The History of Preventive Detention in India

Abstract

Part II discusses preventive detention in India, beginning with an overview of its historical background in this chapter. Before examining how India came to constitutionally protect preventive detention, the chapter tackles the question of why India's detention regimes should be compared to those of the United States and England given that India cannot be characterized as a full liberal democracy. This discussion highlights the fact that it was largely its risk aversion at the time of Independence that deprived India of this characterization – a perfect example of where risk aversion can lead a true democracy. The chapter then turns to the decision India's newly independent leadership made to constitutionally entrench preventive detention and to avoid expressly guaranteeing “due process” beyond specific, enumerated rights. The constitutional debates illustrate that at independence India was a risk society that saw detention as an essential means for protecting society. The chapter concludes with an examination of India's initial preventive detention legislation to highlight the fact that from the start it used the rationale of a state of exception to justify limiting the right to liberty – a rationale it shares with England and the United States. Comparing apples and oranges? Before entering into the analysis of India's decision to constitutionally protect preventive detention, this chapter examines why India should be used as any kind of example – good or bad – for Western liberal democratic countries. India is regularly touted as the “world's largest democracy,” but its constitutional rights protections fall short of what most liberal democracies offer. India's Constituent Assembly, which drafted the Constitution, copied fundamental rights from liberal democratic constitutions, but altered them to fit what it saw as the Indian context. These alterations vastly limited many traditional fundamental rights to favour security over liberty, the most glaring of which are the restrictions on liberty rights to allow for preventive detention during peace time and the refusal to guarantee due process rights for all deprivations of liberty, as described below. These alterations play a key role in characterizing India's democracy as something less than liberal. Whether India falls short of liberal democratic status is in no way uncontested; however, this book takes the approach that the limitations on liberty and due process rights in favour of security means that liberty is not at the foundation of its democracy.