Within the span of 11 days this April, two High Courts ruled on the preventive detention of two sitting elected representatives and arrived at opposite ends of the constitutional spectrum.
On April 16, 2026, a Division Bench of the Punjab and Haryana High Court led by Chief Justice Sheel Nagu dismissed Amritpal Singh's challenge to his third consecutive detention under the National Security Act, 1980, in a 15-page judgment that concluded the order was "immuned from the powers of judicial review."
11 days later, Justice Mohd Yousuf Wani of the High Court of Jammu and Kashmir and Ladakh quashed the detention of Mehraj Malik under the Jammu and Kashmir Public Safety Act, 1978, in an 87-page judgment holding that it disclosed a clear "non-application of mind" and violated the petitioner's fundamental rights.
Two elected representatives, two preventive detention statutes of common ancestry, two sets of allegations that included the incitement of terrorism - and yet two outcomes that could not be more different. Malik walked out of Kathua jail the morning after the judgment was pronounced; Singh remains lodged in Dibrugarh Central Jail, more than 2,800 kilometres from the constituency that elected him to parliament.
The asymmetry speaks to the present condition of preventive detention jurisprudence in India - a jurisprudence still tethered, more than 7 decades after Independence, to colonial instruments designed to suppress rather than protect.
The power to detain without trial has a long and unhappy genealogy in the sub-continent that begins not with the Constitution, but with the legal architecture of British India. The Defence of India Act, 1915 conferred sweeping executive powers to detain anyone "suspected" of threatening public safety and its wartime regime was made permanent by the Anarchical and Revolutionary Crimes Act, 1919 (the Rowlatt Act), denounced by Mahatma Gandhi as the "Black Act," whose passage triggered the protests that culminated in the Jallianwala Bagh massacre.
When the Constituent Assembly debated whether such powers had any place in independent India, the practical anxieties of a young State faced with Partition, Kashmir and apprehensions of insurgency ultimately prevailed. Article 22(3)(b) was adopted, creating an express constitutional exception for preventive detention and making India one of the very few democracies to enshrine the executive power to detain its own citizens without judicial conviction. The Preventive Detention Act, 1950, the Jammu and Kashmir Public Safety Act, 1978 - used from inception against the political opponents of the very Chief Minister who had piloted it into law (and later by the Central government against the same ex-Chief Minister, his son and the then sitting Chief Minister in the year 2019) - and the National Security Act, 1980 each trace their lineage back to the 1915 statute.
The architecture in every case is identical: executive satisfaction, administrative detention, no magistrate, no bail, no trial.
Amritpal Singh, the head of the organisation Waris Punjab De, was first detained on March 18, 2023, with a second detention following on March 13, 2024 and the third order (under challenge in the present case) passed on April 17, 2025. Despite his confinement, he contested and won the 2024 Lok Sabha elections from Khadur Sahib and was granted parole only once thereafter, to take the oath of office on July 5, 2024. Notably, Waris Punjab De has never been declared a banned or terrorist organisation under the Unlawful Activities (Prevention) Act (UAPA) 1967, despite reports in March 2023 that the Ministry of Home Affairs was "considering" such a notification.
The grounds sustaining the third detention were undeniably grave - advocacy of Khalistan separatism, the killing of one Gurpreet Singh Harinau, a "hit-list" of fifteen named persons and alleged plans to use drug money to smuggle weapons "for the ultimate object of creating a Khalistan State." Representing him, Senior Advocate RS Cheema candidly conceded that the order was "not being challenged on any procedural lapse, but on merits of the allegations," placing the entire weight of the case on the executive's substantive judgment.
Mehraj Malik's case unfolded against a more local backdrop. A first-term MLA from Doda East and the Aam Aadmi Party's J&K unit president was also detained under PSA in September 2025. The dossier cited 18 FIRs and 16 daily diary reports spanning 2014 to 2025. Its allegations strayed into terrorism-adjacent territory: the State charged Malik with "glorifying anti-national activities of prescribed terrorists like Burhan Wani and Masood Azhar," appealing to the public to act as "Lashkars" (armed militia) and supporting workers of terrorist organisations. These mirrored, in tone if not in particularity, the charges against Amritpal Singh. And yet what the two High Courts did with them differed dramatically.
