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Indian Constitutional Law and Philosophy

Category Archives: Preventive Detention

Guest Post: Article 22(3): A Constitutional Paradox

16 Friday Nov 2018

Posted by Gautam Bhatia in Personal Liberty, Preventive Detention

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article 22, Preventive Detention

(This is a guest post by Abhinav Sekhri. It originally appeared on the NLSIR Blog and The Proof of Guilt, and is cross-posted here with the permission of the author).

—

Of late, the transformative nature and potential of the Indian Constitution has been placed under the spotlight thanks to attention from both scholars and courts. The contours of this argument are contested, but according to most versions, the Constitution is an instrument designed to realise an India where the ideals of liberty, equality, and fraternity are fully expressed and protected against arbitrary deprivation. Amidst the focus on India’s transformative Constitution, this post takes a look at Article 22(3). The clause provides that if persons are arrested and detained under preventive detention laws, or are enemy aliens, then the basic protections against arrest and detention provided by Article 22(1) and (2) do not apply. Here, I attack the resulting deprivation of the right to counsel brought about by Article 22(3).

Content and Origins

Article 22 can be understood as consisting of two parts – clauses (1) and (2), and clauses (3) to (7). The first part tells us that all persons are guaranteed certain rights upon arrest: the right to be immediately informed of grounds for arrest, to be produced before a magistrate within 24 hours if detained upon arrest, and to consult and be defended by a counsel of choice. The second part begins with clause (3) telling us that the first part isn’t actually applicable to all persons. Clauses (4) to (7) then detail minimum criteria that any preventive detention law must satisfy: it must inform persons of grounds for detention, enable them to make representations against detention, create Advisory Boards which must approve all detentions longer than 3 months, and fix a maximum period of possible detention.

I’ve discussed the origins of Article 22 at length elsewhere. It suffices here to state that the first part of Article 22 was intended to salvage what the Constitution lost by deletion of “due process” from Article 21. The second part was guided by the same intentions – since the Constituent Assembly had already decided to grant powers to enact preventive detention laws to both the Union and states, the excision of “due process” theoretically meant that there were no limits to what kind of laws are passed. Clauses (3) to (7) were meant to soften the blow and ensure that state interests are protected by laws that facilitate quick arrest and detention, without completely trouncing individual liberties.

In this attempt to strike a balance, the right to legal assistance was sacrificed entirely. I say entirely, for while the other rights provided in clauses (1) and (2) are still present in a watered-down form in clauses (4) to (7), the right to legal assistance fails to find any mention. Why? The consistent answer one gets upon consulting the Constituent Assembly Debates is an argument of efficiency. The Assembly feared that letting lawyers into the preventive detention system would invite delays of the kind that the ordinary criminal justice system suffered from, undermining the very swiftness that made preventive detention attractive in the first place.

Legislative Adaptation and Judicial Treatment

India’s Provisional Parliament passed the Preventive Detention Act, 1950 [PDA] less than a month after the Constitution came into force. Since this body comprised almost the entirety of the Constituent Assembly, one imagines that the statute closely followed the Assembly’s vision of preventive detention. What kind of proceedings did the PDA envisage? Section 7 obligated communication of grounds without fixing a time limit, and permitted non-disclosure wherever  necessary in public interest. Section 10 laid out the procedure of hearings before Advisory Boards and specifically stated that detenus were not entitled to either personal appearance or appearance through counsel. Section 14 went so far as to render grounds of detention entirely confidential, denying even constitutional courts the right to know why a person had been detained.

This, then, is the ideal vision of preventive detention: proceedings that involved acting first and explaining later, with explanations hardly beyond the bare minimum, with paper pushing and no oral hearings. From A.K. Gopalan onwards, this ideal vision was gradually demolished by the Supreme Court. Judicial engagement with preventive detention followed an accepted script: while the ultimate legality of preventive detention measures was beyond question, the harshness of the regime was not. Towards this, several judicially crafted innovations were made to enhance the fairness component, all the while operating within the bounds of Article 22.

