THE EROSION OF A SAFEGUARD: PREVENTIVE DETENTION AND THE UNFINISHED PROMISE OF ARTICLE 21

Preventive detention occupies a peculiar place in Indian constitutional law: it is the one power by which the State may confine a person without charge, trial or conviction, and it is written not into a temporary emergency statute but into the fundamental-rights chapter of the Constitution itself. This paper argues that the constitutional safeguards surrounding that power, formidable as they appear on the face of Article 22, have failed to keep pace with the transformation of the right to personal liberty that began with Maneka Gandhi v. Union of India in 1978. The paper advances a single connected thesis: that the inadequacy of the safeguards is not a defect of their drafting but of their interpretation, and that the principal engine of their erosion is the doctrine of subjective satisfaction, which insulates the sufficiency of the detaining authority's material from judicial scrutiny. Drawing on the case law, on the comparative experience of the United Kingdom, the United States and the international human-rights instruments, and on the unenforced reforms of the Forty-fourth Amendment, the paper contends that the gap between the promise of the safeguards and their performance is real, that its cause is identifiable, and that its cure lies ready to hand in standards the Supreme Court already applies in every other field of personal liberty. The remedy proposed is not the abolition of a power the Constitution has chosen to retain, but the extension to preventive detention of the proportionality review and the fairness standard from which it has, by a kind of doctrinal exception, been withheld.