Ed Note: Continuing our discussion on IJCL Volume 9, in this piece Abhinav Sekhri responds to Shrimoyee Ghosh’s critique of his Article on Preventive Detention. Read Shrimoyee’s Response Post here in which she suggests that despite its erudition, Sekhri’s piece doesnt go far enough in critiquing the violence hardwired into Indian constitutionalism.
I have taken part in these exchanges before as a discussant and so was delighted to have had this chance where my own paper was the subject of discussion. Things could not have been worse in terms of timing, and it speaks volumes to the commitment of both the editorial team as well as that of Dr. Ghosh, for having taken the initiative to have this conversation during the pandemic.
Taking the Conversation Further
The idea behind “Article 22 — Calling Time on Preventive Detention” was not to have a piece claiming to offer the only perspective on the issue. Far from it. The idea was to start a conversation on an issue and legal practice which, being caught between the intersection of constitutional law and criminal law, ends up being neglected by scholars in India belonging to both fields. It is telling that the most comprehensive writing about Indian experiences with preventive detention out there at present is by Prof. Ludsin which overall looks at a comparative argument.
By design, then, the essay avoided some areas of the law and adopted an introductory, macro-level approach — identifying signposts to help future conversations on the subject take place (summarised efficiently by the LAOT team). Dr. Ghosh’s response took that baton and developed the conversation further, focusing on Kashmir, where she critiques the essay for not exploring the violence to life and personal liberty perpetuated by legislators creating a constitutional vacuum, i.e., an extended state of exception where constitutional safeguards governing preventive detention were kept outside the erstwhile State of Jammu and Kashmir.
The essay would certainly be more complete by, at least, clarifying the legal position in respect of Kashmir and preventive detention, having referred to it at the outset and also because of how Kashmir’s context layered my own scepticism about whether absence of Article 22 would serve any benefit in improving safeguards to personal liberty. At the same time, it could not have travelled the distance which Dr. Ghosh’s response demands due to the specific, and limited, aims that the essay professed to try and achieve. Having said that, I could not help but think that in focusing on this specific disagreement, Dr. Ghosh’s response does not elaborate upon the fact that the essay shares her concern about recognising situations where the constitution’s design itself perpetuates violence and precludes it from realising a transformative ideal. Where she focused on exclusion of Article 22 by constitutional design and its consequences on personal liberty, the core argument of the essay was to critique the structure and framing of Article 22 itself, arguing that it was destined to fail in achieving its stated objective of securing personal liberty.
A theme which I wish I had more space to pursue was how preventive detention fits into the larger scheme of coercive options available to the state. The schism between the “preventive” regime and the regular criminal justice framework, which is the basis upon which courts allow both regimes to cooperate in the same case, is all but fictitious in practice. Rather, preventive detention is seen and utilised as nothing more than yet another tool for detaining persons available to the executive officials from a broad menu of coercive powers. This is why cases such as Dimple Happy Dhakad are so common in practice, where preventive detention ends up being granted on allegations in respect of which a court has already granted persons bail. The decision-making process by which preventive detention is authorised needs to be interrogated more thoroughly to help try and deconstruct the faux veil of separation which has serves as a justification for using “preventive” detention even after a person has been incarcerated as an undertrial for months on end, ultimately compounding the assault on personal liberty.
Focusing on the specific context of Kashmir is essential, but at the same time, it is necessary for me to drive the conversation back to the idea of preventive detention in general. Flagging this idea was the core purpose of the essay and it has unfortunately gone without response or engagement. An extraordinary practice which has no place in a democratic system, preventive detention has been normalised to such an alarming extent in India that, as per the 2019 Crime in India statistics (page 1211), over 1 lakh persons across India were reportedly detained under this legal regime of exception. Remember, that these are only reported figures provided by the government, notorious for their inaccuracy and cushioning.
The essay unpicked the preventive detention regime to argue that a significant reason why making preventive detention was easy and personal liberty so cheap, was the constitutional “safeguards” set out under Article 22 and their implementation. It also argued that owing to the legacy of this regime, shifting the norm will prove extremely difficult — even if Article does somehow go away, the routineness of using coercive strategies is deeply embedded within all limbs of the state. The issues here are most imminent; yet, the Supreme Court thus far has refused all invitations to re-orient the terms of the preventive detention regime if not re-imagine them, and constitutional scholars still treat the area as undeserving of any serious engagement or attention. I agree with Dr. Ghosh — this status quo must change if we are serious about a commitment to personal liberty, and I can only hope that conversations started here are taken forward across contexts and time.