The Emergency of 1975 – 1977 saw targeted amendments to undermine these innovations and curtail judicial review. This curtailment, though initially resisted by High Courts, was ultimately accepted by the Supreme Court itself in A.D.M. Jabalpur. As the popular narrative suggests, that Court began to restore the content of fundamental rights and its own institutional legitimacy, once the Emergency ended. This led to the opinions in Maneka Gandhi which expanded the scope of Article 21. In a flurry of subsequent decisions, the Court recognised that this expanded Article 21 contained an unenumerated right to counsel, broader than the Article 22(1) guarantee. While Article 22(1) granted a right to counsel of choice, Article 21 carried a right to counsel, thus prohibiting deprivation of life and personal liberty made in absence of legal assistance.

This belated recognition of the importance of legal assistance and its fundamental link to the right to personal liberty was also soon felt in the sphere of preventive detention. Different benches of the Court in Gopalanachari, Kavita, and Nand Lal Bajaj – all consisting at least of either Justices Krishna Iyer, Sen, or Islam – held that the denial of legal assistance in preventive detention was not absolute. Relying on Article 21, these decisions emphasised the importance of counsel, especially where persons were detained without trial. They held that a detenu still had a right to request for legal assistance, which then had to be adequately considered by authorities. This consideration was ultimately subject to judicial review, providing some measure of oversight. One of these cases, Nand Lal Bajaj, found it “incomprehensible” that the regular criminal justice system granted legal assistance but preventive detention didn’t. But since it was not asked to decide this issue, these remarks remained obiter dicta .

A.K. Roy and the Current Legal Position

Maneka Gandhi, an expanded Article 21, and a fundamental right to counsel: this was the context in which the Supreme Court heard a batch of petitions challenging the National Security Act, 1980 [NSA]. The Constitution Bench assembled for this purpose delivered its decision late in December 1981, reported as A.K. Roy v. Union of India, and it almost entirely upheld the validity of the NSA. The controlling opinion was authored by Chandrachud CJ to which three judges signed on, while Gupta J and Tulzapurkar J dissented in part. Analysing the entire decision is beyond the scope of this post. Rather, the focus here is on how the Court unanimously saved Section 11(4) of the NSA, the provision which disentitled detenus from legal representation before Advisory Boards.

What did the Court do? It relied upon Article 22(3)(b), and held that the right under Article 22(1) to consult and be defended by counsel of choice is inapplicable in the context of preventive detention. The Court acknowledged that preventive detention laws were not only subject to Article 22, but were also open to scrutiny under Articles 14, 19, and 21. Did depriving persons of their liberty without legal assistance satisfy this scrutiny?

The Court rejected the go-around offered by petitioners: since Article 22(3)(b) only excluded Articles 22(1) and (2), the right to counsel contained in Article 21 was still applicable. The controlling opinion labelled it “impossible” to find that what one part of the Constitution had denied, another provided. It then offered a positive answer as well, holding that the original text of the Constitution was per se “just, fair, and reasonable” and so could not fall foul of Articles 19 or 21. Simply put: since the original constitutional text said detenus don’t get lawyers, there was no question about laws implementing this mandate being unconstitutional for violating rights contained in other provisions of the Constitution.

Before parting, the Court tried to mollify the harshness of this conclusion which it had arrived at “regretfully”. It held that where the government engaged counsel, a detenu must also be afforded a similar chance, and further, that nothing denied detenus the ability to ask for assistance from a “friend” in proceedings before the Advisory Board.

 A Veneer of Legality

Preventive detention laws have never been tested by a Constitution Bench since A.K. Roy, and that decision still remains the final word on the issues it considered. In this section, I demonstrate that the controlling opinion’s handling of the issue of denying legal assistance to detenus was flawed and promoted a constitutional vision irreconcilable with the idea of a transformative Constitution.

The primary basis for upholding Section 11(4) of the NSA in A.K. Roy was that Article 22(3)(b) permitted deprivations of the right to counsel and since it formed part of the original Constitution, it is bizarre to say that the framers themselves had inserted unconstitutionally unreasonable clauses. Though the opinion did not cite Golaknath, this distinction between the original text and amendments had been propounded since then: while the Court happily reviewed amendments, it kept the original text in a hermetically sealed box. This distinction was also accepted by the Court in Keshavananda Bharati as a limit to the basic structure doctrine as well.

