This article has been written by Shashwati Diksha, LLM, Symbiosis Law School, Pune.
The cardinal principle of criminal justice system is that a person shall be presumed to be innocent until proven guilty; and in Indian criminal justice system the safeguard bestowed upon by this principle is further guarded by raising the bar of burden of proof on the prosecution to beyond reasonable doubt. Indian Constitution created a loophole in this well-established principle by constitutionally mandating a recourse which has in the pre-independence era remained a medium of oppression of its numerous freedom fighters. Ironically, even though the framers of the Constitution had a close encounter with the evil of preventive detention, yet they chose to follow their predecessors in power and gave birth to a provision which was capable of shaking the plinth of personal liberty and was highly susceptible to misuse by the executives. The year 1950 marked the beginning of an era which witnessed the inception of preventive detention laws as a temporary step taken in the wake of controlling situations which were seen as a threat to the newly formed democracy and slowly transformed itself into a necessity. This necessity was justified by the Parliamentarians owing to numerous non-emergency situations like economic crimes, law and order situation etc. Eventually, the scope of preventive detention grew in every possible direction and it no longer remained an emergency or temporary provision. Hallie Ludsin, the author of the book ‘Preventive Detention and the Democratic State’ has made an attempt to explain this phenomenon by developing a theory of slippery slope. Preventive Detention Laws has been described as a slippery slope, and the frequency and gravity with which a State uses it ascertains as to how far they have slid down on that slope, with the abuse of personal liberty and due process being the maximum at the bottom of the slope.
Hallie Ludsin’s Preventive Detention and the Democratic State is a remarkable attempt in systematically developing the plinth over which the structure of Preventive Detention laws stands. The author has tried to correlate every chapter of the book with a concept of ‘slippery slope’ which is evolved by the author to depict a situation where preventive detention laws in any democratic state is like a slippery slope, where on the top edge of it is the democratic state keeping civil liberties at the highest pedestal, while the lower edge of the slope are those states which lose control in the application and jurisdiction of the preventive detention laws in order to let the civil liberties be superseded by security concerns of the State. The author seeks to develop a comparative study between the preventive detention laws in several countries like the USA, the UK, Israel, and Australia, with keeping India’s experience as a benchmark to judge as to how far these states have transgressed over this slippery slope. By deviating from the rhetoric approach in explaining preventive detention in India majorly focusing upon Article 22 of the Indian Constitution, Hallie’s book has tried to take a path visiting the historical events and legislation which has played a major role in shaping the Preventive Detention laws in India as it stands today, is fresh but lengthy at the same time. The author has slowly narrowed down the focus of the readers to specific piece of legislation by taking an inroad from the broadest point of policy debates to how the International Laws are dealing with the practice of Preventive Detention in a namesake manner and to finally how India has landed up in a situation where governance without preventive detention has become impossible as they consider themselves being in a perpetual state of emergency or rather a risk State. The author has divided the book into thirteen chapters; with the initial three chapters developing the cornerstone of the book by discussing the theoretical framework, policy debates and the International Law’s role in curtailing arbitrary detentions. From chapters four to seven the author has comprehensively dealt with the situation in India per se, while the subsequent chapter taking the path of comparative study.
The initial chapters creating a groundwork for Hallie to develop the concept of slippery slope and liberal democracies sliding down them ending up in a situation where liberality is the casualty deals with the traditional exceptional circumstances which invited the utilization of preventive detention. The author introduces the readers to the basic principles which are utilized throughout the book to weigh the validity of preventive detention laws like the cost-benefit analysis, risk society, state of exception, deviant others who will be the target of the said laws, the policy matters like who and how will take the decisions regarding preventive detention laws. Throughout the book the author has tried to let the thread of constitutionalism off-shooting into the principles of rule of law, separation of power, due process rights etc. run through the analysis, leading this to be a coherent piece. The third chapter of the book which deals with the contribution of International Law has in an unconventional manner accepted that the two branches of International Law that deals indirectly with preventive detention laws at the International level i.e. IHL and IHRL are overlapping and weak in application, therefore has succinctly mentioned as to which document will apply in a particular exceptional circumstance. Although, this mannerism has practically depicted the working of the principle lex specialis, yet it could not convince the reader that International Law can play a major role in restricting the States from applying preventive detention laws in varied situations, as believed by the author herself.
It is a novel idea that the author has developed, that the states are utilizing preventive detention laws as an Insurance Policy in order to deal with the risk society that is developing in every state. The idea is fresh and can be utilized for further analysis by the readers if that insurance policy is what we need at the cost of various freedoms and rights of individuals.
