Of Iron Chains and Silent Courts: India’s Enduring Embrace of Preventive Detention 

Seventy-five years after independence, India’s continued and expanding reliance on preventive detention laws like the National Security Act (NSA) represents a profound betrayal of its transformative constitutional ethos, creating a stark paradox where the very document designed to guarantee fundamental liberties like free speech and personal liberty also constitutionally sanctions their suspension.

This colonial-era tool, epitomized by the recent detention of activist Sonam Wangchuk without disclosed grounds, operates as a parallel legal regime that bypasses due process, effectively creating a permanent state of exception where the judiciary’s historical deference to executive “subjective satisfaction” has normalized the incarceration of individuals without trial, thereby chilling dissent and eroding the core democratic principle that the state must prove guilt, not merely speculate on future threat.

Of Iron Chains and Silent Courts: India’s Enduring Embrace of Preventive Detention 

Seventy-five years after throwing off the yoke of colonial rule, India finds itself grappling with a paradox woven into the very fabric of its democracy. The nation’s founding document, a beacon of transformative hope, simultaneously shelters a legal specter from the British Raj: preventive detention.

This power, which allows the state to imprison individuals without trial on the suspicion of future wrongdoing, is echoing with a renewed and disturbing resonance today. The recent detention of Ladakhi climate activist Sonam Wangchuk under the National Security Act (NSA) is not an anomaly but the latest peal in a long, unsettling chorus, forcing a national reckoning with a constitutional silence that has lasted for decades. 

The Wangchuk Case: A Contemporary Blueprint of a Colonial Tool 

On September 26, 2025, Sonam Wangchuk, an engineer-turned-teacher celebrated for his educational innovations and environmental activism, was detained by the Ladakh police. His crime, as per the state, was being the leading face of a civil society movement demanding statehood and ecological protection for Ladakh. The detention followed violence in Leh, though Wangchuk was on a hunger strike at the time. Crucially, the state withheld the grounds for his detention, invoking the NSA’s notorious Section 8(2), which permits such secrecy for up to fifteen days. 

His wife, Gitanjali Angmo, was forced to approach the Supreme Court not to challenge the merits of the case, but simply to ask a fundamental question: Where is my husband, and why is he being held? The state’s response—that it had no obligation to disclose the grounds—laid bare the raw power at its disposal. This scenario is a microcosm of a larger pattern. It reveals how preventive detention operates in a legal vacuum, severing the individual from the very rights that define a constitutional democracy: the right to know the accusation, to seek bail, and to a speedy, public trial. 

The Constitutional Paradox: Liberty and Its Pre-emptive Annulment 

The Indian Constitution’s framers, haunted by the memory of colonial repression, crafted a magnificent chapter on Fundamental Rights. Articles 19 (free speech), 21 (life and liberty), and 22 (protection against arbitrary arrest) were intended as a bulwark against state overreach. Yet, in a compromise born of a nascent nation’s insecurities, they also embedded the machinery for their suspension. 

Article 22, which meticulously outlines rights for arrested persons, contains clauses (3) through (7) that explicitly carve out an exception for preventive detention. This created what legal scholar Upendra Baxi astutely identified as a “dual regime”: one of due process for ordinary crimes, and another of executive discretion for “preventive” purposes. The state, in essence, was handed a constitutional sledgehammer to crack down on perceived threats, a tool that bypasses the entire criminal justice system. 

The judiciary’s journey in navigating this paradox has been one of profound inconsistency. In the landmark case of A.K. Gopalan v. State of Madras (1950), the Supreme Court initially took a “silos” approach, ruling that if a detention law complied with Article 22, it was immune from challenge under other fundamental rights like Article 19 or 21. This provided a safe harbor for the preventive detention regime. 

This view was dramatically overturned in Maneka Gandhi v. Union of India (1978), where the Court declared that any law depriving a person of life or liberty must be “just, fair, and reasonable.” It introduced a “golden triangle” of interlinked rights under Articles 14, 19, and 21. In theory, this should have subjected preventive detention to rigorous scrutiny. Furthermore, the Justice K.S. Puttaswamy (2019) judgment on privacy solidified the “proportionality standard”—requiring the state to prove that its infringing action is necessary, least restrictive, and proportionate to the aim achieved. 

