IN HIS DISSENTING OPINION in Liversidge vs. Anderson (1942), Lord Atkin valiantly said,
“In England, amidst clash of arms, the laws are not silent. They may be changed but they speak the same language in war as in peace. It is always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.”
Lord Atkin’s dissent is widely celebrated as a progressive intervention in the jurisprudence of civil liberty. However, the actions of the Indian judiciary regarding the State’s recurring use of preventive detention measures to curb free speech suggest a starkly different story. It is frightening how silent the courts can be amidst brutal violations of civil liberties.
Renewed concerns over preventive detention
On October 2, Gitanjali Angmo, wife of 59-year-old engineer-turned-teacher-turned-climate activist Sonam Wangchuk, approached the Supreme Court of India seeking information about her husband’s whereabouts. Mr. Wangchuk had been detained under the National Security Act, 1980 (‘NSA’) —India’s most sweeping preventive detention law—by the Ladakh police on September 26. His arrest was linked to the September 24 violence in Leh, which left four dead and nearly 150 injured.
Mr. Wangchuk emerged as the leading face of the civil society protest movement in Ladakh, which has been demanding constitutional safeguards such as statehood, inclusion under the Sixth Schedule of the Constitution, and protection of the region’s fragile ecology. He and fifteen others were on the fifteenth day of a planned thirty five-day hunger strike when violence broke out. This marked his fifth hunger strike in the past five years, undertaken to draw the government’s attention to these issues.
While the Home Ministry has accused Mr. Wangchuk of “making provocative statements” and using the protest as a platform to mislead the public and advance his political ambitions, the authorities have yet to disclose the detention order.
In response to a writ petition filed by Dr. Angmo under Article 32 of the Indian Constitution, the Supreme Court has issued notice to the Central Government. The petition contends that the detention is unconstitutional under Article 22, as neither the detainee nor the petitioner has been provided with the grounds of arrest. Although the substantive issues are expected to unfold in the upcoming hearing, the Centre has maintained that there is no obligation to disclose the grounds of detention to either the detenu or the petitioner—raising serious concerns about transparency and adherence to constitutional safeguards.
A tool of suppression
Section 8(2) of the NSA allows the detaining authority to withhold information about the grounds of detention in “exceptional circumstances” for five days which could be extended to a maximum fifteen days. Without the order, the adjudication of the matter is not possible.
The Supreme Court in Kharak Singh v. State of UP (1963) held that fundamental rights cannot be infringed upon in the absence of law. In Harla v. State of Rajasthan (1952), the Court held that if there is a law, that law must be promulgated publicly so the citizens may know about the law and the basis on which their fundamental rights are restricted. Secret laws are an anathema to the very concept of the rule of law.
While the arrest of Sonam Wangchuk has reignited concerns over the potential abuse of the NSA, the Indian State has, over the past decade, increasingly relied on preventive detention laws to suppress free speech and stifle dissent against the state and its institutions. Whether it is the case of Umar Khalid, arrested under India’s umbrella anti-terror law, the Unlawful Activities (Prevention) Act, 1967 (‘UAPA’), or that of 76-year-old Mian Abdul Qayoom, President of the Jammu and Kashmir High Court Bar Association, detained under the Jammu and Kashmir Public Safety Act, 1978 (‘PSA’), India’s preventive detention regime consistently reveals how such laws enable courts to draw sweeping conclusions on the basis of tenuous and suggestive evidence.
A dual approach
Writing in 1982, Upendra Baxi argued that India’s legal system was constituted by two parallel regimes. While the criminal justice system was characterised by elements of due process, personal rights, and rigorous judicial review of the State power, these features are absent in the preventive detention system. According to Baxi, it is an institution ‘authorised by the Constitution itself’.
Presumably, this means that Article 22, which mandates that every arrested person be produced before a judicial authority, also allows the State to override these safeguards through legislation. The jurisprudence of preventive detention is marked by two glaring features: first, the Court has insulated the preventive detention regime from the rest of the fundamental rights. Second, historically, the Court has upheld executive supremacy and judicial deference over the regime of preventive detention. It is rather remarkable for a country emerging from the spell of oppressive colonial rule, to adopt a constitutional framework that legitimises preventive detention measures.
In principle, preventive detention cannot be challenged as it is duly prescribed in the Constitution and further reiterated by the top Court in multiple verdicts. This approach reached its zenith during the bleak Emergency (1975-77) period. In ADM Jabalpur v. Shiv Kant Shukla (1976), the Court proceeded to uphold complete denial of the venerated right to habeas corpus, even against arrests based on mistaken identity. This marks a continuity with a jurisprudence where the judiciary essentially acts as an ‘executive court’ upholding executive supremacy and denial of remedies.
