By Inderjit Badhwar
There is perhaps no more important test of a democracy than the manner in which it treats those who challenge authority. Governments are elected to govern, laws are enacted to maintain order, and institutions are established to protect the collective interests of society. But beneath this architecture of governance lies a fundamental promise: that the individual will not become powerless before the State.
It is a promise that is easy to proclaim and sometimes difficult to honour.
The relationship between personal liberty and State authority has always been uneasy. Every government, regardless of its political persuasion, faces the responsibility of maintaining public order, preventing violence and protecting citizens from threats to their safety. No democratic society can function without these powers. Equally, no democracy can remain healthy if the exercise of those powers becomes arbitrary, disproportionate or insensitive to individual freedoms.
It is this delicate constitutional balance that lies at the heart of our cover story this week.
The recent controversy surrounding the detention of young protesters in Delhi, the invocation of preventive powers and the use of peace bonds have brought an old but important question back into public consciousness: how far can the State go in restricting individual liberty in the name of maintaining public peace?
The question is not new. India’s constitutional history is replete with examples of the tension between executive authority and personal freedom. The Emergency of 1975 remains the most painful reminder of how quickly constitutional guarantees can become vulnerable when the concentration of power is not adequately checked. The Supreme Court’s infamous decision in the ADM Jabalpur case, and the courageous dissent of Justice HR Khanna, continue to occupy an important place in the country’s legal and constitutional memory.
The subsequent 44th Constitutional Amendment attempted to strengthen the safeguards surrounding personal liberty. Yet, the existence of constitutional protections does not automatically guarantee their effective enforcement. That requires vigilance from the judiciary, restraint from the executive and an informed citizenry unwilling to take its freedoms for granted.
The distinction between arrest and preventive detention is particularly important in this context. Preventive detention is an extraordinary power. Its stated purpose is to prevent a potential threat rather than punish an offence already committed. There may be circumstances in which the State legitimately needs to exercise such authority. But the very fact that preventive detention can operate without the conventional safeguards of a criminal trial makes its careful regulation essential.
The Supreme Court’s recent insistence that the constitutional 24-hour safeguard begins from the moment an individual’s liberty is first curtailed is, therefore, significant. The Court has reaffirmed a principle that should be self-evident in any constitutional democracy: the State cannot escape its obligations by changing the terminology surrounding its actions. Whether an individual is described as detained, informally held or otherwise restrained, the deprivation of liberty remains a matter of constitutional concern.
Equally revealing is the controversy over peace bonds. The requirement that individuals undertake to maintain public peace is not inherently unreasonable. Society has a legitimate interest in preventing violence and ensuring that public demonstrations do not descend into disorder. But such provisions must be applied with care. An undertaking intended to prevent violence should not become a device for discouraging peaceful political expression.
There is an important distinction between the right to protest and the right to disrupt public life through violence. The former is an essential feature of democracy; the latter may legitimately attract legal consequences. Confusing the two can have serious implications for both civil liberties and public order.
It is also important not to view the issue exclusively through the prism of one political confrontation or one set of protesters. The constitutional principles involved are universal. The same safeguards must apply whether the people demonstrating support the government, oppose it, belong to a student organisation, represent a social movement or have no political affiliation whatsoever.
That is precisely why judicial independence and institutional consistency matter. Courts must neither automatically endorse the executive’s assessment of a threat nor substitute political preferences for legal scrutiny. Their responsibility is to examine whether restrictions on liberty are lawful, necessary and proportionate. The executive, in turn, must recognise that the existence of a legal power does not make every exercise of it justified.
The larger danger is the gradual normalisation of exceptional measures. When extraordinary restrictions become routine, society can slowly lose its sensitivity to the erosion of freedoms. A detention here, a restrictive undertaking there, an administrative prohibition elsewhere: individually, each may appear defensible. Taken together, however, they can create an environment in which citizens begin to regard the exercise of their constitutional rights as something requiring official permission.
That would be an unfortunate reversal of the democratic relationship between the citizen and the State.
Liberty is not an indulgence granted by those in authority. Nor is it an absolute entitlement divorced from the responsibilities citizens owe one another. It is a constitutional guarantee that must coexist with public order, but cannot be casually subordinated to it.
The ultimate measure of a democracy is not how efficiently it controls dissent, but how confidently it accommodates disagreement while preserving the rule of law.
Peace is important. Order is indispensable. But neither should come at the cost of making freedom conditional.
That is the constitutional promise we must continue to protect.
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