I've had the chance to talk about how these kinds of restrictions on one's personal freedom are not only permissible but also covered in the Constitution's section on fundamental rights in recent years. After receiving legal training, the response from my audience was a mix of acceptance and resignation because, if the Constitution mentions preventative detention, it must be required. The response was significantly more visceral when the same discussion was had with laypeople who had not studied the Constitution; instead of reverencing the language, they pushed for changing the status quo.

This brief essay aims to challenge the legal community's belief that preventative detention is always necessary, and more significantly, to challenge our complacent belief that the Constitution's regulation of preventive detention is enough. I will show that this rule is now woefully inadequate since it takes the stance that is least protective of individual liberty and gives the government unrestricted authority to detain and arrest people without charge or trial.

A few disclaimers before we move forward. This is not a legal article providing a fully developed argument; rather, it is an essay meant to provoke thinking and conversation by presenting ideas that are, at most, preliminary. I therefore lack a clear plan of action after pointing out the flaws in the current situation. What I do know for sure, though, is that a thorough examination of preventative detention will contribute to improved solutions for regaining individual freedom from the State's already precarious hold over it.

Legal Basis:
The Central and State Legislatures in India are expressly authorised by the Constitution to enact legislation pertaining to "Preventive Detention." The Central Legislature may enact laws pertaining to "preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India" and the individuals who are subject to such custody, according to Entry 9 in List I of the Seventh Schedule to the Constitution. The Central and State Legislatures are also empowered to simultaneously enact laws concerning "preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community" and the individuals who are subject to such detention, according to Entry 3 in List III of the same Schedule.

The current extensive web of federal and state laws that permit such imprisonment without charge or trial is framed by the constitutional framework governing preventative detention. The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act of 1974, the National Security Act of 1980, the Prevention of Black-Marketing and Maintenance of Supplies of Essential Commodities Act of 1980, and the Prevention of Illicit Traffic in Narcotics, Drugs, and Psychotropic Substances Act of 1988 are the current four Central statutes that allow for preventive detention. Over time, four such laws have been passed and then revoked.

Reading Against The Grain:
As a result, the Constituent Assembly Debates depict its members experiencing a moral crisis. It implies that their dedication to freedom was unquestionable, but events compelled the Members to act, paving the way for the current constitutional order in India that permits preventative detention. This interpretation gives Article 22 a Founding-Era meaning of safeguarding individual liberty and absolves us all of our collective guilt for the Constitution's Fundamental Rights Chapter's strident exposition of a legal framework protecting legislation pertaining to preventive detention.

I was content to hold this opinion up until lately. My doubts were sparked by a friend's suggestion that I think about this: If Article 22 was supposed to limit the use of preventive detention, why has it done such a poor job of accomplishing this goal? Preventive detention has not been gradually reduced or undermined in independent India; rather, it has been remarkably expanded, normalizing it to a degree not found in other free democracies.

Examine a statement made by Ambedkar during the discussions surrounding Draft Article 15-A from this angle. In response to his own countrymen's sharp criticism about the inclusion of provisions regarding preventive detention, he shot back, saying they had "done worse." What was the purpose of this? Ambedkar was alluding to the 1947 Assembly's nearly unanimous decision to grant future legislatures the authority to detain people before they commit crimes.

So why approve laws pertaining to preventative detention in the first place if the Members were genuinely against it? It's a valid complaint, and it only gains weight when we consider the arguments made by the same Members of the Constituent Assembly during their tenure as the Provisional Parliament, which functioned as the Central Legislature for independent India from 1950 to 1951.

Reversing the presumption of innocence itself, the Provisional Parliament approved stringent bail restrictions on the eve of Independence Day, 1950, in an effort to intensify the problem surrounding the distribution of necessities and commodities. These limitations were only ever implemented once in the Raj's existence, during the Second World War, but they have since been a common feature of oppressive laws enacted by administrations that have come after independence.

However, the legislative process that resulted in the 1950 Preventive Detention Act may be the one that raises the most objections. This Act, which was passed precisely one month after the Constitution went into effect, was once more followed by the Home Minister's public declarations of distress. But in light of the statute, it becomes challenging to take their claims at face value.

If the suffering was genuine, why then create a law that treated people in post-colonial India worse than it had under the colonial government? These legislative tactics implied that the Constitution was, in some ways, merely reinforcing the myth of the rule of law, which the colonial authority had so effectively promoted. The Constitution provides, on paper, the best foundation for regulating preventative detention. However, the rule of law rapidly reverts to the human rule that it was intended to replace if the regulation just helps to legitimise the exercise of such authority rather than to limit it.