But this privileging of the original test does not make sense. Gautam Bhatia exposed the logical fallacies in this view some time ago, arguments that I adopt and expand here. As he argued, if we think of the basic structure test as promoting faithfulness to values, then how do we justify this separate treatment for the original text? Moreover, the idea that the original text is uniquely faithful to “we, the people” is also flawed: the Constituent Assembly was barely representative of “the people”, nor was it subjected to a ratification process. Also, nothing in the constitutional text itself supports this separate treatment of the original text and subsequent amendments to it.

The flaw with this approach gets magnified in A.K. Roy because of the context: Articles 21 and 22. The Court in Maneka Gandhi had gone so far as to rewrite the original Constitution by re-inserting “due process” into Article 21. Whatever significance this had for the rest of Indian jurisprudence, the effect of this shift was tectonic in context of Article 22. After all, Article 22 was birthed because the Constituent Assembly had removed the “due process” phrase. Once due process came back into Article 21, it unmoored Article 22 from its very foundations, and directly questioned the adequacy and reasonableness of the limited guarantees that Article 22 provided.

Accepting that an expanded Article 21 contests the earlier minimums set by Article 22 is the only sensible way that the two can be read together, rather than privileging the original text. This was the direction the Court seemed to be heading in as well. It quickly resolved one issue: the minimum set by Article 22(1) in terms of the right to counsel was insufficient, and was thus expanded by Article 21. This was easy, since Article 22(1) could be argued to be silent about legal aid and not explicitly against it. Article 22(3) was much harder because it expressly excluded certain rights. Fidelity to a basic structure doctrine that focuses on values would then evaluate whether this exclusion was contrary to these values, and give us an answer.

Rather than resolve this crucial issue of harmonising an expanded Article 21 and Article 22(3), A.K. Roy simply told us that the latter was correct because it was there for longer. And it did so by trying to minimise the significance of this conflict. While the Court privileged the original text, the controlling opinion carries no mention of the peculiar history behind Articles 21 and 22. Further, it either distinguished the recent decisions on the expansion of Article 21 and a right to counsel, or amazingly did not mention them at all where they pertained to the preventive detention regime.

Conclusion

A.K. Roy subscribes to a view that the Constitution offers forever static minimum protections to safeguard life and liberty. Currently, the Supreme Court finally acknowledges that constitutional protections are meaningless in abstract, and must be tailored to the unique harms that different generations face. The harm from preventive detention is very different today from what it was in 1950. It is far from an exotic tool to deal with threats to public order, and instead is used to arrest persons on suspicions of copyright violations, video piracy, and cow slaughter. Even more importantly, the very basis for the original minimum constitutional rights secured by Article 22 has ceased to exist ever since the Court re-inserted due process into the Constitution, where it has flourished since. Thus, if the entire milieu has changed so dramatically, is it sufficient to tell us that persons, who can be arrested and jailed without knowing why and kept in jail for months on end, have no right to counsel simply because the Constitution said so from the start? I strongly disagree.

*This post is focused on preventive detention, largely because there has been no instance of applying Article 22(3)(a) that I could trace. Nevertheless, the arguments here, made in the preventive detention context, would also apply to Article 22(3)(a). 

