People in India seem to have grown accustomed to a system miserly with bail and over-eager with incarceration. Yet the Supreme Court has repeatedly warned against the unconstitutional deprivation of personal liberty on these counts. Recently, the Supreme Court quashed the preventive detention order of an individual from Telangana, saying that a single sexual and extortion offence could not invoke the stringent law for preventive detention. The court emphasised the application of mind in such cases since the order of preventive detention was subjective; an advisory board should consider the material and relevant facts to assess the order’s legality. Extra care had to be applied as the detention was for prevention and not for a crime committed. What had to be assessed was the possible future threat to public order, as different from law and order. It is an irony of the prevalent system that the Supreme Court has often to define basic legal concepts for the appropriate application of the law. The Constitution allows preventive detention when a person threatens public order: that is, he can disrupt the even tenor of the life of a community, as the court defined it once again. It had laid down ten tests of the legality of preventive detention orders in September 2023. It is amazing that the court must repeat itself.
Or perhaps not. The Supreme Court is upholding the Constitution and the law in a society that loves shutting people up, which has made possible the constant arrests and incarceration that are a feature of the present political regime. The Supreme Court said that the inability of the state police to tackle a law and order situation should not be an excuse to invoke the jurisdiction of preventive detention. But meaningful excuses are unnecessary in the abuse of power. Well-known scholars, Amartya Sen among them, have condemned the prolonged imprisonment of writers, journalists and activists without trial and often without charge-sheets. They referred, in particular, to the imprisoned staff of a news channel and those held for years in the Elgaar Parishad and the New Delhi violence cases. In deploring the decline of elementary freedoms, they said that criticising the dominant regime was enough for imprisonment. This decline can be reversed only if the people fight it; upholding freedoms is not the courts’ job alone.