The Punjab and Haryana High Court has held that preventive detention cannot be mechanically confirmed merely because an Advisory Board has approved it, making it clear that the “appropriate government” or confirmatory authority must independently apply its mind not only to the need for continued detention but also to the period for which such detention is to continue.Delivering the ruling on the scope of executive power under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances (PITNDPS) Act, Justice Sumeet Goel held that the power to confirm preventive detention is not absolute and must be exercised rationally, with due care and recorded reasons.The case arose from a challenge to a detention confirmation order passed after the Advisory Board had given its opinion. The order had confirmed detention and directed that the detenue would remain in custody for six months from January 8, the date of detention.The court, while examining the issue, used the case to explain the broader constitutional framework governing preventive detention. It observed that at first glance, preventive detention appears fundamentally inconsistent with a constitutional democracy governed by the rule of law, which treats personal liberty as sacrosanct.“To incarcerate an individual ante delicto or before the commission of an offence, based on mere executive apprehension rather than post delicto or after a punitive trial, sharply conflicts with the venerable maxim libertas omnibus rebus favorabilior est, i.e., liberty is to be favoured above all things,” Justice Goel observed.At the same time, the court noted that constitutional governance is not based on idealism alone but also on practical necessity and the need to preserve public order and national security. It said the Constitution framers retained preventive detention provisions despite their strong commitment to civil liberties, recognising the need for safeguards against threats to sovereignty, integrity and societal peace.“The rationale underlying such retention was neither accidental nor ornamental… In such circumstances, the law cannot afford to lock the stable after the horse has bolted,” the court observed.However, it cautioned that such provisions cannot be used to justify unchecked executive power. “This inclusion was never an endorsement of executive tyranny,” the court added.On the central legal issue, the High Court clarified that an Advisory Board’s approval cannot automatically justify continued detention. “The Appropriate Government/Confirmatory Authority cannot treat a positive/affirmative opinion of the Advisory Board as a mechanical mandate for continued incarceration,” Justice Goel held, adding that the Board’s opinion is only part of the material and not the entire basis for decision-making.The court further held that the government must independently examine the entire record of the detenue and form its own subjective satisfaction, rather than merely adopting the Advisory Board’s view.It also emphasised that the confirmation order must be a speaking order that clearly reflects the reasoning process of the authority. Independent application of mind, the court said, must be visible within the order itself and cannot be assumed later.The Bench warned that any confirmation order passed as a “rubber stamp” or a reproduction of the Advisory Board’s opinion suffers from non-application of mind. Such an order, it said, becomes a mere executive assertion and cannot survive judicial scrutiny as it goes to the root of jurisdiction.