India’s Undeclared Emergency: Constitutionalism and the Politics of Resistance – A book excerpt

Arvind Narrain has been involved with research, writing and practice related to law and social concerns. He has done a bachelor’s in law from the National Law School of India University(NLSIU) followed by a masters in the University of Warwick on a Chevening scholarship. He tweets at @anarrain.

In 1975, the Indira Gandhi government declared Emergency in India, unveiling an era of State excesses, human rights violations, the centralisation of power and the dismantling of democracy. Nearly half a century later, the phrase ‘undeclared emergency’ gathers currency as citizens and analysts struggle to define the nature of India’s present crisis.

In Undeclared Emergency, Arvind Narrain presents a devastatingly thorough examination of the nature of this emergency—a systematic attack on the rule of law that hits at the foundation of a democracy, its Constitution. This clear-eyed legal analysis of its implications also documents an ongoing history of constitutional subversion, one that predates the Narendra Modi-led NDA government—a lineage of curtailed freedoms, censorship, preventive detention laws and diluted executive accountability.

Is history repeating itself then? Not quite. This book is an account of an inaugural era in Indian history. Narrain shows that the Modi government, unlike the Congress government of 1975, draws on popular support and this raises the dangerous possibility that today’s authoritarian regime could become tomorrow’s totalitarian state.

A lament, the Undeclared Emergency is also a war cry. It charts an alternative inheritance of resistance, acts big and small from the Emergency of 1975, the current day and times long gone. Dissent, he says, is an Indian tradition.

Excerpted with permission from India’s Undeclared Emergency: Constitutionalism and the Politics of Resistance by Arvind Narrain, published by Context, January 2022

Just like the Indira Gandhi regime during the Emergency of 1975–77, the current Modi regime has a readymade tool to deal with dissent: preventive detention, which is authorised by the Indian Constitution in its Fundamental Rights chapter as Article 22.1 This provision has been referred to as the ‘undemocratic heart of the Indian Constitution’ by former politician P. Padmanabhan.

Article 22 on ‘protection against arrest and detention in certain cases’ begins promisingly enough by setting out the rights of the accused person under 22(1) and (2). As per the fi rst clause, an arrested person has the right to be informed ‘as soon as may be’ of the grounds of arrest, the right to ‘consult’ and ‘to be defended by a legal practitioner of his choice’. The second clause directs that the arrested person be produced before a magistrate within twenty-four hours of arrest, and no person shall be detained beyond twenty-four hours without the authority of a magistrate.

However, under 22(3)(b), both the rights detailed above will not apply to a person detained under a law providing for preventive detention, such as the Preventive Detention Act, essentially nullifying the important protections on arrest guaranteed by the first two clauses.

Although Article 22 provides limited safeguards such as detention beyond a period of three months to be authorised by an advisory board and provides for the right of the arrested person to make a representation against such detention, both these limited rights are subject to further qualifi cations, rendering them illusory.

How did Article 22 become a part of the Indian Constitution?

Ironically, the provisions authorising preventive detention made their way into the Constitution in response to the severe criticism of the anaemic nature of the right to life guaranteed under Article 21, the then draft Article 15.

The relevant part of draft Article 15 reads: ‘No person shall be deprived of life or personal liberty except by procedure established by law…’ Many members of the Constituent Assembly felt that this provision gave the State the power to deprive an individual of the hardwon right to personal liberty, merely by passing a law and without empowering the judiciary to examine whether the law violated the right to life.

To the members of the Constituent Assembly, the role of the British in suppressing individual freedom was a painful memory. Pandit Thakur Das Bhargava drew attention to the history of the freedom struggle and how ‘laws such as XIV of 1908 called the Black Law’ were used to arrest ‘thousands, if not hundreds of thousands of Congressmen’. Under Act XIV of 1908, the British government arrogated to itself the power to declare any organisation illegal merely by notifi cation. This Act was passed in the ‘teeth of full opposition’, even though it was ‘condemned by the whole of India’. The courts did not have the power to hold that ‘the notification of the Government was wrong’. Based on this history, Bhargava argued that draft Article 15 should encompass within itself the power of the judiciary to examine legislation on the anvil of fundamental rights. To do so, he argued, the phrase ‘procedure established by law’ in the draft Article 15—which read, ‘No person shall be deprived of life or personal liberty except by procedure established by law’—should be replaced by ‘due process of law’.

