The judiciary in India has treated the Preventive Detention system as a complete code in itself and the constitutional provisions for emergency regime were non-justiciable as held in the infamous case of ADM Jabalpur. Lately, the Courts have extended this state of exception to anti-terror statutes too. The existence of these three systems continue in isolation from the Indian Constitution and its values. By retaining the validity of such regimes and statutes, the Courts have created a separate territory of jurisprudence, which is primarily marked by executive supremacy and denial of remedies. The pervasive justification of salus populi suprema lex may lead to the creation of a permanent state of exception.
This reasoning by the judiciary seems flawed, as it negates the transformative character given to the Constitution by its makers. The judgement given by Bombay High Court in Jyoti Chorge v. State of Maharashtra vindicates the transformative nature of the Indian Constitution by holding onto its liberty-protecting civil rights tradition of the judiciary. It refuses to bow down in front of the executive by the mere incantation of a state of exception. The judgement puts the Constitution at the forefront, while interpreting the anti-terror statue.
