How will preventive detention cases be decided after the Supreme Court’s NSA ruling?

In Mulla Afroz v Union of India (2026), the Supreme Court resolved a question that remained in doubt for nearly four decades. Indian Courts  had given discordant answers to whether a confession made to the police could support an order detaining a person without trial. Preventive detention is where the State can imprison a person without trial to forestall apprehended harm. Evidence law bars a confession from proving guilt at a trial. Its use in preventive detention, therefore, had long seemed anomalous. 

On 29 September, the Supreme Court Bench of Justice Dipankar Datta and Justice Sheel Nagu directed the release of Mulla Afroz from preventive detention noting that a confession without any independent supporting material cannot be the basis of detaining a person.

Afroz was detained under the National Security Act, 1980 (NSA) following the Sambhal Violence in November 2024 where four people died during the survey of a mosque. Afroz was arrested in connection with several of the resulting FIRs. The District Magistrate of Sambhal ordered his detention on 13 October 2025. By then, Afroz was in judicial custody and had already secured bail in one case. The Supreme Court directed the Uttar Pradesh government to pay him Rs 10 lakh in costs within a month.

Detention after bail

Afroz was arrested 54 days after the Sambhal violence. He secured bail in one case on 9 September 2025. A month later, a detention order was passed and confirmed by the Uttar Pradesh government for 12 months. It did so after receiving the report of the Advisory Board. Article 22 of the Constitution mandates such a report if the period of preventive detention is beyond three months. 

By June 2026, the Allahabad High Court had granted Afroz bail in every criminal case arising from the violence. The NSA order then became the only basis for keeping Afroz in jail. In all, he spent 20 months in custody. For roughly the last three months, he was held on the basis of an order that the Supreme Court found unlawful. 

A fresh reading of precedents

The Uttar Pradesh government relied on Aruna Kumari v Government of Andhra Pradesh (1987), where the Supreme Court held that a confession, though unusable as substantive evidence, could not be brushed aside for the purpose of detention. The Madras High Court in Suman v State of Tamil Nadu (1986), had treated a confession as relevant material. 

Justice Datta, authoring the judgement, examined what each of these judgements had decided. He reiterated the principle that a question never argued yields no precedent, as stated by former Chief Justice Sabyasachi Mukharji in Goodyear India v State of Haryana (1989). Neither in Aruna Kumari nor Senthamilselvi v State of Tamil Nadu (2006) had the detention been challenged on the ground that it rested on the detenu’s confession. The Bench therefore treated them as nothing but obiter dicta—observations that carry no binding force.

It distinguished E. Subbulakshmi v State of Tamil Nadu (2016) on the ground that the confession there was voluntary and formed only one part of the material. Because Suman predated the Constitution Bench ruling in Kartar Singh v State of Punjab (1994), the Bench overruled it on the use of confessions in detention.

Two anvils and a Constitutional right

The Bench tested the police confession against Section 23 of the Bharatiya Sakshya Adhiniyam, 2023 and Article 20(3) of the Constitution. It described the test as a “twin anvil”. Section 23, which corresponds to Section 25 of the Indian Evidence Act, forbids the proving of a confession made to a police officer against the accused. Further, Article 20(3) guarantees that no accused person shall be compelled to be a witness against himself. If such a confession is considered to be too tainted to prove guilt, a detention on the basis of such a confession requires closer scrutiny.

Kartar Singh supports this reasoning only in part. The majority opinion upheld provisions of the Terrorist and Disruptive Activities (Prevention) Act that made certain confessions to senior police officers admissible. Instead, the Bench referred to specific passages in Kartar Singh which explain that the ordinary law distrusts confessions made in police custody. Since the NSA has no similar provisions like TADA, that distrust applies with full force to detentions made under it.

The Bench then linked this principle to Article 22(5). It entitles a detenu to know the grounds of detention. The Bench relied on Pebam Ningol Mikoi Devi v State of Manipur (2010) which held that an irrelevant ground impairs this fundamental right as seriously as a vague ground does. The Bench explained that a detenu cannot effectively answer an allegation that the law itself regards as incapable of justifying detention.

The Uttar Pradesh government also did not respond to Afroz’s consistent claims that the confession was extracted through torture and threats to his life. The state government’s reply affidavit and written submissions never denied the allegation. The Court therefore concluded that the confession was not voluntary. 

Where the rule stops

The judgement was confined to confessions where there is no independent material to support it. If the detaining authority had relied on other material, the Court must examine whether that material was able to sustain the detention order on its own. A police confession corroborated by independent evidence may therefore still form part of the grounds for detention. The Bench affirmed the ruling in Haradhan Saha v State of West Bengal (1974), which expressly held that a pending prosecution does not bar preventive detention.