However, there exists a simultaneous jurisprudence wherein, over the course of multiple judgements, the Court has asserted the ‘just, fair, and reasonable’ law requirement under the triangle of Articles 14 (freedom of speech and expression), 19 (equality before law and equal protection of law), and 21 (life and personal liberty).
It is crucial to note here that the ‘silos’ approach in A.K. Gopalan v. State of Madras (1950) which was re-examined in R.C. Cooper v. Union of India (1970) and later substantiated by Maneka Gandhi v. Union of India (1978) observed that, with the introduction of the ‘due process’ in Article 21, preventive detention laws could also be tested on this threshold. Besides, the purpose of clauses (3) and (7) under Article 22 is to ensure that the interest of the state security is to be protected while individual liberties are least compromised.
While upholding the right to privacy as a fundamental right, the Court in Justice K.S. Puttaswamy (Retd.) v. Union of India (2019) held that, while examining the infringement of rights under Articles 19 or 21, the Court will apply the proportionality standard.
The proportionality standard requires a showing that infringing measures were necessary in the absence of any reasonable alternatives. Over the years, courts have been least cognisant of the application of the proportionality standard in cases of preventive detention, where it is necessary for the detaining authority to show that infringing measures are necessary to attain a particular objective, in the absence of reasonable alternatives. In the absence of these procedural checks, laws like NSA give complete immunity to the State on the issue of detention.
Judicial deference
Under normal circumstances, if a person is arrested, she is guaranteed certain basic rights. These include the right to be informed of the grounds of arrest, right to bail, rights to be produced before a court within 24 hours of arrest, and right to consult and be defended by a legal practitioner of her choice. However, none of these rights are available to a person detained under preventive detention laws.
Additionally, laws like NSA, UAPA, or PSA bar legal challenge to detention orders on grounds of sufficiency of materials or subjective satisfaction of detaining authority. This makes it very difficult for detainees to secure bail or release unless the court finds procedural violations.
For example, an analysis of UAPA’s post-arrest provisions demonstrates a draconian procedure: pre-charge sheet detention up to six months, the near impossibility of getting bail, and the inordinate length of an average trial, effectively leading to years of incarceration before a final acquittal. Under NSA, the pre-charge sheet detention period could stretch to twelve months. These provisions submit unlimited discretionary power on the prosecution to outline and decide the future course of the case. Thus, proving absence of mens rea becomes a highly improbable task for the accused. In the law of crime, the term mens rea refers to criminal intent. This coupled with the reversal of onus of proof on the accused makes a bleak case for bail under provision of preventive detention.
In the context of the relationship between the State power and individual freedom, the above discussed incidents call our attention to three aspects vis-à-vis the preventive detention jurisprudence in India: first, the Court’s pro-liberty standards have never been applied when it comes to preventive detention. Second, although the regime of preventive detention and the state of Emergency are constitutionally mandated, they are exceptional situations. Third, over the last few years, the Court has allowed its approach towards these exceptional situations to be the norm, specifically when it comes to anti-terror laws.
In assessing such laws, the Court has effectively replicated its state of exception jurisdiction to endorse a permanent state of Emergency. Absolute immunity to the executive, sheer absence of liberty, and lack of application of mind by the judiciary have become a permanent feature of preventive detention law in India.
Betrayal of transformative constitutionalism
The framing of the Indian Constitution is considered to be a transformative moment, which is reflected prominently in the Fundamental Rights chapter. Through the guarantees of the core civil and political rights, such as freedom of speech and expression, life and personal liberty and equality before law, Part III of the Constitution appears to place autonomous, self-determining individuals at the heart of the constitutional order
However, the Indian judiciary has had a very awkward relationship with civil liberties. Historically, it has struggled to defend free political speech and expression against the State. Over the course of its history, contrary to the popular perception, the judiciary has interpreted these clauses in a way that the restrictions have swallowed the rights, and the State has been given a more or less free reign to infringe these rights through executive acts or statutes.
However, there have also been instances where the Court, in a series of cases, upheld that if a law is challenged in a court of law, it is the Court’s constitutional duty to decide whether a Fundamental Right has been infringed upon and whether that infringement is justiciable under the Constitution.
This is precisely the vision of transformative constitutionalism the judiciary has upheld over the course of its existence. Yet, more than seven decades after independence, the State and its institutions appear strikingly detached from this ethos—nowhere more evident than in their continued reliance on and justification of the preventive detention regime. When the State criminalises expression of ‘disaffection’ against the policies of the State as seditious, and citizens live in a regime where there is a constant oscillation between the need to speak up and the necessity to survive, the essence of democracy stands at the brink of collapse.