While the laws against terrorism, passed after the horrific Mumbai terrorist attack, have been generally welcomed, they have also attracted one criticism. The period for which a terrorism suspect can be kept in custody without being charged has been raised to 180 days. Many in this country consider it excessive. So do foreign countries, including those that had enacted even tougher anti-terror measures after 9/11. There is, however, an important difference between the two situations. Other democracies have embarked on detention without trial for the first time, and have therefore limited the duration for which it can last. In India, preventive detention has always been there, right from the earliest days of the British Raj. Apart from public safety acts in every province, the Bengal Regulating Act, 1818, was often used for this purpose. World War II brought in the draconian Defence of India Rules.

Old British laws were applicable even after Independence. During the framing of the Constitution there were vigorous debates over the issue, however, the liberals and the leftists argued passionately that the very concept of detention without trial was repugnant to a democracy. But the majority view of the political class — articulated by Vallabhbhai Patel and silently shared by Jawaharlal Nehru — was that in Indian conditions (the Telengana revolt was in full blast then) preventive detention was “an unfortunate necessity” if the country was to be saved from “disruption, subversion and destruction”, in Patel’s words. This view prevailed. Under article 22 of the Constitution, preventive detention was made permissible. But this could not be the end of the matter. Immediately after the commencement of the Constitution, Sardar Patel, as home minister, presented to Parliament the first Preventive Detention Bill. He claimed that he had spent sleepless nights about what he was going to do, but there was no alternative to passing the Bill into an Act before the weekend. Otherwise, some “dangerous communists” would have been let off by the Calcutta High Court on Monday.

... contd.