Hallie in the second part of the book extensively dealt with the civil liberties concerns in India in view of its history regarding preventive detention laws. Throughout the fourth chapter, the author has percolated the idea regarding the transformation of preventive detention ‘from a colonial despotic tool to a necessary evil to manage crisis to an ordinary law enforcement tool’ (pg. 153). Hallie has brought to the forefront the idea that the colonial rulers of India made the necessity of preventive detention imperative and so did the post-constitutional rule in India religiously followed. The author gives an insight into the colonial rule laws pertaining to preventive detention, with the sole aim to target anyone who will be against the interest of the British Rule. This having an uncontrolled jurisdiction to target any person was purely authoritarian in nature. The legislations which provided for preventive detention in that era were East India Company Act, 1784, The Rowlatt Act, 1919, and a few temporary preventive detention legislations during the two World Wars. Even though these pieces of legislations were despotic in nature yet there is not much to discuss about them on the basis of rule of law, as the aim of these legislations were not to promote civil liberties in the colony but to strengthen the British Rule. The real analysis of the author begins in the post-independence era. Hallie by various references to the constitutional debates put forth the reasons why India gave a constitutional protection to preventive detention and that too with the bare minimum rights to the detainee. What the readers can assimilate from this part of the book is that it was strongly considered by the constituent assembly members that India faced an unsettled position and had numerous enemies to its newly formed democracy and therefore it invited the utilization of preventive detention laws in the country even during peacetimes. This view is largely accepted too, but what remains questioned is the need to give such an authoritarian provision a constitutional mandate.
In the same chapter of The History of Preventive Detention in India, the author has put forth the analysis of the preventive detention laws which were there in practice in the country and repealed later on. The analysis categorically traces the transition in the targets of preventive detention laws in India as well as the opposition by the parliamentarians during the debates. It all began with the Preventive Detention Act 1950 when the government was trying to protect the infant democracy from any emergency that might arise. When the incident of partition was recent and the country was facing an uproar from the communists, secessionists and the criminal justice system in the country was not in a stable position then the concern of the parliamentarians was justified. The target of the Act then, was to begin with, was a generic term i.e. antisocial and antinational. Anti-nationals included communists and groups seeking independence from or autonomy within India; whereas anti-social category largely covered criminals like dacoits, goondas, habitual offenders, smugglers, black-marketeers, and communalists. The next in line is the Defense of India Act 1962, which was brought in for the wartime as India was facing a war with China in those years. The author very crisply mentions the target of this Act as anyone who might be disloyal to the country or fall under Chinese influence to hoarders, profiteers and mischief makers. This was yet again a very broad category of people who can be targeted. After this is the turn of one of the most highly misused preventive detention act in India i.e. Maintenance of Internal Security Act 1971, the targets of it being Naxalites and Pakistani spies. Apart from that it also targeted usual antinational and antisocial elements. Therefore, throughout this chapter, the author has attempted to crystallize as to how the scope of preventive detention laws was allowed to bloom in every possible direction leading to its widespread misuse. All these pieces of legislation were repealed and until now the readers have been given enough insight as to how tyranny was something towards which the democratic state has transgressed.
Taking the present analysis further, Hallie has the next chapter regarding the preventive detention legislations which are in force at present too. This chapter categorically deals with the four legislations which widen the ambit of the deviant others who would fall as the targets of these Acts. It went on to include economic offenders like smuggles, traffickers, terrorists, black marketeers, usual criminals and antisocial as well as anti-national elements of the society. The author, in this chapter has tried to cover all the aspects starting from the uncontrolled scope of these laws, the opposition made by the parliamentarians not on the basis of lack of civil liberties and protection of detunes as well as doing away with the preventive detention laws all together but on the basis that it will be misused against themselves only. Hallie also draws the reader’s attention towards the phenomenon that all these legislations have been brought in with the assistance of Ordinances passed by the President, which was later hustled in the parliament with a pre-conceived notion that preventive detention rights in the hands of executives is indispensable for governance. The further curtailment of rights available to the detainees during the period of emergency, and the attempt made by the 44th Amendment Act to the constitution becoming futile due to the government’s resistance to notify section 3 of the Act which gave enhanced rights to the detainees. The author also pointed to the incapacity and reluctance of the judiciary to step up for the civil liberties of the detainees.
Finally, while concluding the Indian analysis of preventive detention, Hallie has systematically related the conclusions of the previous chapters to her opening remarks regarding slippery slope of preventive detention and all other policy debates. Hallie concludes that India has slipped down at the bottom of the slippery slope and hence cannot be addressed as a liberal democracy. The aspect that could have given this analysis a slightest possible bend towards practical difficulties would have been the ascertainment of the problem from the executive’s side especially in the extreme situations of curbing and delimiting if not eradicate the problem of terrorism. That perspective is, unfortunately, lacking in this attempt to analyze the preventive detention laws in India.
Hallie in the next few chapters deals with the comparative study of the said laws in the country like the United Kingdom, the United States of America, Israel, and Australia. The author makes an assessment that the UK and the USA are the liberal democracies who if do not learn from the lessons from India then they will be the next in slipping down the slippery slope of preventive detention.
But, the pertinent question that remains unsettled is that whether according to the present situation at the global level, is it possible to have in existence a liberal democracy? Is it possible to maintain a situation where for no reason whatsoever a democratic state will be free from the shackles of preventive detention? Readers are left with this question to make their opinions about it, which may differ from the author as she vouches for liberal democracies.
David H. Bayley, The Indian Experience with Preventive Detention, 35 PACIFIC AFFAIRS 99, 99-100 (1962).
A.G. Noorani, Preventive Detention in India, 26 Econ. Political Wkly. 2608 (1991).