Therefore, if we are to successfully argue that it is the intellectual tradition of Motilal Nehru, C.R. Das, Gandhi, Satyamurti, Sastri and Hansa Mehta—let us call this the civil rights tradition—that should guide us in interpreting the Constitution, then there is one further link in the chain that must be included. That link is the Constituent Assembly. We have to show that underlying the text of Articles 21 and 22 was the civil rights tradition that we have outlined above, and not its restrictive counterpart. That argument depends upon a close reading of the Constituent Assembly Debates.
In doing so, we must first deal with a seemingly insurmountable argument. As members of the Constituent Assembly pointed out at the time, and as theorists and scholars have pointed out since, India is almost unique among the constitutions of the world in that it specifically authorizes a preventive detention regime.129 Not only that, the insertion of Article 22 into the Constitution was strongly resisted by multiple members of the Constituent Assembly, precisely on the grounds of individual liberty and State overreach. However, not only did they fail in their attempt to have preventive detention removed, but many of their amendments aiming to soften it were also rejected.130
The defenders of preventive detention employed a broad set of arguments, ranging from the precarious communal situation existing at the time, to an expression of faith that the new government of independent India would not seek to abuse or exploit provisions that the colonial regime had freely invoked to stifle dissent. Ultimately, preventive detention remained. Consequently, the very existence of Article 22 in the Constitution—enacted after fierce disagreement, and as a conscious choice—surely represents the triumph of the logic of the state of exception.
On the contrary, however, a close reading of the Constituent Assembly Debates suggests that Article 22 was not an authorizing provision, but a saving provision.131 To understand this, recall that the Constituent Assembly witnessed a stormy debate over whether Article 21, which guaranteed the right to life and personal liberty, should include a ‘due process’ clause on the lines of the US Constitution, i.e., in depriving a person of life or liberty, was the State required to follow due process, instead of merely ‘procedure established by law’?132 Some members argued that due process would allow the Court far-reaching powers of interference in government policy (as the US experience had shown).133 On the other hand, if due process was omitted in favour of procedure established by law, then the courts’ role would be minimal. Life and personal liberty could be infringed by Parliament simply by enacting a law.134 In the Constituent Assembly, Ambedkar observed that he saw merit in both arguments, and would leave it to the wisdom of the House to decide.135 The House decided to drop the due process clause.
Then, in order to provide a degree of constitutional protection to individuals against arbitrary arrest, Ambedkar introduced what became Article 22 of the Constitution (one of the members of the Constituent Assembly specifically referred to it as ‘compensation’,136 another said it was ‘caution’,137 and a third called it a ‘compromise’).138 Article 22(1) required that a person who was arrested had to be informed of the grounds of his arrest and to be defended by a lawyer, while Article 22(2) required that any arrested person be produced before a magistrate within twenty-four hours (essentially, habeas corpus).
The preventive detention regime followed, in Articles 22(3) to (7) (which we have discussed above). Article 22(3) began with the words ‘nothing in clauses (1) and (2) shall apply … to any person who is arrested or detained under any law providing for preventive detention’.139 Notably, when Ambedkar rose to defend this Article after a fierce six-hour debate in September 1949, he did it in these words: ‘I and my friends had been trying in some way to restore the content of due procedure in its fundamentals without using the words “due process”.’140
This historical background should make the structure of Articles 21 and 22 clear. The phrase ‘procedure established by law’ under Article 21 allowed the State to deprive an individual of her life or liberty, as long as it was done under a valid law. Articles 22(1) and (2) were framed as an exception to Article 21, and required that a person deprived of their liberty be entitled to certain procedural rights, and be produced before a judicial authority (core due process requirements). And then, the preventive detention regime was framed as an exception to the procedural safeguards under Articles 22(1) and (2). In other words, a person detained under a preventive detention law could not invoke Articles 22(1) and (2) and, for example, claim the right to be produced before a magistrate within twenty-four hours.
But that is all. Neither the drafting history nor the text of Articles 21 and 22 suggests that the preventive detention regime was meant to be a complete code, insulated from the rest of the Constitution. Also, neither suggests that a preventive detention law was immunized from challenge under Articles 14, and especially under Article 19’s guarantees of speech, assembly, association, and movement. In fact, quite the contrary: the text suggests that the preventive detention regime was meant to operate as an exception only to the procedural safeguards from arrest under Articles 22(1) and (2).141
Why then did the courts interpret, and continue to interpret, the preventive detention regime isolated from the rest of the Constitution? The answer lies in A.K. Gopalan v. State of Madras, which is widely perceived to have done two things: declared that Article 22 was a complete code in itself, and advanced the silos theory of constitutional rights. The silos theory, however, has no support in the text of the Constitution or in the Constituent Assembly Debates, and was overruled in R.C. Cooper v. Union of India.142 And, as H.M. Seervai points out, only one judge out of six in Gopalan actually held that Article 22 was a complete code.143 Indeed, the Chief Justice specifically rejected this argument,144 a point with which Justice Fazl Ali, in his now-resurrected dissenting opinion, agreed.145 He then went on to point out that ‘the article does provide for [only] some matters of procedure … there is ample latitude still left to the Parliament, and if the Parliament makes use of that latitude unreasonably, Article 19(5) may enable the Court to see whether it has transgressed the limits of reasonableness’.146
This reading of the text and structure of the Constitution, its history, and the Gopalan opinion and its aftermath leads to the following conclusion: the Constitution does not, and did not, intend to create a preventive detention regime that is insulated from fundamental rights review. It only meant the preventive detention regime to be immune from two very specific procedural safeguards (production before a magistrate and immediate disclosure of grounds) that were constitutionally guaranteed to the accused at the time of arrest.
