The Special Powers Act, 1974 stands as perhaps the most criticized law in the history of Bangladesh. Via the 2nd Amendment of 1974 the provision of preventive detention inserted into our Constitution. The Act was enacted on February 9, 1974. From the time of the enactment to now arguably it is the most controversial law in our legal system. Before the independence of 1974, there were several laws that functioned in Indian Sub-continent which contained the provisions of arbitrary detention such as Bengal Regulation III of 1818, Preventive Detention Act, 1950 etc. Regardless of which political party has held office, all successive governments in Bangladesh have resorted to the Special Powers Act. Because the Act is typically applied covertly, the current frequency of its use remains impossible to determine with any precision. The SPA primarily targets political activists, the opposition and other critics of the government. The Act has functioned as one of the main weapons to breach human rights and muzzle critics.
After the July Mass-Uprising in 2024, the interim government amended several laws of Bangladesh, notably the Code of Criminal Procedure, 1898; the Code of Civil Procedure, 1908; Cyber Protection Regulations, 2025; Nari O Sishu Nirjaton Daman Ain, 2000; and at least twenty-plus laws. These amendments were positively reflected in our legal system, and law experts, professors, and lawyers appreciated this initiative. However, the interim government did not amend the controversial provisions of the Special Powers Act, 1974.
All the provisions of the Special Powers Act, 1974, are not controversial. It has many important provisions for controlling hoarding and dealing in the black market, counterfeiting, smuggling, food adulteration, etc. The Act is mostly criticized for the provisions of preventive detention. Sections 3 to 14 of the Act concern preventive detention, and Section 2(f) provides the definition of a 'prejudicial act,' on the basis of which detentions are made under Section 3. Section 3 states that the Government may issue an order directing a person's detention (or requiring them to leave Bangladesh in a specified way) if it is satisfied that such action is necessary to prevent that person from committing any prejudicial act.
'Prejudicial act' under Section 2(f) is defined as any act intended or likely to prejudice Bangladesh's sovereignty, defense, or security; impair its relations with foreign states; endanger public safety or order; incite communal or sectarian discord; promote hostility between classes or groups; sabotage essential infrastructure, utilities, or services; harm the state's financial, economic, or essential supply interests; or assist enemies during wartime. According to reports from the US Department of Justice, the SPA permits arbitrary detention without charge; the aspect of the SPA that is most abused and misused is the use of preventive detention.
According to Section 10 of the SPA, the government can detain a person under the SPA without trial for as long as 120 days. The use of the SPA usually originates with the Ministry of Home Affairs. They give directions at the district level to the Deputy Commissioner regarding which people to arrest under the SPA. The Deputy Commissioners then give instructions to the police to arrest and detain those individuals. The detainees are usually held for a minimum of 30 days, and their detention is typically extended for another 30 or 60 days. Under the SPA, detainees are allowed to be held for a maximum of 120 days without government evidence.
During the period of detention, a detainee is deprived of the rights mentioned in Article 33 of the Constitution. Not only this, but it also violates the right to life and personal liberty, as well as the right to equality before the law guaranteed by our Constitution. The provisions of the SPA are also contradictory to Article 9 of the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights. According to reports by Amnesty International, the SPA has been used to detain people without any criminal charge, which is inconsistent with international human rights law.
In the case of Liversidge v. Anderson, Lord Atkin gave his dissenting opinion that every imprisonment without trial is prima facie unlawful, and the onus is upon the detaining authority to justify the detention by establishing the legality of its action according to the principles of law. In the Aruna Sen case, the Supreme Court of Bangladesh observed that an order of detention passed with mala fide intent or for collateral purposes is illegal. The grounds of detention must be relevant, free from vagueness, definite rather than indefinite, and sufficiently clear and precise to enable the detained person to exercise their constitutional and legal right to make an effective representation against the detention at the earliest opportunity, as guaranteed under Clause (5) of Article 33 of the Constitution and Subsection (1) of Section 8 of the Special Powers Act, 1974.
Furthermore, if any of the grounds are found to be irrelevant or non-existent, the detaining authority's satisfaction is vitiated, as it would have been influenced by a combination of valid and invalid grounds, rendering the detention order non-compliant with the requirements of law and, therefore, invalid. However, the practice remains the same, and in most cases, the grounds of detention are vague and politically motivated. According to the US Department of Justice, the SPA overrides safeguards against arbitrary detention in excess of 24 hours in Bangladeshi laws. It allows the government not only to detain anyone without having to justify the detention before a court but also to keep the detainee in prison initially for up to four months or, in certain cases, indefinitely, without charge.
While the interim government has made strides in legal reform, leaving the Special Powers Act untouched risks overshadowing its achievements. By failing to dismantle this 'veiled despot of detention,' the administration is essentially handing a loaded weapon to the next government. If the spirit of the July Uprising was to end state oppression, the repeal or reform of the SPA is not just a legal necessity; it is a moral debt owed to the people.
The writer is a legal Researcher and student of the Department of Law, State University of Bangladesh
