The Supreme Court has a great opportunity to prevent and stop manifold injustices caused to detenus under various preventive detention laws. I have in mind the preventive detention of Sonam Wangchuk. I hope the court grabs the opportunity with both hands and makes it clear to the Executive that preventive detention is distinct from punitive detention.Preventive detention laws are enacted for application in rare cases, if not in the rarest of rare cases. Yes, the Maintenance of Security Act (MISA) was abused during the Emergency years when thousands were detained to prevent them from committing an offence endangering internal security. But our judges stood up to the injustice and 9 of the 11 high courts quashed the preventive detention orders. (The other two high courts perhaps had no such cases before them). MISA was subsequently repealed in 1978.The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) was used and abused in the 1980s and 1990s when gold and other valuable items were smuggled by carriers (called mules) who would use a suitcase with a fake or collapsible bottom for smuggling; some would swallow drugs safely packed in a plastic bag or hide gold biscuits in the rectum. Dozens were caught while trying to smuggle and preventively detained, but their handlers, big fish, always got away. The courts appreciated the damage these smugglers caused to the economy. But all judges gave greater importance to the injustice caused by the denial of constitutional rights and civil liberties of the detenus without a trial and relied on procedural flaws to release them.Not once did the courts delve into the merits of the allegations made against the detenus. The reason was simple. The courts have no power of judicial review over the subjective satisfaction of the detaining authority, which is not justiciable. This is well settled law over decades. In my view, the jurisprudence of a hands-off approach to subjective satisfaction must now be revisited thanks to abuse of the preventive detention law by the Executive.Punitive detention is resorted to when a person allegedly commits an offence and is accused, based on investigation, of having committed that offence. There is, therefore, a clear distinction between the two forms of detention – preventive and punitive. Of late, this distinction is getting blurred and, perhaps, deliberately so.In the recent past, preventive detention orders under the National Security Act (NSA) have been liberally issued, reminiscent of the Emergency period. It appears that the establishment has concluded that it is so much easier and more effective to arrest and detain a person under the NSA than to do so under the penal law, including under the Unlawful Activities (Prevention) Act (UAPA).The NSA is applicable only if the Union government or the state government is (subjectively) satisfied that it is necessary to detain a person “with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India” or “with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community.”Therefore, a person is detained on the prognosis that he is likely to commit an offence if he is not detained and not because he has allegedly committed an offence – reminding one of the Hollywood movie Minority Report kind of situation.In Parvez v. State of UP (2021) the Allahabad high court quashed a preventive detention order under the NSA against the detenu for “cutting beef” in his house in the wee hours of the morning. The high court held, and rightly so that “cutting beef” did not raise a public order issue. However, two facts arising from this case are surprising.First, every preventive detention order is tested before an Advisory Board constituted under the NSA consisting of a person who is or has been a judge of the high court and two others who have been or are qualified to be judges of the high court. These worthies are entitled to decide whether the detaining authority has bona fide and subjectively satisfied himself of the necessity of preventively detaining the detenu. Surprisingly, the Advisory Board did not do so and therefore failed to quash the preventive detention order. The report of the Advisory Board is confidential so we will never know the reasons that weighed with it to uphold the detention.Second, it took the Allahabad high court almost one year to quash the detention order meaning thereby that the person was in jail for almost a year without a trial and only because the district magistrate felt that he should be in custody to prevent him from committing a similar offence. There are quite a few such cases, despite the minister of state in the Home Ministry having rightly informed Parliament (as reported on the website of India Today) that “Transportation of cattle and cow slaughter are not punishable offences under the NSA.”More recently, the Supreme Court dealt with the case of a student who was preventively detained in July 2024. It appears that the order of preventive detention under the NSA was for a short period but was extended from time to time till July 2025. The grounds for detention disclosed that there were eight criminal cases against him. He was acquitted in five of them; in one case he was convicted with the punishment being a fine; two cases were pending but he was granted bail. The only reason why he continued in custody was because of the preventive detention order. Preventive detention laws do not postulate grant of bail and this student remained in custody only for this reason, despite having obtained bail for alleged penal offences. The Supreme Court has not yet passed a reasoned order setting aside his preventive detention, but it appears from a reading of the quashing order that his detention was not preventive but punitive.With recurrent abuse of the NSA, the courts should now consider examining whether an order of preventive detention is actually preventative or punitive. The courts should also now consider holding a detaining authority accountable for passing an order of punitive action in the guise of preventive detention. Thirdly, the Courts should consider introducing bail jurisprudence in appropriate cases of preventive detention. Otherwise, as in the case of Parvez or the student, there is certainty that a person will be in punitive custody for a few months at least.Sonam Wangchuk was preventively detained under the NSA three months ago. Given the reasons for his detention that are in the public domain, is his detention preventive or punitive? This is as fit a case as any for revisiting the draconian law of preventive detention or at least making it more humane.Madan B. Lokur is a former judge of the Supreme Court of India.