But this tells us something further: despite the pre-Independence history of provincial Congress governments making liberal use of preventive detention laws even as their leaders criticized them in the national sessions, despite the advocacy of strong law-and-order arguments in the Constituent Assembly, and despite frequent references to the violence of Partition that was engulfing the country, the Constituent Assembly finally voted to provide for a highly circumscribed and narrowly defined preventive detention regime. Further, this was to be interpreted in light of all other fundamental rights, apart from two sub-clauses that were specifically excepted. If anything, this was a rejection of the logic of the state of exception, and a victory for the civil rights tradition. As Ambedkar himself noted, preventive detention was required only because of the ‘present circumstances in the country’.147 In A.K. Gopalan, Justice Fazl Ali recognized this fundamental insight when he observed:
I do not think that it was ever intended that Parliament could, at its will, treat the normal as the abnormal or the rule as the exception.148
The point here is a straightforward one, i.e., the concrete, specific and narrow framing of Article 22 indicated that states of exception were permitted to exist only insofar as, and to the extent that, they were expressly authorized by the Constitution, and at no other time, and no further. This is what Ambedkar meant when, responding to severe
criticism from Pandit Thakur Das Bhargava, he retorted: ‘What I am trying to do is to curtail that power (of preventive detention) and put a limitation upon it.’149 And it is in this fashion that we must understand Kannabiran’s argument that the Constitution marked a break with the colonial past, in that it substituted a permanent state of exception, that could be triggered at the will of the executive, with a regime of the rule of law, in which the exception was defined, temporary, and not intended to take over the entire legal regime.150
D. The Culture of Justification
There is a deeper argument for why this must be so. As discussed in the Prologue, the standard argument for colonial continuity is that much of the legal structure erected by the British was carried forward into independent India, including the entire preventive detention apparatus, and ordinance and emergency powers. Given that the legal structure remained the same, it is argued that the content of individual rights effectively remained unchanged.
What this argument ignores, however, is that a change in political structure must necessarily have an impact upon the nature of rights;151 that is, when the structural assumptions underlying a right are transformed, that right can only properly be understood in the context of the new legal and political structure.152 To argue that nothing changed at the moment of Independence because the legal structure was carried over ignores a fundamental point: that Independence and the framing of the Constitution marked a transformation in the existing political structure, which would necessarily impact how the existing legal structure was to be understood and interpreted.
What was this fundamental shift, beyond a mere transfer of power? Kannabiran argued that it was the transformation of the Indian people from subjects to citizens, embodied in the Preambular phrase, ‘We the People … give to ourselves this Constitution’.153 In a recent book, Ornit Shani took this argument further when she pointed out that independent India’s first general election was not merely an ‘evolutionary’ moment that was the logical culmination of the partially representative institutions that had been set up by the British, but a revolutionary moment that transformed voting and participation in governance from a privilege accorded by the rulers at their will to a right.154
At the heart of this shift from subjecthood to citizenship, marked by the coming into being of universal suffrage as a right, was the transformation from a culture of authority to a culture of justification: that is, from a regime in which the exercise of authoritarian power was at the discretion of those who wielded it to a system in which every exercise of power by those placed in the temporary position of governance must be justified to citizens.155 It was this point that Hansa Mehta stressed upon in her address on civil liberties, when she placed accountability at the heart of any democratic system.156 It was also this insight that was at the heart of Justice Thipsay’s opinion in Jyoti Chorge, when he rejected the State’s arguments to endorse the culture of authority under the UAPA by making a specific and pointed reference to democracy.
In 2017, the Supreme Court affirmed an important element of this constitutional vision when it overruled ADM Jabalpur on the point that fundamental rights were not a gift of the State, but inhered in the People who had given Themselves the Constitution.157 Visualizing rights as a gift, that can be taken away at will, is redolent of the culture of authority. The rejection of that view restores the original constitutional ideal of the culture of justification.
VII. Conclusion and Endnotes
We are now in a position to understand the flaws with the Court’s state-of-exception jurisprudence. Starting with treating preventive detention as a ‘complete code’, and emergency powers as non-justiciable, the Court has incrementally extended constitutional insulation to anti-terror laws, by extending the logic of the state of exception. In doing so, the Court has, essentially, carried forward the interpretive approach that was a staple feature of the colonial regime, ostensibly on the basis that much of the legal structure continues to remain the same. Ultimately, this justifies carving out islands marked by executive supremacy, the denial of remedies, the jurisdiction of suspicion, and the overarching justification of salus populi suprema lex, to create a permanent state of exception.