Importantly, the judgement noted that any detention order would fall if it rested on “wholly or in part” on legally irrelevant material. Read literally, that formulation would invalidate a detention even when a valid ground survives.  The tension is directly applicable to Section 5A of the NSA. It was inserted as an amendment in 1984 and states that several grounds in a detention order may rest separately. If one of the grounds is found irrelevant, the order will still survive on the basis of other grounds. The Uttar Pradesh government had relied on this principle, which was also applied by the Supreme Court to previously uphold NSA detentions in State of Uttar Pradesh v Sanjai Pratap Gupta (2004).

The judgement is silent on Section 5A. This is inconsequential as each of the other grounds had failed scrutiny. The question will return when a detention rests on a confession together with one independent ground that withstands review.

Material that was never shown

Examining the other grounds, the Court held that the most serious  allegations against Afroz were on the basis of material that remained undisclosed. The grounds claimed that Afroz was identified as the principle architect in inciting the crowd. This was concluded on the basis of CCTV footage and videos that were neither supplied to Afroz nor produced before the High Court or the Supreme Court. The grounds also cited messages between Afroz and an unnamed “Boss”, while recording that he had erased his phone’s data.

The Bench held that such undisclosed material cannot sustain a detention order. It questioned the police as to why they delayed Afroz’s arrest by 54 days if such contemporaneous material existed. It recorded that there was no satisfactory answer to this question. The grounds further treated a chargesheet as confirmation of his involvement in the violence.The Bench rejected that reasoning, explaining that a chargesheet records the investigating agency’s opinion and proves neither guilt nor involvement.

Detention as a detour around bail

The grounds relied partly on police information about conversations in jail, which suggested that Afroz planned large-scale violence once he was released. The Bench saw in this an attempt to keep him in custody despite a bail order, and held that such a detention is punitive in substance.

It relied on Vijay Narain Singh v State of Bihar (1984), where Justice E.S. Venkataramiah, later Chief Justice of India, wrote the majority opinion of a three-judge Bench. He warned there that preventive detention must not be used merely to clip the wings of an accused who is being prosecuted. The Bench also followed Annu @ Aniket v Union of India (2025), in which the Court set aside a detention intended to prevent the detenu’s release on bail.

The Bench held that when the ordinary criminal process is already under way , a detention order must withstand stricter scrutiny. This requires a detaining authority relying on the same incident and evidence to show a future danger beyond the allegations already being prosecuted.

A familiar template

Uttar Pradesh followed the same sequence six years earlier against Dr Kafeel Khan. Khan was arrested over a speech delivered at Aligarh Muslim University in December 2019. The Chief Judicial Magistrate of Aligarh granted him bail on 10 February 2020, and three days later, the police proposed his detention under the NSA.

The District Magistrate ordered his detention the same day, on the basis that Khan would incite students once out on bail. The Allahabad High Court set aside the detention on 1 September 2020. By then Khan’s detention had been extended twice. Chief Justice Govind Mathur and Justice Saumitra Dayal Singh found that the authorities had moved only after the bail order, without material showing any fresh threat to public order.

The same pattern has reappeared six years later: a criminal court grants bail, and the district administration answers with a detention under the NSA. Mulla Afroz now gives High Courts a standard of scrutiny, before a detenu spends months in custody on an illegal order. 

The price of  the process

The detention was confirmed for 12 months and would have lapsed within weeks of the judgement. The Additional Solicitor General had conceded that the appeal could have been in Afroz’s favour on technical grounds. Yet, the Court chose to decide the appeal on merits. Relying on Rekha v State of Tamil Nadu (2011), the Supreme Court concluded that the process of detention itself had become a punishment. It directed the Uttar Pradesh government to pay Rs 10 lakh to Afroz.

Three years ago, in Ameena Begum v State of Telangana (2023), Justice Surya Kant, now the CJI, and Justice Datta had voiced the same concern about detention. They observed that preventive detention, which the framers conceived as an extraordinary measure, had become ordinary through reckless invocation. Mulla Afroz applies that concern to the evidence on which detention orders rest. Later Benches will have to reconcile its reasoning with Section 5A. Its practical effect will depend on whether High Courts hearing habeas corpus petitions now ask what material, beyond the police’s account of a detenu’s words, supports the order.

The judgement opens with a note headed “In Memoriam”, recording the death of Ritwik Deswal, a law clerk-cum-research associate who worked with the judges. He died four days short of his 27th birthday, which fell on the day the judgement was pronounced. The Bench acknowledged his research for the judgement and dedicated this “final collaboration” to his memory, integrity, commitment to the law and love for academia.