K.M. Munshi too had the experience of the British Raj in his mind when he made a plea for having ‘due process in Article 15’. As he put it, ‘… there is a tendency to pass legislation in a hurry which gives sweeping powers to the executive and the police’. There will be no ‘deterrent, if these legislations are not examined by a Court of law’.

‘Due process of law’ was preferred to ‘procedure established by law’ because the former had ‘acquired a certain fixed meaning both in England and in America, as a result of the struggle for liberty against the Executive which went on there for centuries’. Bakhshi Tek Chand summarised the ‘three essentials’ of due process: ‘you will not condemn a person before hearing him; you will not proceed against him without enquiry; you will not deliver judgment against him without trial’.

In response to this impassioned plea for introducing ‘due process of law’ into draft Article 15, B.R. Ambedkar confessed that he was torn between two viewpoints, which he characterised as having to sail between ‘Charybdis and Scylla’. He was cognisant of the ‘possibility of a Legislature packed by party men making laws which may abrogate or violate what we regard as certain fundamental principles aff ecting the life and liberty of an individual’, yet, at the same time, he said that he did not see how ‘fi ve or six gentlemen sitting in the Federal or Supreme Court examining laws made by the Legislature … can be trusted to determine’, based on their ‘individual conscience’, ‘biases’ or ‘prejudices’, ‘which law is good and which law is bad.’ He said that he would ‘leave it to the House to decide in anyway it likes’.

However, nine months after the conclusion of the debate on draft Article 15 of the Constitution, Ambedkar came back with another proposal that he thought would take care of some of the concerns of those who felt that ‘we were giving a carte blanche to Parliament to make and provide for the arrest of any person under anny circumstances as Parliament may think fi t’. To address these concerns, draft Article 15A (now Article 22) was introduced, ‘making compensation for what was done then in passing article 15. In other words, we are providing for the substance of the law of “due process” by the introduction of article 15A’.11 Article 15A, while recognising the rights of an accused person to legal representation and to know the grounds of arrest as well as to be produced before the nearest magistrate within twenty-four hours, went on to authorise preventive detention. The reason for the preventive detention provision was because, in Ambedkar’s opinion, the ‘exigency of the liberty of the individual’ should not be above the ‘interests of the State’.

There was even more severe criticism for Article 15A than for Article 15. Jaspat Roy Kapoor said that the ‘whole article is jarring to the ear and is one more illustration of the conservatism which characterises the chapter on Fundamental Rights’. Bakhshi Tek Chand scathingly observed that its inclusion would ‘disfigure the Constitution’. Pandit Thakur Das Barghava called it a ‘blot on the Constitution’.

Even those who recognised that a modern State had to have preventive detention laws, such as Bhargava, argued that they must be regulated by law and that at ‘least the barest demands of justice be secured to a person who is a detainee’. H.V. Kamath concurred and opined that ‘a man is detained on suspicion only. It is but fair that our Constitution should lay down specifi cally that no detenu will be subjected to physical and mental ill-treatment’.

M.A. Ayyangar did not hesitate to point out that the chairperson of the drafting committee, Ambedkar, had no experience of jail, because of which he was not alert to the ‘hardships suffered by others’. Kapoor recalled how when Congressmen had been detained during the Satyagraha movement under the preventive detention laws, they had waited ‘anxiously’ for a review of their detention. One of the remedies pressed by both Kapoor and Ayyangar was a periodic, rather than a one-off , review of detentions.

Members articulated the incongruity of preventive detention with the Fundamental Rights chapter as well as its lack of fi delity to the ideals of the Independence struggle. Mahaveer Tyagi asked: ‘… what relevance is there for a detention clause in the Constitution which is meant to guarantee fundamental rights to the citizens?’ He argued that the clause authorising preventive detention ‘changes the chapter of fundamental rights into a penal code worse than the Defence of India Rules of the old government’. He poignantly added:

How I wish Dr. Ambedkar was with me in jail after being arrested and hand-cuff ed for a whole night? I wish he had had my experience. If he had been hand-cuffed along with me, he would have experienced the misery. I fear, Sir, the provisions now proposed by him would recoil on himself. Sir, as soon as another political party comes to power, he along with his colleagues will become the victims of the provisions now being made by him.