The Punjab and Haryana High Court's approach was characterised, throughout, by judicial deference. The Bench acknowledged 7 grounds raised by the petitioner - including challenges to the State's blanket delegation order under Section 3(3) of the NSA and the absence of a "live and proximate link" - and rejected each in turn. But on the central question of merits, its reasoning occupies barely two paragraphs: the grounds were "clearly indicative of reasonable apprehension... based on subjective satisfaction founded upon objective material." The Court did not examine the individual FIRs; it did not consider whether 3 successive years of detention had transformed a preventive measure into something functionally indistinguishable from punishment; and it did not address the democratic dimension of detaining a sitting Member of Parliament. Its concluding formulation - that the order is "immuned from the powers of judicial review" - reads less as deference than as abdication.
Justice Wani's judgment is of an altogether different temperament. 87 pages long, it addresses each issue in considered detail, beginning with whether the alleged activities constituted "public order" within Section 8(3)(b) of the PSA. The Court examined every one of the 18 FIRs and found that those still pending pertained largely to violations of the Model Code of Conduct or to acts of protest by the petitioner against alleged omissions of public officials. The FIR registered under Sections 153-A and 295-A of the Indian Penal Code (IPC) was held insufficient to constitute "public disorder" and the daily diary reports were dismissed as "unconfirmed and un-investigated reports." The Court held that "any annoyance or ill will expressed by public servants against the petitioner/detenu, in his capacity as the concerned MLA, cannot amount to public disorder," and that "the invocation of the provisions of the PSA to detain the petitioner rather than to pursue the prosecution against him appears to be an unjustified exercise tantamounting to violation of the fundamental rights of the petitioner."
This is the principle Article 22(3)(b) requires courts to enforce - that preventive detention is an exception, not a substitute for ordinary criminal process - and one the Punjab and Haryana High Court never paused to consider.
The handling of terrorism allegations is the most telling point of comparison. In Malik's case, the State sought to play, in open court, video recordings of the alleged glorification - videos that, the State conceded, had never been supplied to Malik himself. Justice Wani held this fatal: the non-supply denied the detenu his right under Article 22(5) to make an effective representation and the grounds appeared to be "a mechanical reproduction of the police dossier."
The Punjab and Haryana High Court, confronted with materially similar allegations against Singh, undertook no comparable inquiry. Both petitioners relied on Ameena Begum v. State of Telangana, (2023). The Punjab and Haryana High Court distinguished it as factually different in a single paragraph, while Justice Wani quoted the Supreme Court's warning against "personal predilection" in invoking such laws "to avoid or oust judicial scrutiny." The same precedent, on similar facts, produced opposite outcomes - not because the law differed but because the willingness to apply it differed. That the State of Punjab anchored its defence on ADM Jabalpur v. Shivakant Shukla (1976) - which was effectively overruled in KS Puttaswamy v. Union of India (2017) - speaks for itself.
Perhaps the most affecting dimension of Singh's case is not the detention itself, but his repeated efforts to attend parliament. Having won the 2024 Lok Sabha elections from a jail cell, he has sought parole for every session that followed and each petition has met the same procedural fate: Punjab denies parole, the detenu approaches the Court, the Court takes time, the session ends and the petition is declared "virtually infructuous." His Winter Session 2025 plea fell to that very logic, with the Court observing that transporting the detenu from Dibrugarh to Delhi would in any case require "at least 10 hours by helicopter". His Budget Session pleas in February 2025 and February 2026 met the same end. The defeat is not occasional but structural: the process has become the punishment, not only for the detenu but for the more than 19 lakh voters of Khadur Sahib whose parliamentary representation has been silenced for 3 years.
There is a final irony worth noting. The Aam Aadmi Party governs Punjab and has renewed Amritpal Singh's NSA detention three times, lodged him 2,800 kilometres from his constituency and resisted every parole application. Yet, when the J&K High Court quashed Malik's PSA detention, the same party celebrated. If a 7-month detention is unjust, on what principled basis can a 3-year detention be defended as anything else?
Justice VR Krishna Iyer once described preventive detention as the "jurisdiction of suspicion" and in a constitutional democracy founded on the presumption of innocence, that jurisdiction ought to be the narrowest of jurisdictions. The two judgments examined here suggest we are some distance from that standard. The J&K High Court's 87 pages demonstrate what rigorous habeas corpus review looks like; the Punjab and Haryana High Court's 15 demonstrate what happens when deference shades into abdication.
The deeper question is whether laws of this kind have any place in a 21st century democracy at all. The NSA and the PSA are colonial instruments wearing modern clothes, retained on the strength of a constitutional exception that the framers themselves accepted with reluctance. That elected representatives can today be confined for years without trial, on the administrative satisfaction of a district magistrate, is not a settled feature of our constitutional order; it is an inheritance to be questioned.
Arjun Sheoran is a criminal lawyer based in Chandigarh and the Managing Partner of Vaakya Legal.