Judicial Abdigation:
An interviewee in the compelling documentary 13th, contended that the wording of the Thirteenth Amendment to the United States Constitution was not self-enforcing. People were required to read it in a way that has contributed to the mass incarceration of communities of colour, denying them freedom.

The illusion of the colonial rule of law is similar in that it cannot be effectively maintained if courts do not acknowledge their role in providing limited judicial review of executive acts. Furthermore, historical evidence demonstrates that the Indian Supreme Court has consistently upheld the theory of limited judicial review in order to maintain the fallacy that preventive detention is governed by the rule of law.

Just one month after the PDA 1950 was passed, A.K. Gopalan filed a writ suit in the Supreme Court contesting the Act's legality, starting the history of judicial abnegation. It is commonly overlooked that the arguments remained speculative because Gopalan was not allowed to provide the Supreme Court with the grounds for his imprisonment or any other documents because to the PDA.

This was crucial because it meant that instead of attempting to establish that the abuse was evident in Gopalan's incarceration itself, arguments urging the Court to overturn the rule could only focus on the fictitious abuse that it permitted. Two Justices on the Bench were nevertheless persuaded by the arguments to rule that the law was unconstitutional, but four Justices maintained the statute and endorsed the notion that the executive branch needed broad authority to carry out preventative detention. Crucially, however, every Justice concurred that the clause prohibiting a court from viewing the detention records was unconstitutional.

The ruling in Gopalan sets a particularly poor precedent because of the abstract character of the hearings. Nonetheless, the sector was dominated for at least 20 years by the Court's rulings regarding the narrow scope of judicial review in preventive detention. Gopalan's conclusions were used in later rulings to further restrict judicial review and broaden the reach of executive power. For example, preventive detention was authorised in situations where an executive detention order was issued even though the individual in question had previously been granted bail by a court on essentially the same charges.

The fact that later rulings interpreted Gopalan incorrectly and further restricted judicial review-interpreting it as support for the idea that preventive detention regulations should only be evaluated in accordance with Article 22 and not the other fundamental rights-did not help. Therefore, even in cases where the arrest was the result of the exercise of fundamental rights guaranteed by the constitution, the Supreme Court declined to review the arrest and detention without trial.

In Haradhan Saha, the Supreme Court overturned this perspective and categorically stated that the detention law would not be tested within the silo of Article 22, but also against the anvil of other fundamental rights, one year prior to the suspension of civil freedoms through a declaration of emergency. This implied that, for example, exercising your constitutional right to free expression, you could not be placed in executive detention. However, the Court managed to come to the conclusion that Article 19 "does not increase the content of reasonableness required to be observed in respect of orders of preventive detention" beyond what was specified in Article 22-even if Article 19 is reviewed in relation to preventive detention.

A lot of critical literature has been written about the story of the judicial renaissance that followed the Emergency. However, most of this literature concentrates on the numerous innovations made by the judiciary during this time, paying surprisingly little attention to what actually happened in the field of preventive detention-the subject of the A.D.M. Jabalpur decision, which was criticised for representing the judiciary's lowest point during the Emergency.

The Supreme Court reaffirmed in Maneka Gandhi that the Chapter on Fundamental Rights provided legislation with a comprehensive test instead of evaluating it piecemeal. It also significantly broadened the definition of "procedure established by law" in Article 21, concluding that, in spite of the protracted debates in the Constituent Assembly demonstrating to the contrary, this phrase effectively bore the same scope as "Due Process."

However, what would this broad interpretation of judicial review mean for the statute pertaining to preventative detention? Would this alter the pre-emergency stance that Haradhan Saha took? Chief Justice Beg firmly believed that the concept of "Due Process" in the context of preventative detention meant nothing more than what Article 22 promised. This was the only point of contention raised by Maneka Gandhi in her view. As a result, he reversed the events that had occurred in Haradhan Saha!

Conclusion
Considering the idea that preserving one's personal freedom is a fundamental constitutional goal, I aimed to show in this essay how inadequate India's preventative detention laws are on multiple fronts. Furthermore, I made the case that it is especially problematic for all parts of government to continue operating in 2019 under the same legal guidelines as in 1950.

Upon identifying the issue, the subsequent course of action involves contemplating potential solutions. I haven't come up with a strong response to that question yet. I've suggested in public venues that Article 22 be completely removed from the Constitution along with a clear statement stating that it is inadequate. This would relieve the judiciary from being constrained by the wording of Article 22 and leave Articles 14, 19, and 21 as strongholds protecting individual liberty against abuse of preventative detention by the administration.

Written by: Akanksha