Kamath rounded off his critique of the provision by gesturing to the future use of this clause:

Has anybody considered how some other persons, possibly totally opposed to our ideals, to our conceptions of democracy, coming into power, might use this very Constitution against us, and suppress our rights and liberties? This Constitution which we are framing here may act as a Boomerang, may recoil upon us and it would be then too late for us to rue the day when we made such provisions in the Constitution.

However, in spite of the strong criticism, the preventive detention clause—now Article 22—was finally passed without providing for the minimal protection urged by some of the members, such as protection against torture and constitutional recognition of periodic review of preventive detention.

In Ambedkar’s closing address on draft Article 15A, he defended the article from the charge that it should not have been enacted at all, on the grounds that since the lists contained in the Seventh Schedule of the Constitution authorised both the Centre and the states to enact preventive detention laws, this article ‘put a limitation upon the exercise of making any law which we have now given both to the Centre and to the Provinces’ and hence was necessary from the point of denying ‘complete liberty’ to the governments to make just ‘any law’ on preventive detention.

He was clear that the intent behind Article 15A was to ‘curtail’ the ‘power’ of both the Centre and the provinces and to ‘put a limitation upon it’.

Based on this final summation by Ambedkar, the vote on Article 15A took place, and it was passed with the acceptance of a few important amendments proposed by the members, such as the right of the person being detained to know the grounds of detention and the right to make a representation against the detention order. Some of the questions raised by the members of the Constituent Assembly were left to Parliament to decide, such as the requirement of periodic review and the prescription of a maximum period of preventive detention. Other questions, such as the right to cross-examination, were, according to Ambedkar, implicit in the right to make a representation. Unfortunately, other issues, such as the right to be free from torture, were not addressed in Ambedkar’s closing statement.

The question which troubled many members was how a rightsloving person such as Ambedkar could have proposed this article. In Alladi Krishnaswami Ayyar’s opinion, the legitimacy of Article 15A vested in the fact that Ambedkar, who was undoubtedly ‘keen’ on ‘the problem of personal liberty’, had ‘thought fi t to bring forward this amendment’ and desired that ‘this article must fi nd a place in the Constitution’. Another member, P. K. Sen, speculated that Ambedkar was ‘overborne’ by ‘extraneous forces’, and that there were two Ambedkars in the Constituent Assembly. The ‘one Dr. Ambedkar, plain and simple as he is intensely in sympathy with the individual as regards rights and liberties and the other somewhat like the ghost of himself, as it were, like the perturbed spirit in Hamlet hovering about and over his innate love of freedom and yet being overborne by other forces’.

Ambedkar himself defended his commitment to liberty by invoking his record in the viceroy’s cabinet, where he, along with another European member of the cabinet, had ‘fought for’ the introduction of a rule ‘regarding review’ of preventive detention. He specifically referenced the accusation that he had no feeling for the detenus as he had never been to jail and said, ‘… it is not necessary to go to jail to feel for freedom and liberty’.

He disagreed with the critics of Article 15A that it was antithetical to freedom and, in fact, argued that it served to protect rights. If this debate is to be seen from this perspective, the then Article 15A and the now Article 22 must be interpreted as a safeguard of personal liberty, as that was the intent of the members of the Constituent Assembly.

The first occasion to interpret the meaning of Article 22 came when the veteran communist leader A.K. Gopalan challenged his detention under the Preventive Detention Act as violative of Articles 19, 21 and 22 of the Constitution. An old adversary of the British Raj, Gopalan had been imprisoned repeatedly by them. However, even the provincial government headed by the Congress just prior to Independence continued to imprison him for protesting against its policies. The dawn of Independence saw the Madras government release all political prisoners, except Gopalan.

