Preventive detention must be used judiciously

On June 8, 2018, Chandrashekhar Azad, a Dalit leader from Uttar Pradesh, completed one year in jail. Azad was not serving jail time after being convicted in a criminal case. Far from a conviction, there had not even been a trial. Azad was, instead, in “preventive detention”. His time in jail was — and continues to be — sanctioned by the National Security Act of 1980, which allows the State to imprison people for up to one year without bringing a charge against them. The NSA had been invoked by the Uttar Pradesh government in November, when Azad had already been held in custody for a few months on charges of rioting and attempt to murder. Ironically, it was invoked again, immediately, after Azad was granted bail by the Allahahad High Court, which specifically observed that the charges against him appeared to be politically motivated.

Azad’s year in jail without bail or a trial throws a sharp light upon the Indian Constitution’s original sin: a compromise made by the framers in 1950, which has haunted the polity ever since. Writing a Constitution for a country racked by the violence of Partition, maintaining public order was a primary concern for the framers. For this reason, they introduced in the Fundamental Rights chapter a provision that has few parallels elsewhere: Article 22, which specifically authorises “preventive detention”. Preventive detention had been the colonial regime’s weapon of choice to muzzle political dissent, and its introduction into free India’s Constitution elicited strident protests. “We were crying hoarse when the Britishers were ruling,” lamented a member of the Constituent Assembly, “that they were keeping in custody persons without bringing them to trial.” But Article 22 was ultimately adopted on the assurance that it was hedged in with procedural safeguards, and would never be abused by Parliament or by the Executive.

In the 70 years since Independence, however, this hope has proven to be false. Chandrashekar Azad’s case is just the latest example of the abuse of preventive detention provisions under laws that strongly resemble their colonial forbears. From the time the Constitution came into force, governments at the state and the centre, of every stripe, colour, and ideology, have invoked preventive detention to lock up inconvenient opponents by slapping vague accusations on them, and without the necessity of having to prove them at trial.

The abuse of preventive detention laws has not been tackled by the courts, which have consistently taken the side of the State. Under our Constitution, even though preventive detention is authorised, laws that provide for it must still meet the tests of reasonableness and proportionality. The courts, however, have failed to scrutinise preventive detention laws with any degree of rigour, and to check whether they are consistent with individual liberty and freedom (the National Security Act, for example, was upheld by the Supreme Court in 1980, at a time when the memory of the Emergency was still very fresh). Secondly, under preventive detention laws, any challenge to a detention order does not, in the first instance, go before a court, but before an “advisory board”. As the record shows, however, advisory boards are reluctant to act against the State and set aside orders of detention, primarily on the ground that it is the Executive that is best positioned to assess threats to public order.

That kind of logic might have been suitable for the colonial regime, for which maintaining law and order against a restive population was the primary concern, but it cannot be suitable for a democratic and independent republic where freedom is a fundamental value. Keeping a person in jail without charge and without trial is a serious violation of the rule of law even if the Constitution sanctions it in principle. Its use must be limited to exceptional cases, and scrutinised carefully by the advisory boards and the courts. Courts, on their part, should not be hesitant in setting aside preventive detention orders, unless the State can make out a compelling case. That would be truly in keeping with the spirit of the Constitution. It would also ensure that the UP government either make good its case against Chandrashekhar Azad in a court of law or allow him to rejoin his fellow citizens as a free man.

Gautam Bhatia is an advocate in the Supreme Court

The views expressed are personal