foe. Preventive detention is being misused for muzzling dissent. The Supreme Court must step in and call the bluff on this brazen misuse of its powers under the NSA, replace subjective satisfaction of the state with the objective lens of proportionality test and bring a balance between liberty and shenanigan of security.

• Prof Misra teaches constitutional law