In his autobiography, In the Cause of the People, Gopalan points to the irony of being a prisoner not of the British government but of the Congress government in spite of being part of the movement for Independence. Hearing cries of ‘Mahatma Gandhi ki jai’ and ‘Bharat Matha ki Jai’ ‘reverberate’ through the jail on the eve of Independence Day, he decided to celebrate even if in jail. So, on the morning of 15 August 1947, he marked the day by walking the length of the jail compound carrying the national fl ag, accompanied by other prisoners, after which he hoisted the fl ag on the roof. The jail authorities were not happy with this, but instead of dispersing the gathering with a ‘lathi charge’, they arrested Gopalan on the charge of sedition and produced him before the magistrate, before whom he made this statement:

I am proud that I am being tried for creating enmity against the legally constituted Emperor of British India. All freedom lovers in this country and the leaders of the freedom movement from its birth, like Nehru, Gandhi and such leaders, have tried to create enmity against the Emperor’s government. … As a result of all of this, his Majesty’s government and British India have ceased to exist today. Many of my colleagues who committed the same crime along with me have become Ministers and Governors. There is some incongruity in bringing me to trial at this time when on the face of it we have just achieved freedom. I am sorry that things have come to such a pass.

The ‘incongruity’ pointed out by Gopalan, however, did not seem to trouble the new government in power. As well-known human rights lawyer K.G. Kannabiran writes in The Wages of Impunity:

For the magistrate and the public prosecutor, nothing appeared incongruous. They were not able to see any break. Governance for them was a continuous process and the principles of governance set up by the British in India were seen as appropriate and relevant for free India. The advent of independence was just an event which did not disturb continuity.

Citizens were, however, disturbed by the continued detention of Gopalan in independent India and ‘agitations broke out throughout Kerala’ in September of 1947, as Gopalan notes, with ‘public meetings, demonstrations, deputations, telegrams, letters’ pressing for his release. He undertook a fast in prison and wrote to the Madras ministry, saying, ‘I was a political prisoner from 1930 to 1945 in the eyes of a foreign government. Under today’s popular government I am branded a criminal. The only reason I can fi nd for this is that I am a Communist.’

It was only following this agitation that he was fi nally released from prison on 12 October 1947, almost two months after Independence. On being released, Gopalan joined another agitation against the Congress government and was arrested again on 17 December that year. This time, he was held under the preventive detention law in Madras, which continued to be valid because the various state governments had promulgated Preventive Detention (Extend the Duration) Orders to ensure the continuance of the ‘public safety and security measures’ enacted by the British government. When these orders were challenged, the high courts of Patna, Calcutta, Orissa and Hyderabad struck down the orders applicable to the respective states as invalid.30 To cope with this striking down of state-level preventive detention laws, less than a month after the Constitution came into force on 26 January 1950, the Union government enacted the Preventive Detention Act on 15 February 1950. Gopalan’s detention was now under the authority of the Preventive Detention Act of 1950.

Gopalan challenged his detention by way of a writ petition to the Supreme Court under Article 32, which allows citizens to move the apex court for violation of fundamental rights. It was the fi rst writ petition which was heard on a fundamental rights claim in independent India and was heard by the full bench of the Supreme Court, consisting of all six judges. Gopalan challenged the constitutionality of the Act under Articles 19 (freedoms of speech, expression, association, movement, etc.), 21 (right to life) and 22 (preventive detention provisions).

The case, A.K. Gopalan v State of Madras, 31 provided the court an opportunity to affi rm the rights-protecting nature of the Constitution by examining the preventive detention provisions on the anvil of fundamental rights. All six judges went on to write six separate opinions making the judgement difficult to decipher. However, four of the six judges upheld the constitutionality of the Preventive Detention Act as a whole. The only point on which all six judges were in agreement was that Section 14 of the Act, which barred a court from requiring the production of grounds of detention, be struck down. The case was important for the ratio it laid down, particularly with respect to the interpretation of articles 21 and 22. With respect to Article 22, the only question was whether the procedure prescribed in the statute conformed to Article 22, with the majority holding in the aff rmative. (Save Section 14, which all agreed violated Article 22 and had to be struck down). With respect to Article 21, the interpretation hinged on the meaning of the phrase ‘procedure established by law’.