Preventive Justice Part 3 – An Overview of the Statutes

31 Saturday Dec 2016

Posted by Gautam Bhatia in Preventive Detention, Uncategorized

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Preventive Detention

(This is Part III of Abhinav Sekhri’s series on preventive detention under the Constitution, cross-posted from Proof of Guilt).
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The two previous posts in the Preventive Justice series focused on Article 22 of the Indian Constitution which prescribes basic minimums regarding preventive detention in India. The history behind this constitutional provision – labelled an anachronism – offers further support to that old adage of not judging books by their covers. The development of due process law in India was used to question the sustainability of the basic minimums constitutionally prescribed by Article 22. To recap, it was argued that the Supreme Court has, unambiguously, held that Article 22 is not a complete code and preventive detention laws are open to challenge under Articles 19 and 21. In this concluding post in the series, I look at the many statutes – both federal and state – in India that authorise preventive detention for a wide variety of acts. The question I beg, not always directly, is whether these would pass muster when tested against Articles 19, 21 and 22 of the Constitution.
Scope of Legislative Power on Preventive Detention
The Seventh Schedule to the Indian Constitution details the various items on which the federal and state legislatures can pass laws. Preventive Detention figures as Entry 9 on the Federal List (List I) as well as Entry 3 of the Concurrent List (List III). These read as follows:
Entry 9, List I: Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India; persons subjected to such detention.
Entry 3, List III: Preventive detention for reasons connected with security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention.
In A.K. Gopalan v State of Madras [AIR 1950 SC 27] the majority held there was no requirement to specify what issue of defence or foreign affairs a preventive detention statute sought to deal with. It would be legal for it to simply refer to the subjects mentioned in these entries as justifications. As we shall see, this proved to be important for courts in upholding the validity of these statutes.
 
Federal Laws Authorising Preventive Detention
Is it purely coincidental that the federal laws authorising preventive detention in India today have some connection with the 1975 Emergency, when preventive detentions were most routinely ordered? Perhaps. Although the controversial Maintenance of Internal Security Act, 1971 was repealed in 1978, its cousin the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) was not. This was, in fact, supplemented by the National Security Act (NSA) and the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act (Black Marketing Act) in 1980. What are the purposes of these laws and what do they proscribe?
  • COFEPOSA: Allows for preventive detention for “conservation and augmentation of foreign exchange and prevention of smuggling activities.“
  • NSA: Persons acting “prejudicial to the defence of India, the relations of India with foreign powers, or the security of India” as well as those acting “prejudicial to the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community can be preventively detained.
  • Black Marketing Act: Allows for detention in cases for prevention of “blackmarketing and maintenance of supplies of commodities essential to the community.”
Do these objectives fall foul of the tests laid down in Articles 19, 21 and 22? The legality of the NSA was challenged in A.K. Roy v Union of India [AIR 1982 SC 710],and upheld by the Supreme Court. It helped that the legislature had copied the objectives from the Seventh Schedule.
The COFEPOSA posed a more interesting challenge. Passed before the Emergency, it was also placed in the Ninth Schedule. This was the basis for the Supreme Court upholding its validity in Attorney General for India v Amratlal Prajivandas [AIR 1994 SC 2179]. At that time laws placed in the Ninth Schedule were completely immune from judicial scrutiny. This understanding changed with I.R. Coehlo v State of Tamil Nadu [AIR 2007 SC 861] which held placing a law in the Ninth Schedule could not bar challenges for fundamental rights violations.
Did that affect the fate of COFEPOSA? The Supreme Court in Dropti Devi v Union of India [(2012) 7 SCC 499] held that this didn’t matter. It noted that as the validity of the COFEPOSA had been upheld once, the change brought by I.R. Coelho would not allow another challenge. Still, the Court went ahead to address the merits in the decision, only to bunk the arguments that the COFEPOSA violated Articles 19, 21 and 22. The economic harm that the COFEPOSA purportedly addresses was seen as a measure to safeguard the security of India by the Court.
State Laws Authorising Preventive Detention
The vast majority of State laws greatly resemble each other – in both substance and in name – and address purported anti-social elements such as Goondas and Bootleggers. Amnesty India has put up a useful resource listing these laws and their objectives which means I can jump right away to the more recent developments on this front. I refer to the amendments to preventive detention laws brought to address video piracy and digital offenders. This was done by Karnataka most recently, giving us the atrociously titled Karnataka Prevention of Dangerous Activities of Acid Attackers, Bootleggers, Depredator of Environment, Digital Offenders, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Land Grabbers, Money Launderers, Sexual Predators and Video or Audio Pirates Act 1985. The problems posed by such amendments by states have been discussed a fair bit already (see here, here and here) and has been considered once by the Madras High Court in 2005. Supplementing those critiques, I argue that these extensions are illegal for the laws do not pass the test posed by Articles 19, 21 and 22. The development of due process would suggest Article 21 poses an important test to the validity of these laws.
Conclusion
The lack of attention to preventive detention legislation in India remains surprising. Especially at at time when there is renewed attention to the expanding scope of detention without trial across the globe. The judicial approval of these statutes has stemmed debate to a certain extent, and has consequently resulted in emboldening states to continually expand preventive detention laws. While preventive action in itself is not a problem, Indian laws (both federal and state laws) display a glaring lack of proportionality in their approach. Prescribing possibly year-long detentions for potential copyright violations, when the offence itself is bailable, is patently unjustified and illegal. Looking ahead, lets see what the future holds.

