INTRODUCTION
Life, liberty, equality, and dignity are fundamental rights of human beings. Among them, liberty is a primordial right essential for maintaining order in society, and personal liberty is paramount to human dignity and happiness. It evolves at the international level, is incorporated by the legislature, and is enforced by the judiciary at the domestic level. However, in enforcing personal liberty under preventive detention laws, there is a gap in domestic laws relating to personal liberty. Hence, the judiciary relies on human rights instruments to uphold and enforce personal liberty in India.
“Liberty is itself the gift of the law and may, by law, be forfeited or abridged.”[1]. India, the world’s largest democracy, guarantees personal liberty under Article 21 and provides for preventive detention under Article 22 of the Constitution. No civilized country has granted preventive detention as an ordinary legislative power during peacetime. However, preventive detention laws authorize the detention of individuals without trial, justified by suspicion or a reasonable probability of the person committing an offense. Preventive detention is a serious invasion of the inviolable right to personal liberty, recognized worldwide. Such laws were vehemently opposed by freedom fighters before independence. Since independence, the Parliament of India has enacted several preventive detention laws from time to time.
India is the only democratic country in the world that has incorporated preventive detention laws under Article 22 of the Constitution as part of fundamental rights. However, preventive detention is not a new concept. It already existed, as seen in the detention of freedom fighters under the Rowlatt Act of 1919 and during the Quit India Movement of 1942. These instances exemplify the use of preventive detention.
In India, utmost importance is given to an individual’s right to life and personal liberty. Since personal liberty is paramount to human dignity and happiness, the Constitution of India safeguards this right. In matters relating to preventive detention, where there is deprivation of liberty without trial, subsequent safeguards are provided under Article 22 of the Constitution.
Nowadays, international human rights are an emerging area of jurisprudence. These rights are implemented through multilateral treaties such as the Universal Declaration of Human Rights (hereinafter referred to as UDHR)[2] and the International Covenant on Civil and Political Rights (hereinafter referred to as ICCPR)[3], among others, which are recognized by most countries worldwide. There is a universal consensus on evolving fundamental human rights under international law. These foundational human rights documents are also supported by both international and municipal laws. Section 2(1)(d) of The Protection of Human Rights Act, 1993 defines human rights as “the rights relating to life, liberty, equality, and dignity of the individual, guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.”
Most constitutions of the world, including India’s, have enshrined such provisions. As a result, India now places greater importance on the observance of human rights than before. The rationale behind this is that preventive detention creates circumstances under which personal liberty can be deprived. Therefore, everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention, and all persons deprived of their liberty shall be treated with humanity and respect for the inherent dignity of the human person.
[1]A.D.M Jabalpur v. Shukla, AIR 1976 SC 1206. (Justice A.N.Ray)
[2] Article 9 of the UDHR of 1948 states that “No one shall be subjected to arbitrary arrest, detention or exile” and Article 12 of the same states that “No one shall be subjected to arbitrary interference with his privacy, family home or correspondence, or to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks”.
[3]Articles 7,9 and10 of the ICCPR respectively states that, “No one shall be subjected to torture or be cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation”.