Chief Justice H.J. Kania put forward the understanding that ‘if the legislature prescribes a procedure by a validly enacted law and such procedure in the case of preventive detention does not come in conflict with the express provisions of Part III or article 22(4) to (7), the Preventive Detention Act must be held valid notwithstanding that the Court may not fully approve of the procedure prescribed under such Act’. Justice Bijan Kumar Mukherjea observed, ‘… even if the procedure is not exhaustive, it is not permissible to supplement it by application of the rules of natural justice’.

When it came to Article 21, the majority rejected the argument of the petitioner that ‘procedure established by law’ included within it the principles of natural justice. As Chief Justice Kania formulated it, the question was whether law was ‘lex i.e., enacted law or does it mean “jus”, i.e., law in the abstract sense of the principles of natural justice’. For the majority, the ‘law’ under Article 21 was lex, not jus.

This distinction between lex and jus is vital. If the law is lex, then as long as it is validly passed under Article 21, even if it deprives a person of fundamental rights, it is still valid, as it conforms to the test of a ‘procedure established by law’, and so the State can deprive a person of ‘life or personal liberty’. However, if the law means jus, then the procedure has to also conform to the principles of natural justice, even if it is otherwise validly enacted by the legislature.

The majority in the bench held that since the law meant by Article 21 was lex and the Preventive Detention Act was validly passed by Parliament, it could not be subject to challenge. As Chief Justice Kania said, the Preventive Detention Act ‘must be held valid notwithstanding that the Court may not fully approve of the procedure prescribed under such Act’.

Even as the majority upheld the act as a whole, all six judges expressed a sense of disquiet with the preventive detention provisions. As Justice Mehr Chand Mahajan put it, ‘Preventive detention laws are repugnant to democratic constitutions.’ He also observed, ‘Curiously enough, this subject has found place in the Constitution in the chapter on Fundamental Rights.’ Justice Mukherjea was also forthright in expressing his discomfiture and stated that preventive detention ‘cannot but be regarded as a most unwholesome encroachment upon the liberties of the people’. In Justice M. Patanjali Shastri’s opinion, preventive detention was a ‘sinister-looking feature, so strangely out of place in a democratic constitution’ and ‘incompatible with the promise of the Preamble’.

Despite voicing their discomfiture with the Preventive Detention Act, the furthest the majority was prepared to go was to strike down Section 14 of the Act, which prohibited the disclosure of the grounds of detention before a court. This was held to be a ‘drastic provision’. Chief Justice Kania disagreed with the submission of the attorney general that the ‘whole object of the section was to prevent ventilation in public of the grounds and the submissions’ and held that it violated Article 22(5), which mandates that a person has the right to be told of the ‘grounds’ of the detention and the right to representation against the order.

The discomfiture with the preventive detention provision seems to have led Justice Mahajan to pass on the responsibility of protecting fundamental rights from the judiciary to the public. He observed that ‘our protection against legislative tyranny, if any, lies in ultimate analysis in a free and intelligent public opinion which must eventually assert itself ’.

The decision in A.K. Gopalan was widely seen as a big disappointment by the human rights community. Kannabiran describes the judgement as ‘the fi rst Indian made foreign judgement’. In his opinion, Parliament’s power under Article 22(7) to legislatively sanction preventive detention beyond a period of three months without authorisation by an advisory board was a ‘drastic power’ and should have been treated as an ‘exception’. By not doing so, ‘legal grammar … abrogated liberty’ and ‘the court endorsed as valid the incarceration of political dissidents without any accountability’.

