I recently finished two collections of essays; Regulating Deviance (Norrie et al eds., 2009), and Prevention and the Limits of the Criminal Law (Ashworth et al eds., 2013). A majority of the contributions to these volumes questioned the increased tendency of legislatures in USA, England, and Australia, to introduce legislation allowing arrest and detention of persons to prevent commission of harms. This upsets the traditional liberal argument of intervening only when there is some harm that has been caused. This is countered by governments pointing to the highly uncertain times wanton acts of terrorism have brought in. Prevention, after all, was always preached as being better than a cure.
Unsurprisingly, the horrible events of the previous decade (World Trade Centre, London Bombings, Madrid Bombings, Mumbai Train Blasts, for instance), propelled the move for harsher, stricter laws. At which point I was surprised at none of these essays referring the Indian experience, for the Indian Constitution since its inception legalised preventive detention and a withdrawal of rights for those so detained. Such a constitutional denial of liberty in Article 22 sits right next to the clause guaranteeing the right to life. Yet, little discussion is evoked by having this clause today. One might say that India is thoroughly normalised to preventive detention being part of the bargain.
This new series on Preventive Justice in India is my effort to help spur some discussion on the limits of criminal law in India. Preventive Justice is an extremely populated field in India and the first set of posts will cover the constitutional text and statutory avatars will only come in later. Similar to how this blog earlier covered some issues serially, the a thorough engagement with the text will be followed by discussing how the Supreme Court has fashioned the limits of that text. The next post will re-live the very interesting history behind Article 22 of the Indian Constitution.