There can be no doubt that personal liberty is a precious right. So did the founding fathers believe at any rate because, while their first object was to give unto the people a Constitution whereby a Government was established, their second object, equally important, was to protect the people against the Government.

That is why, while conferring extensive powers on the Governments like the power to declare an emergency, the power to suspend the enforcement of fundamental rights and the power to issue ordinances, they assured to the people a Bill of Rights by Part III of the Constitution, protecting against executive and legislative despotism those human rights which they regarded as fundamental.

The imperative necessity to protect those rights is a lesson taught by all history and all human experience. Our Constitution makers had lived through bitter years and seen an alien government trample upon human rights which the country had fought hard to preserve. They believed like Jefferson that “an elective despotism was not the government we fought for.” And therefore, while arming the government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that those powers were not abused to mutilate the liberties of the people.

But, the liberty of the individual has to be subordinated, within reasonable bounds, to the good of the people. Therefore, acting in public interest, the Constituent Assembly made provisions in Entry 9 of List I and Entry 3 of List III, authorising the Parliament and the State legislatures by Article 246 to pass laws of preventive detention. These entries read thus:

Entry 9, List I:

“Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India ‘persons subjected to such detention.”

Entry 3, List III:

“Preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention.”

The practical need and reality of the laws of preventive detention find concrete recognition in the provisions of Article 22 of the Constitution. Laws providing for preventive detention are expressly dealt with by that article and their scope appropriately defined.

“The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted.

If what has been done is legislation within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited………., it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions” (see The Queen v. Burah)

In The Queen v. Burah the Privy Council upheld the delegated power to bring a law into force in a district and to apply to it, the whole or part of the present or future laws which were in force in other districts.

The legislative power in respect of preventive detention is expressly limited to the specific purpose mentioned in Entry 9, List I and Entry 3, List III. It is evident that the power of preventive detention was conferred by the Constitution in order to ensure that the security and safety of the country and the welfare of its people are not put in peril.

So long as a law of preventive detention operates within the general scope of the affirmative words used in the respective entries of the union and concurrent lists which give that power and so long as it does not violate any condition or restriction placed upon that power by the Constitution, the Court cannot invalidate that law on the specious ground that it is calculated to interfere with the liberties of the people. Khanna J., in his judgment in the Habeas Corpus case has dwelt upon the need for preventive detention in public Interest.

Procedural safeguards are the handmaids of equal justice

The fact that England and America do not resort to preventive detention in normal times was known to our Constituent Assembly and yet it chose to provide for it, sanctioning its use for specified purposes. The attitude of two other well-known democracies to preventive detention as a means of regulating the lives and liberties of the people was undoubtedly relevant to the framing of our Constitution. The power to judge the fairness and justness of procedure established by a law for the purposes of Article 21 is one thing: that power can be spelt out from the language of that article.

Procedural safeguards are the handmaids of equal justice and since, the power of the government is colossal as compared with the power of an individual, the freedom of the individual can be safe only if he has a guarantee that he will be treated fairly. The power to decide upon the justness of the law itself is quite another thing: that power springs from a ‘due process’ pro vision such as is to be found in the 5th and 14th Amendments of the American Constitution by which no person can be deprived of life, liberty or property “without due process of law”.

Amendment to Article 21

In so far as our Constitution is concerned, an amendment was moved by Pandit Thakur Dass Bhargava to draft Article 15, which corresponds to Article 21 of the Constitution, for substituting the words “without due process of law” for the words “except according to procedure established by law”. Many members spoke on that amendment on December 6, 1948, amongst whom were Shri K.M. Munshi, who was in favour of the amendment, and Sir Alladi Krishnaswamy Ayyar who, while explaining the view of the Drafting Committee, said that he was “still open to conviction”. The discussion of the amendment was resumed by the Assembly on December 13, 1948 when, Dr. Ambedkar, who too had an open mind on the vexed question of ‘due process’, said:

“…I must confess that I am somewhat in a difficult position with regard to article 15 and the amendment moved by my friend Pandit Bhargava for the deletion of the words “procedure according to law” and the substitution of the words “due process”.

“The question of “due process” raises, in my judgment, the question of the relationship between the legislature and the judiciary. in a federal constitution, it is always open to the judiciary to decide whether any particular law passed by the legislature is ultra vires or intra vires in reference to the powers of legislation which are granted by the Constitution to the particular legislature…. The ‘due process’ clause, in my judgment, would give the judiciary the power to question the law made by, the legislature on another ground. That ground would be whether that law is in keeping with certain fundamental principles relating to the rights of the individual.

In other words, the judiciary would be endowed with the authority to question the law not merely on the ground whether it was in excess of the authority of the legislature, but also on the ground whether the law was good law, apart from the question of the powers of the legislature making the law. The question now raised by the introduction of the phrase ‘due process’ is whether the judiciary should be given the additional power to question the laws made by the State on the ground that they violate certain fundamental principles.

“There are dangers on both sides. For myself I cannot altogether omit the possibility of a Legislature packed by party men making laws which may abrogate or violate what we regard as certain fundamental principles affecting the life and liberty of an individual. At the same time, I do not see how five or six gentlemen sitting in the Federal or Supreme Court examining laws made by the Legislature and by dint of their own individual conscience or their bias or their prejudices be trusted to determine which law is good and which law is bad. It is a rather a case where a man has to sail between Charybdis and Seylla and I therefore would not say anything. I would leave it to the House to decide in any way it likes.” (See Constituent Assembly Debates Vol. VII, pp. 999-1001)

The amendment was then put to vote and was negatived.

In view of this background and in view of the fact that the Constitution, as originally conceived and enacted, recognizes preventive detention as a permissible means of abridging the liberties of the people, though subject to the limitations imposed by Part III, the Indian supreme court in ‘A.K. Roy v. Union of India, (1982)’ rejected the contention that preventive detention is basically impermissible under the Indian Constitution.