“LAW has reached its finest moments when it has freed men from the unlimited discretion of some ruler, some civil or military official, some bureaucrat. Where discretion is absolute, man has always suffered. At times it has been his property that has been invaded; at times his privacy; at times, his liberty of movement; at times, his freedom of thought; at times, his life. Absolute discretion is a ruthless master. It is more destructive of freedom than any of man’s other inventions,” US supreme court justice William O. Douglas said in 1951. This is not true of this part of the world; certainly not of India. The massive arrests in Kashmir included in their sweep not only the entire political class but also children. The draconian Public Safety Act, 1978 was used to put 14-year-old boys in jail.

The writ of habeas corpus is guaranteed to every citizen as a fundamental right. It has been reduced to habeas carcass thanks to the Indian supreme court’s refusal to provide relief to detainees in Kashmir. It is depressing how the chief justice of India, Ranjan Gogoi, and a couple of his colleagues talk of ‘the national interest’, while effectively postponing for long periods petitions for habeas corpus. On Aug 4, there was no revolt in Kashmir; not even a procession. But having imposed on the people the very next day a death sentence for Kashmir and its identity, the government of India and its stooge Governor Satyapal Malik decided to lock up people to prevent peaceful protest. This is what the government called ‘the national interest’ — a cry that the supreme court echoed.

Preventive detention was first introduced by the East India Company.

The time is come to consider the basics of the legal outrage of imprisonment without trial called ‘preventive detention’. It is now three centuries old. It was first introduced in India by the East India Company by the Bengal State Prisoners Regulation 111 of 1818 through its governor general’s vice president in council. It provided for the imposition of “personal restraint” and regular check-ups of the health “and comfort” of the detainee, suitable provision “for his support” and that of “his own wants and those of his family”. He received an “allowance”.

In 1918 came the report of the sedition committee headed by its president, justice S.A.T. Rowlatt, and comprising two English and two European judges. The law based on this report was the hated Rowlatt Act.

The committee unanimously recommended, apropos preventive detention, “...we think that … it must be subject to the observance of … principles – (i) No interference with liberty must be penal in character. Nothing in the nature of conviction can be admitted without trial in strict legal form. If in the supreme interests of the community the liberty of individuals is taken away, an asylum must be provided a different order from a jail. (ii) Any interference with liberty must be safeguarded by an inquiry which, though circumstances exclude the possibility of its following forensic forms, must be judicial in the sense that it must be fair and impartial and as adequate as it can be made.”

Lodging detainees in prison is infliction of punishment without trial. It is a violation of the right to personal liberty and is patently unconstitutional.

Chapter III of the Indian Penal Code enacted in 1860 concerns punishments. Section 52 lists them. One of them is imprisonment. But the laws authorising preventive detention routinely empower the state to order that the detainee “be detained in such place and under such conditions, including conditions as to maintenance, discipline and punishment for breaches of discipline, as the appropriate government may, by general or special order”.

The place specified is, invariably, jail. This is imprisonment without trial and a violation of the fundamental right of personal liberty (Article 21). Article 22 of India’s constitution provides for preventive detention. The detainee is entitled to be given grounds of detention that are considered by an advisory board, which can be packed with party hacks.

As early as 1950, justice Mehr Chand Mahajan of the supreme court pointed out that “preventive detention laws are repugnant to democratic constitutions and they cannot be found to exist in any of the democratic countries of the world”. In 1969, the court characterised the legislation as “a negation of the rule of law, equality and liberty”. In 1979, the court said it “viewed with disfavour detention without trial, whatever be the nature of offence. The detention of individuals without trial for any length of time, howsoever short, is wholly inconsistent with the basic ideas of our government”. The supreme court stopped using such language since.

The court has said repeatedly that preventive detention is not penal but preventive. Why lodge the detainee in jail, then? In Northern Ireland, it was imposed on Aug 9, 1971 but was lifted on Dec 5, 1975. Conditions were far, far worse there.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, November 9th, 2019