Ed Note: As part of our New Scholarship Section, we have been inviting discussants to respond to specific articles. This is part of a series of posts discussing the public law themed research articles featured in Volume 9 of the Indian Journal of Constitutional Law. You can access all the posts in this discussion here . In this piece, our reporter Chitranksha Kumari introduces the arguments Abhinav Sekhri makes in his research article titled “Article 22 – Calling Time on Preventive Detention”.
While the Indian Constitution contains various provisions ensuring certain fundamental rights to individuals, it also allows curtailment of personal liberty by the way of laws on preventive detention. And although over years the deployment of preventive detention laws has been questioned and criticized at several instances, the constitutional scheme regulating these laws itself has not been considered much problematic. This essay questions the need for preventive detention in the Constitution and endeavors to demonstrate how these provisions allow unrestricted power to the state to arrest and detain individuals without proper trial and is least protective of personal liberty. It also seeks to initiate a discussion over threat to personal liberty by the exercise of such powers by the State.
The Indian Constitution under Entry 9 in List I of the Seventh Schedule empowers the Central Legislature to make laws on preventive detention on the grounds of defence, foreign affairs, or the security of India, and persons subjected to such detention. At the same time, Entry 3 of the Concurrent List also allows State and Central Legislatures to lay down laws on preventive detention for the security of a State, maintenance of public order, maintenance of essential supplies and services, and persons subjected to such detention. However, these powers of the Centre and the States are governed by fundamental rights secured under Article 22 of the Indian Constitution which specifically deals with arrest and detention.
As Article 22(3) regulates any legislations on preventive detention, it permits arrest and detention without a right to counsel, right to get informed of the grounds for arrest, and does not necessitate producing such a detained person before a magistrate within 24 hours of arrest. Sub-section 4 of the Article also does not allow detention for more than 3 months unless it is sanctioned after an inquiry by an Advisory Board. Similarly, other sub-provisions of the Article state that the Central Legislature may prescribe the procedure to be followed by an Advisory Board and can pass laws allowing detention for more than 3 months without an opinion from an Advisory Board. While these sub-provisions permit the Parliament to prescribe the maximum time period for detention, it also requires the communication of grounds of detention and opportunity of making representation at the earliest instance. It also provides for non-disclosure of facts to the detained person if the same is considered against public interest.
At present, the Central laws on preventive detention include the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974, The National Security Act of 1980, Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act 1980, and the 1988 Act of Prevention of Illicit Traffic in Narcotics Drugs and Psychotropic Substances. Likewise, there are various statutes on preventive detention that have been passed by different State legislatures over time. While it is difficult to determine the exact figure, in 2016, there have been around 8000 people who have been subjected to preventive detention.
The Myth of Rule of Law
While exposing the myth of rule of law, the essay uses the example of Nassar Hussain’s The Jurisprudence of Emergency: Colonialism and the Rule of Law, where the author demonstrates how rule of law creates a system where executive discretion is disguised with superficial legalities and procedures. Similarly in Radhika Singha’s Punished by Surveillance: Policing “Dangerousness” in Colonial India, the author traces the evolution of the Criminal Procedure Code showcasing the executive’s reluctance in getting subjected to judicial review, and only concurring to laws where the such powers of the judiciary were limited. Since Independence, the scheme of Criminal Procedure on prevention of breach of peace, which was intended to ensure liberty and reform individual-state relations, has mostly remained the way it was during colonial period.
The façade of rule of law in the context of preventive detention can be analyzed by looking into two aspects i.e., problems at the time of formation of the Constitution and the subsequent judicial approach to preserve the text of the Constitution. The placement of a clause like Article 22 that allows for restricting personal liberty through prevent detention with Fundamental Rights is in itself baffling until we comprehend the Constituent Assembly Debates.
Complex Founding History
The initial drafting exercises excluded various clauses that guaranteed civil liberties to individuals, yet the replacement of ‘due process of law’ with ‘procedure established by law’ for taking away personal liberty was considered to be the one that raised concerns for many. This measure was taken because of the fear that in future the judiciary could use such a provision to hinder Parliament in implementing critical legislation for social reforms. Thus, Dr. B.R. Ambedkar introduced Draft Article 15-A to deal with the exclusion of ‘due process of law’. This draft was later included in the Constitution after a few modifications as Article 22 under Chapter III as Ambedkar believed it to be a necessary measure considering the then circumstances of the country. He argued that the article limited the use of preventive detention laws and would act as a safeguard for those who are subjected to such a detention. In the late 1940s, almost all provinces had been using preventive detention laws for over three years, this gave rise to the need for Article 22 as the ‘due process’ clause could not be used to keep a check on legislative powers. Thus, it was meant to improve the legislative practices permitting preventive detention. This proposal of the Draft Article received heavy criticism and was referred as a cloak for denying individual liberty.