Preventive Justice Part 2: Looking Inside Pandora’s Box

11 Sunday Dec 2016

Posted by Gautam Bhatia in Article 21 and the Right to Life, Preventive Detention

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article 21, maneka gandhi, Preventive Detention

(In this second post of a series, Abhinav Sekhri continues with his genealogical analysis of the Constitution’s preventive detention clause. This essay has been cross-posted from The Proof of Guilt blog.)

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In the previous post, I traced the history behind Article 22 of the Indian Constitution, showing how the clause was considered to be Dr. Ambedkar’s version of due process after that idea was excluded from Article 21 [India’s guarantee to protect the right to life and personal liberty]. Constitutional developments since have seen the Supreme Court re-introduce the due process idea into Article 21 most famously in Maneka Gandhi’s case. This, naturally, raises questions about the position of Article 22 in the panoply of rights to freedom guaranteed under the Indian Constitution. It leads me to consider the history behind the interplay between Articles 19 to 22 in this post. For this I have relied, again, on the books by Granville Austin and Mr. Seervai’s commentary, and I would strongly suggest those interested in the issue to consult these sources. I then argue, that Article 22(3)(b) – excluding the right to legal representation for those preventively detained – is contrary to Article 21.
The ‘Complete Code’ idea – AK Gopalan and RC Cooper
A.K. Gopalan v. State of Madras [(1950) SCR 88] is one of my favourite decisions of the Supreme Court, and probably one of the most misunderstood ones too largely due to the common vilification it suffers after Maneka Gandhi. A.K. Gopalan [Communist Leader, and later Member of Parliament] was detained under the Preventive Detention Act, 1950 [a legislation hastily passed by the Nehru Government a month after the coming into force of India’s Constitution to prevent release of the hundreds of persons detained under laws that would soon lapse]. Gopalan challenged the Act for violating Articles 14, 19, 21 as well being contrary to Article 22 itself. The Court upheld the validity of the Act but held Section 14 unconstitutional for violating Article 22(5) – the provision prevented even courts from accessing materials on which detention orders were based.
This post is limited to only one of the several fascinating points of discussion thrown up by Gopalan. That is the issue of Article 22 being a ‘Complete Code’, which means that the legality of preventive detention laws is limited to being tested only against Article 22 and not the other fundamental rights in Part III of the Constitution. The Attorney General argued this was the correct position of law. Only Mahajan, J. agreed: “I am satisfied on a review of the whole scheme of the Constitution that the intention was to make Article 22 a self-contained in respect of the laws on the subject of preventive detention.” Kania, C.J., Sastri and Das, JJ. considered Articles 21 and 22 had to be read together [Kania, C.J.: “According to him [the Attorney General], Article 22 is a complete code. I am unable to accept that contention.”]. Fazl Ali, J. went a step further and observed that “In my opinion, it cannot be said that Articles 19, 20, 21 and 22 do not to some extent overlap each other.”
This means that the ‘Complete Code’ argument was rejected in Gopalan itself, the only doubts left were regarding applicability of Article 19 to preventive detention laws. Strangely, then, the majority of ten judges in R.C. Cooper [1970 SCR (3) 530, speaking through Shah, J.] held that “The majority of the Court [in Gopalan] held that Article 22 being a complete code relating to preventive detention, the validity of an order of detention must be determined strictly according to the terms and ‘within the four corners of that Article‘.” As Mr. Seervai notes, the majority incorrectly considered the ‘Complete Code’ idea as being approved by Gopalan and that this was further compounded in Haradhan Saha [(1975) 3 SCC 198]. In hindsight some good came of this error. The R.C. Cooper majority upheld the view of Fazl Ali, J. and overruled Gopalan for accepting the ‘Complete Code’ argument [wrongly, of course]. This cleared the way for preventive detention laws to also be subjected to Article 19 challenges, together with existing tests of Articles 21 and 22. The Article 21 test was later notably strengthened in 1978 by Maneka Gandhi transplanting ‘procedure established by law’ with ‘due process of law’ without amending the text of Article 21 itself. Subsequent years saw the just, fair, and reasonable logic of Article 21 seep into preventive detention laws – Francis Coralie Mullin [AIR 1981 SC 746] an eloquent instance of the same.
