The Indian Constitution through the Lens of Power – VI: Rights

—Gautam Bhatia, Advocate, New Delhi, and independent legal scholar

[Editor’s Note: This is one of our ICONnect columns. For more on our 2023 columnists, see here.]

The previous five posts in this series have examined the Indian Constitution as a terrain of contestation around five axes of power: federalism, legislative/executive relations, pluralism, guarantor institutions, and the People. In this concluding post, I will examine the sixth – and final – axis of this series: rights.

Part III of the Indian Constitution consists of a bill of rights, enforceable by courts vested with the power to strike down laws in the exercise of judicial review. While the fundamental rights chapter covers extensive terrain – from rights to non-discrimination and equality, to free speech, to cultural rights – for the purposes of this post, I will consider the cluster of rights that deals most directly with the relationship between individuals and State power: that is, rights that limit (or, in the Indian case, enable) the exercise of physical coercion by the State. In the Indian Constitution, these rights are grouped together within Articles 20 – 22 of the Constitution. Article 20 guarantees the classic criminal procedure rights against retrospectivity, double jeopardy, and self-incrimination.[1] Article 21 guarantees the right to life and liberty, subject to procedure established by law (interpreted by the Supreme Court to mean “due process).[2] And Article 22 – rare among democratic Constitutions – allows the State to enact laws for “preventive” – or administrative – detention.[3]

An examination of the Supreme Court’s jurisprudence reveals a centralising drift in a manner similar to that discussed in the previous posts: in this context, one that expands State power and whittles down the rights of the individual. Consider, first, the issue of administrative – or preventive – detention. In one of the earliest cases to come before it (1950), the Supreme Court rejected the argument that as preventive detention violated a host of other constitutional rights, it would have to be run the gauntlet of those rights as well.[4] The Supreme Court justified its holding by advancing a theory that fundamental rights were to be considered in “silos.” Twenty-five years later, in one of its most celebrated judgments, the Supreme Court overruled the “silos” approach, and held that fundamental rights had to be read together, and as an integrated whole – except for the provisions that allowed preventive detention.[5] In doing so, therefore, the Supreme Court created an “authoritarian enclave” within the Constitution, where preventive detention could not be challenged on any grounds other than the narrow grounds specifically provided for under Article 22. In practice, this means – for example – that the test of proportionality does not apply to preventive detention, and that the executive wields preventive detention as a tool to incarcerate individuals that it believes would be too “difficult” to prosecute through the normal criminal justice system.[6] Thus, as scholars have noted, while preventive detention is meant to be used in “exceptional” circumstances, and is treated by the courts as an “exceptional” provision when it comes to judicial review, its actual use is that of a substitute for the regular criminal justice system (but without the safeguards that are provided in ordinary criminal laws).

The history of the right against self-incrimination evinces a similar trajectory. Article 20(3) makes the right available to an “accused” individual. The scope of the right – and whom it protects – thus depends on the legal definition of the word “accused.” In a series of cases, the Court has steadily excluded entire groups of people – who are otherwise subject to the coercive power of the State – from being categorised as “accused.” It has done so by reasoning that certain “special laws” – that are enacted to deal with socio-economic offences, such as smuggling, or money-laundering – are triggered not by the formal registration of a police report that names an individual as an “accused”, but by an “enquiry”; and that the people conducting the enquiry are not designated “police officers.”[7] On the basis of such taxonomic distinctions, the Court has, therefore, held that individuals who are in the physical custody of the State – and therefore, subject to its coercive power – nonetheless do not have the right against self-incrimination if their investigation is taking place pursuant to one of these “special laws.”[8]

These are two examples among many of how the Indian Supreme Court has interpreted textual silences or ambiguities in Part III of the Constitution in a manner that shifts power away from the individual, and towards the State (especially the executive branch of the State). In essence, this has resulted in the “levelling down” of constitutional safeguards to comply with existing police practice, rather than requiring the latter to comply with a rights-centric interpretation of the Constitution.

Conclusion

In this six-part series, I have examined the Indian Constitution from the perspective of various axes of power. Admittedly, these axes are not the only – or indeed, a complete – lens from which to examine the Indian Constitution. This series has not considered, for example, the organisation of power around the political economy, and the ownership of material resources in society (because the Constitution is almost entirely silent about this, even though that silence itself speaks eloquently to how the framers viewed this question). It has also not considered the organisation of power along ascriptive fault-lines, such as caste or gender. Those are enquiries for another day.

With that said, there are two broad conclusions that arise out of a study of the axes in this series. The first is that the Constitution is a terrain of contestation, where different – and often conflicting – visions of power compete for primacy. And the second is that notwithstanding this, the seven-decade career of the Constitution has been marked by a centralising drift: i.e., greater concentration of power in the central executive, at the cost of other institutions and entities. While this has often been the result of judicial interpretation, we also must not lose sight of the fact that the constitutional text, structure, and its silences have facilitated – if not encouraged – a centralising drift. This centralising drift, taken to its extreme, can sanction what is, in effect, a constitutional autocracy: that is, extreme executive power that, nonetheless, formally complies with the Constitution and its interpretation. Whether that drift might, someday, be reversible, is a question for the future to answer.

Suggested citation: Gautam Bhatia, The Indian Constitution through the Lens of Power – VI: Rights, Int’l J. Const. L. Blog, Jan. 21, 2024, at: http://www.iconnectblog.com/the-indian-constitution-through-the-lens-of-power-vi-rights/

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[1] Article 20, Constitution of India.

[2] Article 21, Constitution of India.

[3] Article 22, Constitution of India.

[4] A.K. Gopalan vs The State of Madras, 1950 SCR 88. 

[5] Maneka Gandhi vs Union of India, (1978) 1 SCC 248; Abhinav Sekhri, ‘Calling Time on Preventive Detention’ 9 Indian Journal of Constitutional Law 174.

[6] Hallie Ludsin, Preventive Detention and the Democratic State (CUP 2016

[7] Raja Narayanlal Bansilal vs Maneck Phiroz Mistry, 1961 SCR (1) 417; Romesh Chandra Mehta vs State of West Bengal, AIR 1970 SC 940; Abhinav Sekhri, “Whither the Right Against Self-Incrimination”, The Proof of Guilt (26 February 2016), < https://theproofofguilt.blogspot.com/2016/02/wither-right-against-self-incrimination.html>.

[8] Abhinav Sekhri, “Detention, Deepak Mahajan, and Self-Incrimination,” The Proof of Guilt (3 March 2016), available at <https://theproofofguilt.blogspot.com/2016/03/aprevious-version-of-this-post-appeared.html>.