For Kannabiran, the decision in A.K. Gopalan completely bypassed the spirit of the Constitution and instead chose to engage in ‘the pettifogging of the law’. He borrowed the phrase ‘pettifogging of the law’ from Justice Vivian Bose’s dissent a year earlier in S. Krishan v State of Madras, in which the majority upheld the constitutional validity of the Preventive Detention (Amendment) Act, 1951. Justice Bose observed that one must ‘look past the mere verbiage of the words and penetrate deep into the heart and spirit of the Constitution’, which was about a ‘way of life,’ and ‘the right to individual freedom’. Justice Bose went on to hold:

Is not our Constitution in violent contrast to those of States where the State is everything and the individual but a slave or a serf to serve the will of those who for the time being wield almost absolute power? I have no doubts on this score. I hold it therefore to be our duty, when there is ambiguity or doubt about the construction of any clause in this chapter on Fundamental Rights, to resolve it in favour of the freedoms which have been so solemnly stressed.

The majority in A.K. Gopalan, according to Kannabiran, failed to interpret the Constitution as a product of a historic Independence struggle. To him, ‘Bose alone understood that words were mere symbols and indeed a gloss, and that the prolonged struggle for independence should form the key to understanding the Constitution and the laws affecting freedom.’ However, it is interesting to note that Gopalan himself was more sanguine. In his autobiography, he draws attention to the fact that the Supreme Court did hold Section 14 unconstitutional. This was important because, as political scientist George Gadbois notes in Supreme Court of India, ‘due to Section 14, Gopalan did not know the grounds of his detention and had to challenge the constitutionality of his detention in the abstract without being able to provide a particularized case as to why his detention was bad in law’.

Gopalan further notes in his book that the judgement helped safeguard the fundamental rights of those detained under the act. The important argument put forward by his counsel, M.K. Nambiar, that the Preventive Detention Act itself was unconstitutional, was ‘hotly debated by judges and legal experts’ post the judgement. He concludes that ‘although that law-suit failed to bring about my release, it was a great achievement in the sense that it raised an important constitutional issue’. His long-term perspective on the judgement is all the more remarkable as post the judgement ‘he returned to jail under police escort’.

The small window kept open by the Supreme Court through the striking down of Section 14 allowed Gopalan to approach the Madras High Court for his release, based on the argument that the grounds on which he was detained did not conform to the Preventive Detention Act. Thus Gopalan found himself before the Madras High Court in a writ which he argued himself. He notes that ‘large crowds came to hear the argument’. He was set free on the last date of the hearing by the court, but in a travesty of the judicial proceedings, was re-arrested outside the court and ‘escorted back to Cuddalore Jail’. He had to fi le another writ petition before the Madras High Court, which was heard two days after his re-arrest, and he was again released with specific directions to the police ‘not to touch [him]’. The police did not ‘dare to disobey this injunction’, and he was finally released after spending four years in jail from December 1947 to 1951 under an Indian government.

Even in the A.K. Gopalan judgement, the possibility of the Supreme Court deciding differently was kept alive through the forceful dissent of Justice Fazl Ali. The minority opinion of Justice Ali went much further than expressing disquiet or hope in an awakened citizenry; he struck the act down in its entirety. His reasoning was based on the notion that law could not mean mere ‘lex’, but had to be ‘jus’. In his reasoning, the principle that ‘no person can be condemned without a hearing by an impartial tribunal which is well-recognized in all modern civilized systems of law’ has to be a part of the word ‘law’. ‘Law’ had to mean more than ‘statute law’.

Justice Ali’s dissent was based on the thinking that though preventive detention was authorised by the Constitution, the court had the obligation to narrowly interpret the power to make a law on preventive detention to ensure conformity with fundamental rights. He argued that even the power of Parliament under Article 22(7) to authorise preventive detention beyond three months without producing the detenus before an advisory board had to be read strictly and the Preventive Detention Act failed to ‘prescribe either the circumstances or the class or classes of cases in the manner required by the Constitution’. Thus, in Justice Ali’s opinion, the power to preventively detain was limited by the framework of both Articles 21 and 22.

His dissent also took inspiration from the British judge James Atkin’s dissent in Liversidge v Anderson, in which the majority upheld the legality of preventive detention during the Second World War. Drawing upon the courageous dissent of Lord Atkin, Justice Ali observed that it ‘is difficult to say that there is not a good substratum of sound law in the celebrated dictum of Lord Atkin’ that ‘even amidst the clash of arms the laws are not silent’ and ‘that they speak the same language in war as in peace’.