Reading against the Grain
These Constituent Assembly Debates depict the dilemma of the members that had forced them to accept the constitutional regime that legalized preventive detention. From this point of view, Article 22 intends to serve protection of personal liberty and justifies laying down a legal regime to safeguard preventive detention laws under Fundamental Rights. However, it raises the question that if the objective of the Article was restricting the use of preventive detention laws, why has it not been able to fulfil its aim? Since, instead of gradual limitation of such powers, India has only witnessed the expansion and normalization of preventive detention. Upon receiving criticism from the members of the Assembly over Draft Article 15-A, Ambedkar argued that they had themselves, without any debate, allowed future Legislatives the exercise of preventive detention powers in the first place.
In 1950, the Provisional Parliament passed restrictive bail provisions through an amendment in the Essential Supplies Act of 1946 which reversed the presumption of innocence. Once considered as rare, such restrictions have successively become more common in repressive laws. The article then points out the issues with the Preventive Detention Act, 1950 (PDA), which includes a broad scope of power to exercise preventive detention, continued allowance to commissioners of police instead of only senior officials to use the power, and even fewer rights to detained persons than those given by existing provincial laws in India. Importantly, it reduced the legal standard for review of regulating executive powers by excluding the word “reasonable” from its provisions. This standard was even less rigorous than the prevailing colonial laws and further limited judicial review for not only the PDA but also subsequent Acts. Thus, these legislative strategies imply that the Constitution only furthered this myth.
The article argues that this myth of rule of law continues because the courts have accepted limited powers of judicial review on executive actions and has done so on several instances to foster the believe that preventive detention is regulated by rule of law. It starts with a discussion on the case of A.K. Gopalan that challenged in the validity of the PDA, 1950 and although the Supreme Court in this case agreed on the unconstitutionality of a provision that prevented them from examining detention paper, it upheld the Act and ruled that such wide powers were necessary for preventive detention. Acting as a binding precedent, this ruling not only further expanded the scope of executive power but also limited judicial review to a great extent. The situation became worse with the misinterpretation of Gopalan to propose that preventive detention laws could only be subjected to the test of Article 22 and not the other fundamental rights. This view was finally revised in Haradhan Saha where the Supreme Court held that Article 22 could not be the only test for preventive detention laws and other fundamental rights had to be considered as well. But, at the same time, the Court also stated that the content of reasonableness with respect to preventive detention orders would not increase even in cases under Article 19. This myth reached its highest point when the Court in A.D.M. Jabalpur ruled that the exercise of judicial review itself could be taken away by the Executive during Emergency.
Even in the case of Maneka Gandhi, though the Supreme Court had expanded the scope of “procedure established by law” to mean the same as “due process”, Chief Justice Beg opined that in the context of preventive detention it would not exceed the scope of Article 22. The role of judiciary in this context did not witness any change as again the Court upheld the validity of National Security Act in 1982. However, one critical feature of this Act was that, unlike the PDA, 1950, it did not contain any sunset clause and thus suggested a permanent need for such executive powers.
The abstaining role of the judiciary along with the growing claim over power by the executive has managed to build a system where the court would not take interest in the substance of the policy on preventive detention but would still be critical on its procedural aspect. This has created a perplexed reality where even though new horizons for existing rights have been affirmed, the standards for preventive detention have remained the same.
The essay concludes by reiterating its aim of demonstrating the deficiency of constitutional regulation of preventive detention laws and claiming the persistence of maintaining the same legal standards throughout the years as problematic. In order to resolve this issue, the article suggests the removal of Article 22 from the Constitution to enable the judiciary to enforce stricter norms under Article 14, 19 and 21 as it would no longer be restrained by Article 22. However, the effectiveness of this solution depends on the judiciary which, in its history, has been unsuccessful in confronting other branches of the State. Another solution suggested in the article argues for the removal of the Entries from the Union and State Lists that allow legislatures to pass laws on preventive detention. Though it also acknowledges that such a proposal would encounter huge resistance from the government as it would greatly influence the scope of their powers. At last, it focuses on the need to question the provision itself and urges individuals to oppose the normalization of preventive detention laws and erosion of personal liberty.