Pandora’s Box: Unleashing Article 21 on Article 22(3)(b)
Opening Pandora’s Box is shorthand for taking decisions without appreciating the consequences. I think the analogy aptly reflects the Supreme Court’s move to import ‘due process’ into Article 21. The interplay between the various ‘rights to freedom’ under Part III was based upon the specific exclusion of due process from Article 21 [discussed in the last post]. It is fair to say that the decision in Maneka Gandhiirreversibly severed Articles 19-22 from that original interpretation. Proceeding from this position, I argue that Article 21 and Article 22(3)(b) cannot coexist in the current constitutional scheme. The limited version of ‘due process’ guaranteed through Article 22 must give way.
Recall that Article 22(3)(b) barred persons detained under preventive detention laws from consulting and being defended by a legal practitioner of their choice. Like the rest of the preventive detention clause, this was considered necessary due to the situation prevailing at the time by Dr. Ambedkar. The Supreme Court noted its harshness but begrudgingly accepted this position. All this was because Article 22 represented the extent of due process guaranteed in the Constitution. Then the Supreme Court decided to introduce an unfettered concept of ‘due process’ into Article 21. This led the Court to note in Madhav Hoskot v. State of Maharashtra [(1978) 3 SCC 544] that a ‘procedure established by law’ entailed a right to appeal, right to counsel and imposed a duty upon the State to provide free legal aid (Krishna Iyer, J. even passed directions to that effect). How, then, does one justify the exclusion of this right to counsel through Article 22(3) to persons who perhaps are in greatest need of legal counsel?
Five judges in A.K. Roy v. Union of India [(1982) 1 SCC 271] squarely faced this contention. Their answer was simple: detenus had not right to counsel because Article 22(3) specifically excluded it. Notice the helplessness in the opinion: “It is therefore necessary that the procedure prescribed by law for the proceedings before the Advisory Boards must be fair, just and reasonable. But then, the Constitution itself has provided a yardstick for the application of that standard, through the medium of the provisions contained in Article 22(3)(b). Howsoever much we would have liked to hold otherwise, we experience serious difficulty in taking the view that the procedure of the Advisory Boards in which the detenu is denied the right of legal representation is unfair, unjust or unreasonable. … It is unfortunate that courts have been deprived of that choice by the express language of Article 22(3)(b) read with Article 22(1). [Emphasis mine]” What is crucial here, is the Court relying upon Article 22 itself as the yardstick to determine what is just, fair, and reasonable. I argue that this is incorrect, because after Maneka Gandhi the test of procedural fairness flows from Article 21 and not Article 22. In any event, no part of the Constitution itself remains above scrutiny, and the helplessness of the Court is akin to crocodile tears.
Conclusion
The idea of a ‘Complete Code’ in Article 22 was unassumingly sustained by the Supreme Court and eventually buried by it as well. The consequences of this, however, are something that the Court continues to struggle with. While I have focused on clause (b), the retention of Article 22(3) itself despite the Supreme Court heralding a ‘due process’ standard is unacceptable. Looking at decisions post 1980 concerning preventive detention, it is clear that judges appreciated the problem. Successive decisions did mollify the deprivation of a right to counsel. In Nand Lal Bajajv. State of Punjab [(1981) 4 SCC 327], the Court held that a detenu had a right to counsel where the Government was permitted to engage a lawyer to argue before the Advisory Board established under a preventive detention law. This, it reasoned, would violate Article 14 and Article 21. In A.K. Roy, after expressing its dire helplessness the Court did go ahead and hold that a person detained had a right to be assisted by a friend [“who, in truth and substance, is not a legal practitioner“] in making a representation. The Court has re-written Article 22(3) to this limited extent, but it dare not take the plunge and declare it wholly redundant.