Seventy-seven years later, Justice Rohinton Nariman, in Puttaswamy v Union of India, held that Justice Ali’s dissent was one of the three great dissents in the jurisprudence of the Indian Supreme Court. He approvingly cited Justice Ali’s ‘foresight’, which ‘simply takes our breath away’, on two important points:

Firstly, Justice Ali was a far-sighted critic of the viewpoint that each fundamental right was ‘a code by itself ’ and ‘independent of the others’. In his judgement, he held that ‘it cannot be said that Articles 19, 20, 21 and 22 do not to some extent overlap each other’, and in doing so, he anticipated the later wisdom of the Indian Supreme Court. Secondly, he provided a viewpoint on how to understand the word ‘law’ in its ‘wider meaning’ and ‘abstract’ formulation, thereby providing a critique of the idea that law is ‘nothing more than statute law’.

Both these points anticipated the future decisions of the Indian Supreme Court, and Justice Nariman saw this dissent through the lens of the US jurist Charles Evans Hughes as an ‘appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed’. The judgement of Justice Ali was a ‘cry in the wilderness’ till the decision of the Supreme Court in R.C. Cooper v Union of India twenty years later.

In 1970, the Supreme Court, in R.C. Cooper v Union of India, hearing a petition against bank nationalisation, held that fundamental rights were not ‘mutually exclusive’ and that the nationalisation of the banks could be challenged not only under the right to property under Article 31(2) but also under the right to freedom of trade and profession under Article 19(1)(f ).

Eight years later, in Maneka Gandhi v Union of India, the Supreme Court read the word ‘law’ more expansively to mean not just ‘lex’ but ‘jus’.Gandhi’s passport had been impounded, and when she had asked for the reasons, the Central government told her that it was not in the public interest to disclose these. Gandhi challenged this State action, and the judgement ruled that she could be deprived of her passport not by any enacted law but by a law which was ‘just, fair and reasonable’. As Justice P.N. Bhagwati held, ‘Procedure in Article 21 means fair, not formal procedure. Law is reasonable law, not any enacted piece.’ Post Maneka Gandhi, law under Articles 14, 19 and 21 is no more just ‘lex’ but ‘jus’.

However, if the ‘intelligence of a future day’ demands that preventive detention laws will be found to be violative of the right to life, liberty and equality, that day has not yet arrived. In fact, the Supreme Court has upheld the constitutional validity of the National Security Act (NSA), 1981.45 Later laws which were not enacted as preventive detention laws but have de facto functioned as preventive detention laws are anti-terrorism laws, including the Terrorist and Disruptive Activities Act (TADA), 1994 and the Prevention of Terrorism Act (POTA), 2003, both of whose constitutional validity has also been upheld. Thus, there is a constitutional sanction to both de jure and de facto preventive detention, putting the hard-won liberties of the citizen under perpetual risk from capricious, arbitrary and vengeful State action. It is in this sense that, ever since Independence, India has been under an institutional emergency in which the hard-won liberties of the citizens are perpetually under risk.

This state of aff airs has also drawn the attention of the United Nations Human Rights Committee, which, on examining India’s human rights record, described the rule by the police under antiterror laws such as TADA and the Armed Forces (Special Powers) Act (AFSPA), 1958, as having established ‘a continuing state of emergency’ without it being declared as such and without it being subjected to any time limit. Neither international scrutiny nor the broader interpretation of Maneka Gandhi as well as R.C. Cooper has made a dent in the edifice of laws authorising preventive detention. As Kannabiran notes:

 In the matter of personal liberty, the courts have by and large, as a matter of policy validated the conferment of vast power to the executive. … The legislative and interpretive history of the more than fi fty years after independence has been one of curtailing personal liberties.

Kannabiran’s point regarding the failure to protect personal liberty raises more fundamental questions. While this is undoubtedly a story of legislative and judicial failure, do the roots go deeper? Is the problem really that the idea of democracy as encompassing the freedom of speech and expression one which has yet to put deep roots in Indian society? Would the path to a judicial and legislative protection of personal liberty lie in the emergence of a wider societal consciousness of the value of protecting personal liberty?

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