Ed Note: As part of our New Scholarship Section, we have been inviting discussants to respond to specific articles. This  piece is a part of a series of posts discussing the public law themed research articles featured in Volume 9 of the Indian Journal of Constitutional Law. You can access all the posts in this discussion here . In this piece, Shrimoyee Ghosh responds to Abhinav Sekhri’s “Article 22 – Calling Time on Preventive Detention”, summarized here.

Abhinav Sekhri’s piece is an impassioned and erudite exhortation to reorient our constitutional-moral compasses, by opening up a new conversation about preventive detention in India. He invites us to abjure the usual narratives about “constitutional safeguards” that legitimate the preventive detention regime. Instead, he asks us to attend closely to how Article 22 (4) to (7), serves both as the grounds and the alibi for the continued existence of preventive detention laws, which violate most fundamental precepts of rule of law and procedural fairness.

Through the works of historians of colonial legality, such as Radhika Singha and Nasser Hussain, Sekhri traces the continuities between the present-day preventive detention regime and the colonial apparatus of suspicion and detention, characterized by expansive police and administrative powers and a hyper-legal proliferation of classes and definitions of suspicious groups and individuals.  But perhaps more significantly, he points to the startling conceptual congruence between the invocations of ‘rule of law’ in British India and the incorporation of Article 22 safeguards in the Constitutional bill of rights. He argues that both these work in a similar discursive fashion to constitutionalise, normalise and invisiblise the exercise of forms of extraordinary executive power only permissible in emergencies in liberal jurisprudence.

As Granville Austin reminds us, and Sekhri demonstrates through his careful reading of the constitutional archive, “the story of due process and liberty in the constituent assembly was the story of preventive detention.” (1966: 102).  Taking us through the drafting history of Article 15-A,  Sekhri shows us that Article 22 (4) to (7) was not envisioned as a guarantee of procedural fairness, as is commonly believed, but an excuse — and a sorry and belated one at that–for substituting a more robust “due process” clause  in Article 21, as was vociferously urged by many on the floor of the constitutional assembly, with  the hollow husk of “procedure established by law”. The Constitution framers’ desire to continue the colonial preventive detention regime was in fact the primary reason that judicial review over the deprivation of life and liberty had to be subordinated to legislative prerogative and executive discretion. The “constitutional safeguards” of Article 22 (4) to (7) were thereafter inserted as a placatory concession to opponents, drawing a thin veneer of “rule of law” over the executive’s broad and largely unregulated power to detain people on suspicion, without access to legal representation, charge, trial or the possibility of bail.

Given these constitutional antecedents, the alacrity with which the British preventive detention regime was continued, and indeed consolidated and elaborated upon, by state legislatures in the post-Independence period should not surprise us. The Courts too, as Sekhri shows, have repeatedly refused to pierce the veil of “constitutional safeguards” to exercise judicial review over preventive detention orders, including after the expansive readings of Article 21 and Article 19 by the Post-Emergency Supreme Court.  In a sense, while “due process” and “reasonableness” have been read into Article 21, the self-enclosed code of Article 22(4) to (7) has served to ensure that preventive detention laws remained tied to, the procedures prescribed by the Constitution, and immune from any further substantive scrutiny. In the end, Sekhri urges us to think about why we need these clauses at all, and to seriously consider the possibility of their excision all together.

But let us turn back and dwell for a while on the beginning. Sekhri begins his piece with a reference to the “countless” nameless Kashmiris who were “detained without being produced before a magistrate, or being informed of the reasons for their arrest” in the aftermath of the abrogation of Article 370, when his piece was written. The incarcerated Kashmiri body, invoked here like a macabre spectre of the horrors of preventive detention, however, may have considerably more to offer to a constitutional history, and reconceptualization of preventive detention.

The Indian Fundamental Rights charter was extended to Jammu and Kashmir in 1954, through the Constitution (Application to Jammu and Kashmir) Order, but with some significant amendments and modifications. Among the modifications to the Fundamental Rights as they applied in Kashmir, was Article 35 (c) which stated that “no law with respect to preventive detention made by the Legislature of the State of Jammu and Kashmir, whether before or after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, shall be void on the ground that it is inconsistent with any of the provisions of this Part [the Fundamental Rights Chapter].” This meant that preventive detention laws in Kashmir did not have to comply with even the minimal safeguards of disclosure of grounds, time limits, administrative review etc. laid down in Article 22 (4) to (7). This blanket embargo on judicial review was initially enacted for a period of five years, but repeatedly extended through subsequent amending orders until 1979. Article 35 (c), the amending orders, the detention laws, and detention orders passed under it, were upheld by a Constitutional bench in Sampath Prakash vs Union of India. In 1978, the current Jammu and Kashmir Public Safety Act, the first Kashmiri preventive detention law which substantially complied with Article 22 was promulgated, initially as an ordinance by Kashmir’s first Prime Minister Sheikh Abdullah, who had himself been detained under back-to-back detention orders under the old regime. 

The fact that constitutional scholars can write histories of preventive detention, beginning with a ritual invocation of the incarcerated Kashmiri, without mentioning the constitutionalised suspension of Habeas Corpus in Jammu and Kashmir over a twenty-five-year period, is telling of the buried bodies that continue to haunt Indian constitutional scholarship. Sekhri is by no means the only one guilty of this. In recent criticism over the judicial dithering and evasions in Habeas Corpus petitions involving Kashmiri detainees, comparisons were repeatedly and exclusively drawn to the Indian Emergency and the ignominy of the ADM Jabalpur decision, silencing the twenty-five year long constitutional suspension of Habeas Corpus that Kashmir has endured. All discussions of Sampath Prakash case or indeed the case of Mohammad Maqbool Damnoo another decision involving preventive detention, were confined to the silo of the constitutionality of the Article 370 abrogation. The sequestering of the question of the life and liberties of Kashmiris from the question of Kashmir’s constitutional and political status as an extraordinary jurisdiction, is not an exceptional case about a peripheral frontier territory. It is key to understanding the structuring relationship between rule of law and the institutionalisation of multiple, unenumerated and permanent emergency powers, that undergird our constitutional framework and imagination. Despite the immense value of this intervention in unearthing some of the hidden histories of preventive detention, I cannot help but feel, like most Indian constitutional scholars, Sekhri simply does not push the envelope far enough in this direction. Sekhri ends his piece with a series of rhetorical questions, and a faint “nudge” to imagine the Constitution without Article 22 (4) to (7) preceded by the caveat that this may not actually address the problem at all, given present (or indeed past) judicial predilections. The fact is, unless we a reckon with the aporia of constitutive violence at the heart of India’s constitutional democracy, of which Kashmir is but one exemplar, we will always be left proposing unsatisfactory proposals for piecemeal reform, that we find ourselves unable to truly summon up belief in.

Shrimoyee is Assistant Professor of Law at the School of Policy and Governance, Azim Premji University. She tweets @shrimoyee_n.