By Inderjit Badhwar
There is perhaps no greater test of a democracy than the manner in which it treats an individual whom the State considers inconvenient, threatening or dangerous. It is easy for a government to proclaim its commitment to liberty when dealing with compliant citizens. The real test begins when someone challenges authority, questions official conduct, participates in dissent or is suspected of threatening public order.
That is why preventive detention deserves far greater public scrutiny than it generally receives.
The premise behind preventive detention is deceptively simple: the State should be empowered to restrain an individual before an anticipated threat materialises. Unlike ordinary criminal law, which proceeds on the basis of an alleged offence and requires the State to establish guilt through a judicial process, preventive detention operates on apprehension, suspicion and the prediction of future conduct.
This is an extraordinary departure from the fundamental principles of criminal jurisprudence. And that is precisely why it must remain exceptional.
India’s constitutional and political history offers ample reason for caution. The colonial administration perfected preventive detention as an instrument of political control. Independent India retained and institutionalised this power, even as its Constitution promised fundamental freedoms and protection against arbitrary deprivation of liberty.
The Preventive Detention Act of 1950, the draconian experience of the Emergency under MISA, and the subsequent evolution of stringent security legislation reveal an uncomfortable continuity. Governments change, political circumstances evolve, and the stated threats to national security acquire new forms. Yet, the temptation to use extraordinary powers of detention has remained remarkably persistent.
The Emergency should have permanently sensitised Indian democracy to the dangers of allowing executive convenience to prevail over personal liberty. The infamous ADM Jabalpur judgment, and Justice HR Khanna’s dissent, remain reminders of how vulnerable constitutional freedoms can become when institutions fail to stand firm. The lesson is not merely historical. It is contemporary.
Today, preventive detention exists alongside a formidable array of statutory powers under the National Security Act, the Unlawful Activities (Prevention) Act and other security-related provisions. The newer criminal procedure framework, too, provides executive authorities with powers that demand careful constitutional oversight.
None of this is to suggest that the State should be rendered powerless. India faces genuine threats: terrorism, organised violence, communal mobilisation, threats to public order and activities that can imperil national security. Governments have both a constitutional obligation and a legitimate responsibility to protect citizens.
But the existence of a threat cannot become a universal justification for extraordinary executive action.
The distinction between preventing a genuine danger and suppressing inconvenient speech or dissent is fundamental. A citizen cannot be deprived of liberty merely because the government finds his or her opinions uncomfortable. Nor can journalism, peaceful protest or criticism of public policy automatically be transformed into evidence of a security threat.
The cases examined in our cover story this week bring this contradiction into sharp focus.
The detention of climate activist Sonam Wangchuk for 170 days under the National Security Act, the judicial scrutiny of detention orders, and the imposition of substantial costs on authorities in Mulla Afroz vs Union of India illustrate the consequences when extraordinary powers are exercised without adequate legal justification. The Allahabad High Court’s experience in dealing with a substantial number of NSA detention petitions also raises serious questions about the quality of executive decision-making.
These are not simply isolated legal disputes. They concern the relationship between the citizen and the State.
Article 22 of the Constitution provides specific safeguards against preventive detention. The obligation to communicate grounds of detention, the opportunity to make a representation, and the constitutional framework governing advisory boards are not procedural formalities. They are safeguards against the possibility of a citizen being deprived of freedom on the basis of an executive assertion that cannot withstand scrutiny.
The Supreme Court’s insistence on meaningful communication of grounds of arrest and detention reinforces this principle. A person cannot effectively challenge an action whose basis has not been properly disclosed.
Equally important is the judiciary’s responsibility to examine whether the executive has acted within the law, whether relevant material exists, whether the decision is proportionate and whether the extraordinary power has been exercised for the purpose for which it was intended.
Judicial review must not become an exercise in merely accepting the government’s invocation of national security. Courts must be willing to examine the legality and constitutional validity of executive action without compromising legitimate security interests.
There is also a larger institutional question. Preventive detention laws are often defended on the ground that governments must act swiftly, sometimes before conventional criminal proceedings can respond to an emerging danger. But urgency cannot become a substitute for accountability. The more exceptional the power, the greater must be the responsibility attached to its exercise.
A democracy cannot measure its strength merely by the efficiency with which it controls its citizens. It must also measure its strength by the restraint it exercises when it possesses the power to control them.
The Constitution does not promise an absolute freedom from lawful restrictions. It does, however, insist that restrictions must be justified, reasonable and subject to constitutional scrutiny. Liberty cannot depend on the goodwill of the government of the day.
Ultimately, the question raised by this cover story is larger than any individual detention order, any particular government or any single piece of legislation.
How much freedom is a democracy prepared to surrender in the name of security? And who decides when that surrender has gone too far?
The answer cannot be left exclusively to the executive.
The Constitution must remain the final authority, and the courts its vigilant guardians. For when the State begins to treat liberty as a concession rather than a constitutional guarantee, the damage extends far beyond the individual behind bars.
It diminishes the freedom of every citizen. And that is a price no democracy should be willing to pay.
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