Preventive Detention: Article Update

(This is an article update for new scholarship and not a substantive post. The paper is available here)

Since August 5, the rest of India has been cut-off from the happenings in the (erstwhile) State of Jammu and Kashmir, except when the happenings are released at the convenience of those in power. Thus, today, we find ourselves in the remarkable situation, that even after almost 45 days, the rest of India remains unaware of the legal basis for the untrammelled show of executive discretion currently on display in various parts of Kashmir. A situation which the Supreme Court is aware of, and yet, has taken no steps to remedy either.

The eerie silence around Kashmir has also, reportedly, been brought about through widespread arrests and detentions — again, the basis for which has not been made public to the rest of us. It is probable, that a large number of these arrests have been carried out by the police using powers of what is called "Preventive Detention". But it would be a misnomer to continue calling it this, considering that it is rarely only used for preventive purposes. So I'll call it by another name by which it is known in other parts of the world: Executive Detention.

What, then, is Executive Detention? As the name suggests, this is a denial of liberty carried out by the Executive, and only the Executive, without any worthwhile judicial supervision. A Commissioner of Police can order the arrest of any person on suspicion of doing acts prejudicial to "public order" or other vague / strange grounds, without giving any reasons upon arrest, and detain persons for upto ninety days without judicial scrutiny. The law allows police to arrest first and seek approval for this detention, which only involves scrutiny by senior executive officers. Of course, the person can make a representation against this arrest and detention, but she is denied the right to counsel. And, if a non-judicial body approves, the detention can also last upto one year or more.

There is the regular outrage when Executive Detention is used by governments for, seemingly, jailing political opponents or trampling upon civil liberties. But, amidst all this, there is surprisingly little critique about the set of legal regulations that primarily governs all legislation on the subject of Executive Detention in India: Article 22 of the Constitution itself. Through Articles 22(3) to (7), the Constitution prescribes a set of do's and don'ts that the Executive Detention laws must comply with. And my description of such laws in the preceding paragraph is fully constitutional. 

The shortcomings of the legal minima prescribed by the Constitution are many. Not only were these baselines extremely generous to the Executive when compared with other existing legal positions in 1950 itself, but over time, the continuance of these baselines has created a strange duality in the law. While the judiciary has expanded the protections for individual liberty in most spheres of law, it has not been able to do so in the sphere that requires these protections the most. All of which has led to a reality where, over the years, successive governments have gradually turned the supposedly extreme measure of Executive Detention into just another law enforcement tool, by passing laws that only barely pass the already low-lying constitutional threshold. 

If that strikes your conscience, even the tiniest bit, then ask yourself: Why do we persist with this set of legal standards that maximise executive discretion to ensure public safety but by nullifying individual liberty to absurd levels? Can we not reconfigure the attempts at striking a balance between these apparently conflicting interests that the framers of the Constitution made? If we have done this for many other parts of the Constitution, noting that times change, then why not this part which  goes to the root of the Constitutions' ambition of creating a legal order that safeguards individual liberty?

In a short paper, I've tried to initiate this conversation around Article 22 of the Constitution. I strongly think that the persistence of these clauses is a blot upon the Constitution, in more ways than one, and it is no answer to say that we must live with the status quo  simply because the Constituent Assembly had brought this Article to life. This ritualising goes against the very idea of a social contract between Citizen and State, which imagines that future generations are not bound by the choices of their predecessors. It is high time we begin the discussion to reconsider the choices made by the Framers of the Constitution to place the "interests of the state" high above the "exigency of liberty of the individual". 

P.S.: I must not be mistaken to say that the choices of the past can be thrust aside by the tyranny of a majority or executive supremacy. Discussion, not imposition, is the means towards a new set of laws in a democratic republic.