This, however, is flawed because it ignores the creation of the Constitution as a transformative moment. Textually, the Constitution repudiated the state of exception by limiting what it could serve as an exception to. Structurally, it repudiated it through a Fundamental Rights chapter that would constrain the existence of the state of exception. And philosophically, it repudiated it through a shift from a culture of authority to a culture of justification. The upshot of this is straightforward: a state of exception is to apply only to the express extent that the Constitution authorizes, and at all times it is to be subject to a regime of justification, embodied by judicial review. At all other times, the Court’s ‘normal’ civil rights tradition applies.
Jyoti Chorge vindicated this transformative constitutional vision by refusing to depart from the civil rights tradition in the teeth of the State’s invocation of the state of exception, and by pegging the interpretation of an anti-terror statute not to the state of exception, but to the Constitution. Jyoti Chorge, therefore, was faithful to the vision expressed by the civil rights spokespersons of the freedom movement and the dissident judges of the Supreme Court. But, above all, it was faithful to the transformative vision of the Constitution.
What follows? One, of course, is a case for universalizing the interpretive approach in Jyoti Chorge, and rethinking the Supreme Court’s jurisprudence on preventive detention (especially its judgements upholding ‘special laws’ such as the COFEPOSA, which extended preventive detention to cases involving ‘the conservation of foreign exchange’,158 and placed it in the Ninth Schedule, to boot!) and on emergency powers. But there is more. It is important to note that in India, the state of exception is both centralized and federated. It endures not only in central security statutes such as the UAPA and the AFSPA, but also in a host of state laws. Most prominent among these are the ‘Goonda Acts’. Originally legislated in the state of Bengal by the colonial regime in 1923, ostensibly to control petty crime (but with the underhand motive of persecuting political activity),159 the Goonda Acts now exist in nine different states.
For example, Karnataka’s Goonda Act authorizes the government to detain a person for up to one year (subject to confirmation by an advisory board within three weeks) in order to ‘prevent him from acting in any manner prejudicial to the maintenance of public order’.160 Actions prejudicial to the maintenance of public order, in turn, are defined to include situations where a goonda (or a slum-grabber or video or audio pirate) is ‘engaged or is making preparations for engaging in a set of defined activities. While some of these offences include drug peddling or human trafficking, others are pure speech offences under the IPC, such as sedition or subversive speech under S. 153A, and even copyright offences.161 The Act then goes on to replicate features of the MISA that was upheld in ADM Jabalpur, including a provision that the requirement of disclosing the grounds of detention to the detainee is overridden by the power of the detaining authority not ‘to disclose facts which it considers to be against the public interest to disclose.’162
The Goonda Acts are preventive detention statutes. However, to the extent that they permit the government to preventively detain persons whom it suspects might be making preparations for engaging in speech that could constitute an offence under the Indian Penal Code, the Information Technology Act, or copyright law,163 it is evident that they fail all standards of proximity under Article 19.164 They are contemporary exemplars of the jurisprudence espoused under the Haradhan Saha–A.K. Roy line of cases, where the Court paid lip service to Cooper’s repudiation of the silos theory of fundamental rights, but nonetheless continued to insulate the preventive detention regime from Part III and 14-19-21 scrutiny. If, however, the Cooper standard was to be applied faithfully, and the state-of-exception immunity withdrawn from the Goonda Acts (as Jyoti
Chorge withdrew it for the UAPA), there is little doubt that the Goonda Acts are at least partially unconstitutional.165
While the Goonda Acts test the extent to which the courts are prepared to let preventive detention statutes exist in an implicit Ninth Schedule, state Public Safety Acts raise constitutional questions of the second kind—the entrenchment of a permanent state of emergency. In proscribing and punishing ‘unlawful’ acts of association and organization, state Public Security Acts go significantly beyond the limits of even the UAPA. For example, the Chhattisgarh Vishesh Jan Suraksha Adhiniyam (Chhattisgarh Special Public Safety Act) of 2005 includes within the definition of unlawful activity ‘encouraging or preaching disobedience to established law and its institutions’,166 an act that was expressly held to be protected under Article 19(1)(a) in Ram Manohar Lohia. Section 8 of the Act then specifically delinks membership of unlawful organizations with ‘taking part in meetings or activities’, and makes both punishable.167
There are further provisions that, in a manner similar to the UAPA, provide for forfeiture of funds of organizations declared unlawful, and so on. What sets apart many of these state public security laws is that they exist in states that are racked by militancy, whether it is separatism in Kashmir168 or Naxalism in Chhattisgarh.169 Their continued existence, therefore, is an indicator of the incremental subordination of the Constitution, and constitutional standards, to pervasive and permanent states of exception.
The Transformative Constitution Page 34