The constitutional sanction for preventive detention reeks of a fear of freedom

The Emergency, declared fifty years ago, is a reminder of the ease with which fundamental rights guaranteeing freedom and life could be defeated. The Supreme Court’s 1976 decision in ADM Jabalpur v Shivakant Shukla (the Habeas Corpus case) and Justice H.R. Khanna’s dissent remain etched in memory. Yes, the 44th Amendment to the Constitution in 1978 has warded off a repeat of this travesty of justice. However, it is wishful to believe that all that went wrong then will not happen again. 

This is the truth as long as Article 22 of the Constitution remains on the books. Rather than serving as a guarantee against violation of the citizens’ right against indiscriminate arrest and detention, the provision provides a constitutional sanction for arrest and detention without proof of guilt. 

Speaking of the Emergency, the draconian Maintenance of Internal Security Act 1971 (MISA) drew constitutional sanction from Article 22. The Shah Commission, which investigated the excesses of the Emergency, recorded that 1,10,806 individuals were detained by the State during the period: 34,988 of these were under MISA and the rest under the Defence of India Rules. Let’s look at the text and context in which Article 22 came to be. 

Origins of Article 22

The provision was a late addition to the Constitution. Dr. Ambedkar introduced it on behalf of the Drafting Committee on 15 September 1949, only a couple of months before the Constitution was adopted. 

Ambedkar claimed that this new article (then carrying the number ‘15-A’) was necessary to remedy a deficiency in the draft Article 15 (the current Article 21). Ambedkar was referring to the Drafting Committee’s decision to replace the phrase “without due process of law” with “procedure established by law”. He said:

I know that a large part of the House, including myself, were greatly dissatisfied with the wording of Article 15… it was felt that while this matter was being included in the Chapter dealing with Fundamental Rights, we were giving a carte blanche to Parliament to make and provide for the arrest of any person under any circumstances as Parliament may think fit. We are therefore now, by introducing article 15-A, making, if I may say so, compensating 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 15-A.

The Constituent Assembly records Clauses 1 and 2 of this new Article as being taken from the Code of Criminal Procedure. The mischief, however, was in clauses (3) and (4), which explicitly permitted laws to carry out indiscriminate arrests and detentions. 

Ambedkar’s claim that the due process principle would preserve the right to life and personal liberty would turn out to be wishful thinking. The effect that Article 22 had was to limit the full exercise of the right to life and personal liberty.

Several members contested the introduction. Thakur Das Bhargava, for one, did not mince words. He cautioned that the provision would enable the future Parliament to enact laws like the Rowlatt Act of 1918. He suggested that Ambedkar was being pressured: 

I would have rather liked that Dr. Ambedkar, instead of resisting the attempts of these people, should have resigned from his post as a protest against the pressure which is being brought upon him by the powers so that these fundamental rights may not be put in.

Mahavir Tyagi, an Indian National Congress member from the United Provinces, and Ambedkar had the following exchange: 

Tyagi: “Sir, Dr. Ambedkar will please pardon me when I express my fond wish that he and other members of the Drafting Committee had had the experience of detention in jails before they became members of the Drafting Committee.” 

Ambedkar: “I shall try hereafter to acquire that experience.” 

Tyagi: “I may assure Dr. Ambedkar that, although the British Government did not give him this privilege, the Constitution he is making with his own hands will give him that privilege in his life-time… There might come a time when these very clauses, which we are now considering, will be used freely by a government against its political opponents.”

Ultimately, the Constituent Assembly voted for inclusion of the new Article on 16 September 1949. Then, less than a month after the Constitution came into force, the Preventive Detention Act, 1950 was enacted. A challenge against its constitutionality was rejected by the Supreme Court in one of its earliest landmark judgements: A.K. Gopalan v State of Madras (19 May 1950).

Tellingly, the judges who decided Gopalan went on record to say that such laws should not exist in a democracy. Here’s Justice B.K. Mukherjea: 

Detention in such form is unknown in America. It was resorted to in England only during wartime, but no country in the world that I am aware of has made this an integral part of their Constitution as has been made in India…

Justice Mukherjea hastened to add that it was not the Court’s business to “speculate on questions of policy or to attempt to explore the reasons which led the representatives of our people to make such a drastic provision in the Constitution itself, which cannot but be regarded as a [sic] most unwholesome encroachment upon the liberties of the people.” 

The Preventive Detention Act was meant to last for one year. However, it was repeatedly extended until 31 December 1969. The Unlawful Activities (Prevention) Act came into effect in 1967, but it had not been used. There was a brief period between December 1969 and July 1971 during which India did not have an active preventive detention legislation at the Union level because the Indira Gandhi government was struggling to muster a majority in the Lok Sabha. Gandhi’s thumping electoral win in 1971 paved the way for Parliament—enabled by the Constitution—to enact MISA. 

Amendments to Article 22 

MISA was extensively deployed by the government during the Emergency to imprison its political opponents for extended lengths of time. By the Constitution (Thirty-ninth Amendment) Act, 1975, the government placed MISA in the Ninth Schedule of the Constitution to shield it from judicial review. 

When the Janata Party came into power post the Emergency, one would have thought it would rid the Constitution of Article 22, considering its leaders had only recently been subject to its excesses. Rather, there was an attempt to ‘reform’ the article through the 44th Constitution Amendment Act. 

Section 3 amended Article 22 to reduce the maximum period of detention (under a preventive detention law) before obtaining the opinion of an Advisory Board from three months to two months. It brought in changes in the composition of the Advisory Board to ensure that its constitution is recommended by the High Court Chief Justices. It deleted subclause (a) of clause (7) of Article 22 of the Constitution that provided for the Parliament carving out instances where detention could be without reference to an Advisory Board.

Far from scrapping the Article, the Janata Party had opted for only cosmetic changes. And even these were never notified by it or any successive governments.  

Process is punishment 

In his 1941 book, The Fear of Freedom, Erich Fromm highlighted a deeper psychological and political pattern: the tendency of modern societies, especially after periods of crisis, to surrender individual liberties in exchange for the illusion of security. The framers of the Constitution and political actors in independent India seem to have fallen prey to this fear.

This anxiety and deep-rooted suspicion allow preventive detention laws to take root and persist, often with little accountability. Under these laws, the state wields extraordinary power and the process itself becomes the punishment.

Five decades after the Emergency, it’s important to ask the question: isn’t it time for the deletion—lock, stock and barrel—of Article 22 from the Constitution?

Krishna Ananth is Professor of History at Sikkim University. His book Constitution of India: 75 Years of World’s Largest Democracy is soon to be published by Atlantic Publishers & Distributors, New Delhi.