The core legal question surrounding climate activist Sonam Wangchuk’s detention under the National Security Act (NSA) is whether authorities genuinely assessed the relevant facts to reach the necessary ‘subjective satisfaction’ that his actions endangered ‘public order’ or state security.
Reports indicate that Mr. Wangchuk was engaged in a hunger strike, advocating for Statehood and Sixth Schedule status for the Union Territory of Ladakh. His detention under the NSA on September 26 followed police intervention during violent protests in Leh, which tragically resulted in four civilian fatalities.
The Supreme Court has drawn a clear distinction between a breach of ‘law and order’ and a violation of ‘public order’. The latter specifically pertains to actions that have a broad impact on the entire community or the general public.
As the court noted in its 2024 judgment in Nenavath Bujji Vs. State of Telangana, ‘public order’ signifies the smooth and undisturbed flow of community life across a nation or within a particular area.
‘Law and order’ is a broader concept. For instance, a brawl between two intoxicated individuals in a public space would be considered a disruption of law and order. In contrast, ‘public order’ has a narrower scope, requiring the alleged act to have significantly affected the country as a whole or a specific region.
The Supreme Court, in its July 2025 ruling on the NSA case of Annu @ Aniket Vs. Union of India, emphasized that the difference between ‘law and order’ and ‘public order’ lies in the severity and societal reach of the act in question.
The NSA grants both the central and state governments the authority to detain individuals to prevent actions deemed ‘prejudicial to the defence of India, relations with foreign powers, India’s security, or the maintenance of public order or essential supplies’.
However, through a series of judgments, the court has consistently mandated that the detaining authority must explicitly justify a detention order based on the evidence presented and ensure that the decision-making process, including the evaluation of materials, is clearly documented when expressing ‘satisfaction’.
The court has further established strict guidelines for authorities employing subjective satisfaction under the NSA. These include considering ‘only relevant and vital material’ to reach the necessary conclusion, and an implicit duty to focus on pertinent and direct matters while disregarding irrelevant or distant factors. This allows courts to scrutinize whether the authority’s subjective satisfaction was based on objective evidence or tainted by bias, ill-will, irrelevant factors, or a failure to properly consider the case.
The Supreme Court has repeatedly affirmed that ‘preventive detention’ is an extreme measure, directly impacting an individual’s personal liberty. Consequently, detaining authorities are urged to apply this stringent law with the highest degree of caution.
The court has emphasized that the state’s failure to manage a routine ‘law and order’ situation should never serve as a pretext for invoking preventive detention. Moreover, habitual criminality alone is not sufficient grounds for such detention.
Furthermore, courts remain wary of applying the ‘broken windows theory’ in detention cases, including under the NSA. This criminological theory suggests that minor visible signs of disorder can lead to more serious crime, implying that detaining one individual might deter others. However, the judiciary views this with skepticism, especially concerning preventive measures.