Yet, in practice, when faced with preventive detention, the judiciary has often retreated into a posture of extreme deference. The ghost of **ADM Jabalpur v. Shiv Kant Shukla (1976)**—the infamous Emergency-era judgment that suspended the right to habeas corpus—still looms large. Courts frequently treat the executive’s “subjective satisfaction” in issuing a detention order as sacrosanct, refusing to examine the sufficiency of evidence. This transforms the judiciary from a guardian of liberty into what critics call an “executive court,” rubber-stamping the state’s most coercive actions. 

The Anatomy of a Draconian Regime: How Silence Becomes a Prison 

The operational reality of laws like the NSA, UAPA, and the Jammu & Kashmir Public Safety Act (PSA) is where the theoretical becomes terrifyingly personal. For a person detained under these laws: 

• The Right to Know is Suspended: The grounds of arrest can be withheld, as in Wangchuk’s case, leaving the detainee and their family in a Kafkaesque limbo. 

• Bail is a Near Impossibility: The legal burden shifts onto the accused. Under the UAPA, for instance, bail is virtually denied unless the court can say there are no reasonable grounds to believe the accusations are true—a nearly insurmountable hurdle. 

• Incarceration Precedes Proof: Pre-charge sheet detention can stretch to 180 days under UAPA and a staggering 12 months under the NSA. Trials themselves can take years, meaning individuals can spend a decade in prison only to be ultimately acquitted. The punishment is the process itself. 

• The Reversal of Onus: The principle of “innocent until proven guilty” is inverted. The accused must prove the absence of mens rea (criminal intent), a profound departure from established criminal jurisprudence. 

This legal architecture creates a “permanent state of exception,” where the extraordinary powers meant for emergencies become a normalized tool of governance. The state no longer needs to prove you committed a crime; it need only suggest you might. This chills dissent, curtails free speech, and stifles the very civic discourse that a vibrant democracy requires. 

Transformative Constitutionalism Betrayed 

The framing of the Indian Constitution was a revolutionary act of transformative constitutionalism. It sought not just to govern, but to fundamentally reshape a hierarchical society into one based on individual dignity, equality, and liberty. Part III on Fundamental Rights was the engine of this transformation, placing the autonomous, self-determining individual at the heart of the new republic. 

The continued and expanding use of preventive detention represents a deep betrayal of this vision. When a citizen can be imprisoned for their political opinions, their activism, or simply for being a “threat” in the eyes of the executive, the promise of autonomy evaporates. The state, through its silence and its actions, communicates that the collective, as it defines it, outweighs the liberty of the individual. 

This is not merely a legal failure but a democratic one. As the author Swarati Sabhapandit’s analysis implies, when the courts fall silent amidst the “clash of arms”—be it actual conflict or the state’s war on dissent—they abdicate their role as the ultimate guardians of liberty. The “pillars of freedom” that Lord Atkin spoke of in his celebrated dissent begin to crumble. 

The Path Forward: Breaking the Silence 

The solution does not lie in timid judicial corrections but in a fundamental re-evaluation. Several steps are critical: 

• Judicial Re-awakening: The Supreme Court must consistently apply the “proportionality standard” from the Puttaswamy case to preventive detention. It must actively scrutinize the “necessity” of detention, asking if ordinary laws were insufficient to address the threat. 

• Legislative Courage: Parliament must demonstrate the political will to amend or repeal the most draconian provisions of laws like the NSA and UAPA, restoring the balance between state security and individual liberty. 

• Public Vigilance: The case of Sonam Wangchuk has sparked national outrage. This public consciousness must be sustained. A democracy’s health is measured not by the power of its state but by the freedom of its citizens to question that power without fear. 

Seventy-five years on, India stands at a crossroads. It can continue down the path of silent acquiescence, allowing the echoes of a colonial-era tool to grow louder, eventually drowning out the constitutional promises of liberty. Or, it can find its voice. It can choose to loudly and unequivocally affirm that in India, amidst any storm, the laws will not be silent. They will speak the language of freedom, today and always. The silence must end, lest the echo becomes our nation’s only refrain.