Among the things Indians pride themselves on, tall stands the Indian Constitution. A beacon of everything that is right with the country. Not only does it carry the spirit of the nation’s freedom struggle, but it also is an amalgamation of what the founders of independent India thought were the solutions for the worries of a new India.

A dark and dogmatic flaw in this idealised document materialises in the form of Art. 22, which denies certain fundamental rights to those arrested or detained under laws of preventive detention. The concept of preventive detention is simple - a person is taken into custody if the state machinery sees in them the potential to commit a crime. After stating certain protections from arrest and detention in Article 22(1) and (2), the Constitution further states that:

Nothing in clauses (1) and (2) shall apply— (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.

Preventive detention is one of the many laws that have a deeply-rooted colonial legacy. The laws date back to the early days of the colonial era when the Bengal Regulation III of 1818 was enacted to empower the government to arrest anyone for maintenance of public order without any judicial proceedings. A century later, the British government enacted the Rowlatt Acts of 1919 that allowed confinement of a suspect without trial. Now, the very makers of the Constitution had been repeatedly arrested under these laws. So, the expectation was that such laws would be completely eradicated when independence was attained. But alas! that did not happen.

The Constituent Assembly Debates of India have long served as a leading example for dissent, debate and discussion. However, on the matter of preventive detention, all members seemed to have solemnly agreed. Alladi Krishnaswamy Ayyar, a distinguished jurist, had described preventive detention as a “necessary evil” because, in his view, there were people determined to undermine the sanctity of the Constitution, the security of the state and even individual liberty.

So, the members resorted to incorporating safeguards against its abuse. However, it was left to Parliament to prescribe the period of detention and even that limit was meaningless because a fresh detention order could easily be passed, and advisory boards had no power to evaluate it.

In February 1950, one month after the promulgation of India’s first self-governing Constitution, Parliament passed a Preventive Detention Act which provided for the arrest and detention of persons who, in the opinion of the government, “represented a threat to the social stability and economic development of the country”. The Act was piloted by Sardar Patel, who said that he had several “sleepless nights” in the process of introducing the bill. The courts were expressly forbidden to question the necessity for any order issued by the government.

Soon after in 1950, under this Act, an eminent communist political leader, A K Gopalan, was arrested. Gopalan challenged his detention by stating that his civil liberty was being hampered as he had the right to equality of law. However, the Supreme Court examined that he was detained according to the procedure established by law and rejected his argument. Although this ruling was later repealed by subsequent judgments of the Supreme Court, this initial arrest set the stage for the kind of curbing of dissent that this Act would entail as well as the passivity of the courts on the matter.

Perhaps the most famous case involved Sheikh Abdullah, former Prime Minister of the State of Jammu and Kashmir. Arrested in 1953, he was held in detention until January 1958. The Government of India released Sheikh Abdullah upon good behaviour. However, the experiment did not last long, and he was rearrested on April 30, having amply revealed in a number of public speeches and statements that his opinions about the political future of Jammu and Kashmir had not changed at all. His brief respite from detention had lasted just 96 days.

The Preventive Detention Act, 1950 expired in 1969 and was followed by the Maintenance of Internal Security Act (MISA), 1971. MISA is infamous for the controversial arrests and detentions that it facilitated. The entirety of the period of the Indian Emergency (1975-77) was further darkened by the cloud of MISA hanging over all political opponents of the ruling government. It was repealed once the Janata Party came to power after the Emergency, in 1977. When subsequently Indira Gandhi came back to power, the National Security Act, 1980 was instated. Over the years, many preventive detention laws have similarly risen and been repealed, but many have also remained and left a significant mark on the democratic process.

In 1978, the Jammu and Kashmir Public Safety Act (PSA) was passed, under which a person is taken into custody to prevent them from acting harmfully against “the security of the state or the maintenance of the public order”. Strikingly, it was introduced by the then-Chief Minister of Jammu and Kashmir, Sheikh Abdullah, in 1978 under the guise of stopping the smuggling of timber, but subsequently was used to remove political opponents. Since its usage in the late 1970’s, it is still being used today for “the security of the state”. Even after the revocation of Article 370, which ended Jammu and Kashmir’s special status, the PSA was one of the state laws which was retained under the Jammu and Kashmir Reorganization Act of 2019 - another sign of the “normalcy” in the state. Would Sheikh Abdullah have thought that 40 years later his own son Farooq Abdullah would be a victim of that very law?

There is no official count of the number of people detained in Kashmir after the government imposed a lockdown on August 5, 2019. Not just post August 5, there is no proper record of detentions under the PSA since its inception itself. It is safe to say that no official count will even reflect the true number.

In recent times, the Unlawful Activities (Prevention) Act, 1967 (UAPA), along with its numerous amendments, has been the choice weapon of the state. The insidious intentions and arbitrary nature of the Act can be seen through an example of its implementation - the Bhima-Koregaon violence on January 1, 2018. The backdrop was a conference called the Elgar Parishad. 3 million people had gathered, led by numerous Dalit (Indian ‘untouchables’) organisations in the state of Maharashtra to commemorate the 200th anniversary of the Bhima-Koregaon battle, believed by the Dalits to have been won by their ancestors to end the oppressive regime of Brahmin Peshwas (higher ‘castes’). It gave a call to “Bury the New Peshwai” of the Bharatiya Janata Party (BJP) seen by the Dalits and minorities as the revival of Brahminic rule. This did not sit right with Hindutva forces, which attacked the congregation at the obelisk at Koregaon. The police refused to act against the named culprits. Instead, they began insinuating that the violence was caused by the inflammatory speeches made in the Elgar Parishad.

In the months following the event, a number of people present at the event were arrested under the UAPA including renowned Dalit scholars and human rights advocates. It was alleged by the Pune Police that the event was organised by members of the banned Communist Party of India (Maoist), hence making these arrests necessary. The 11 accused were Sudhir Dhawale, Shoma Sen, Mahesh Raut, Rona Wilson, Surendra Gadling, P Varavara Rao, Sudha Bharadwaj, Arun Ferreira, Vernon Gonsalves, Anand Teltumbde and Gautam Navlakha. Except Teltumbde and Navlakha, the others were arrested by Pune Police in June and August 2018 in connection with the violence. They were accused of having links with the banned Communist Party of India (Maoist), and are still in prison. Navlakha and Teltumbde were presented in front of a special court in Mumbai on February 28, 2020 and were denied anticipatory bail. They were, however, given four weeks of protection from arrest to file a plea in the Supreme Court.

A barrage of criticism can be found against the UAPA for its provisions as well as its implementation. The definitions in the act are vague, for example, “questioning the territorial integrity of India is an unlawful activity” according to s. 2. Similarly, it is also an unlawful activity to cause “disaffection against India”. All these terms do not find definition in the Act. The state also reserves the power to declare any organisation as a terrorist organisation and just a membership of the same could get you imprisoned. Membership has often been proven using evidence as flimsy as copies of the Communist Manifesto to prove Naxal or Maoist ties. Although the Supreme Court has established that membership does not provide enough ground for arrest, this directive is yet to find hold in ground reality. Additionally, it is near-impossible to get bail once booked under this Act, despite the lack of concrete evidence.

The 2019 amendment to UAPA allows the State to now declare individuals as terrorists as well. The judicious use of this provision has been seen during the protests against the Citizenship Amendment Act which began in December 2019. The first arrest under the newly amended act was made in Assam. Akhil Gogoi, an activist and leader of the Krishak Mukti Sangraam Samiti (Congregation of Farmers’ Freedom Fighters), was booked by the National Investigation Agency under the UAPA for participating in the anti-CAA protests in Assam.

Voices that stand opposed to the government are a blessing in disguise. They are a rich source- identifying missteps and rectifying them. However, this idealistic relationship between the ruling elite and the opposition has never been realised. What comes next, however, is the relationship between the opposition and the people. Though not perfect, this relationship is in many ways what it truly means to be a part of a democracy. Votes do not always materialise as fulfillment of interests, and that is where the opposition must step in, to further this materialisation, on the behalf of all sections of society. Here opposition does not mean merely the one in Parliament, but voices across society, like those who gathered at Elgar Parishad and those who spoke up against the CAA.

Democracy is often tiring. Governments come and go, but the status quo remains. Is there any real way to affect such large processes as a mere individual? Firstly, it would help us to recognise that democracy is not an end, it is a process in its conception. It is meant to be an endless cycle, and all we can do is improve and make the process as effective and inclusive as possible.

The opposition is at the heart of achieving such a democracy. The practice of demonising anyone who is opposed to the ruling elite is not a new one. It began with A K Gopalan and it continues to haunt us. At this crucial moment, it is the people who must reiterate their relationship with the opposition. Not in a partisan sense, but by remaining critical of whoever is in power and by collectively protecting those who actively do so. National security should no longer be able to act as a curtain hiding undemocratic and unconstitutional laws. We should be enraged at the idea of dissent being equated with terrorism. And we should be aware that fascist policies like preventive detention slowly steal our power as the people without us noticing. Let us not wait for the day that our voices are completely silenced.