Guest Post: Preventive Justice Part 1 – The History behind Article 22

03 Saturday Dec 2016

Posted by Gautam Bhatia in Preventive Detention

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article 22, liberty, Preventive Detention

(In the first in a series of guest posts, Abhinav Sekhri discusses the antecedents of the Constitution’s preventive detention clause. This essay has been cross-posted from The Proof of Guilt blog)

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India’s Constitution elaborates on certain Fundamental Rights guaranteed to individuals. Some are limited as citizenship rights [Article 19] while others extend to all persons within the Union [Article 21]. As the title suggests, this post is concerned with Article 21’s not-so-celebrated cousin, Article 22 [the cousin terminology is deliberate, as I will show later]. I first came across the very interesting history behind Article 22 while reading Granville Austin’s Cornerstone of a Nation, and then traced the discussion in the Constituent Assembly Debates while supplementing it with some independent research. It is also discussed by Mr Seervai in his commentary on Articles 19-22 but only to the extent necessary for furthering his argument. In this post, I first look at the text of Article 22 and then the history behind its inclusion in the Constitution.

 

Right to Freedom – Articles 19-22

Part III of the Constitution runs from Article 12 to Article 35, but we often end up missing how the framers grouped certain rights together. Articles 19-22, for instance, are couched under Right to Freedom. One possible explanation offered is that Article 19 confers positive freedoms while Articles 20-22 confer negative freedoms by limiting what the State can do. Article 21 states that No person shall be deprived of his life or personal liberty except according to procedure established by law.

This is followed by Article 22, which immediately tells us exactly how the State can take away this right to life and personal liberty. So, we find general protections in Articles 22(1) to (3): every person arrested must be informed of the grounds of arrest and be permitted to engage legal counsel of her choice [Article 22(1)], as well as be produced before a magistrate within 24 hours of being detained [Article 22(2)]. This, interestingly, is followed up by 22(3) which specifically takes away these rights in case of enemy aliens and persons arrested and detained under preventive detention laws. The remainder of Article 22 – clauses (4) to (7) – moves on to lay down the limits of preventive detention laws and confer certain limited rights upon detenus. Thus, ordinarily preventive detention is capped at three months unless reviewed by an Advisory Board which recommends otherwise [Article 22(4)], where the case is not of a category warranting special treatment [Article 22(7)]. Detenus have a right to be informed of the grounds behind a detention order as soon as may be [where disclosure is not contrary to public interest as per Article 22(6)], and also to make a representation against the order [Article 22(5)].

The majority of Article 22 appears a precision-based instrument chipping away the edges of the basic rights guaranteed by Article 21. It has frequently been attacked throughout the history of independent India, with detractors often pointing to the worst excesses of the Emergency in 1975 as indicative of the misuse Article 22 allows. What if I told you that Article 22 was introduced into the Constitution in order to prevent the worst excesses from materialising? That is the lesson we learn from history, to which I now turn.

Draft Articles 15 and 15-A and the ‘Due Process’ Fallout

The use of procedure established by law to safeguard the right to life under Article 21 of the Indian Constitution, as against the due process clause, is a wonderful story in itself [It is part of a separate file in the National Archives of India no less titled Article 15: Due Process of Law]. The initial Draft Article 15 (which became Article 21) contained the words due process. While the Constituent Assembly was mulling over the draft in India, Sir BN Rau – who was the Official Constitutional Adviser – had been entrusted with the task of eliciting opinion from important personalities abroad. During this time he met Justice Frankfurter, who strenuously advised him against the incorporation of the due process clause.

Sir BN Rau considered these suggestions important enough to send a memorandum across by airmail dated 11 November 1947 (a very expensive proposition back then). He subsequently sent across his views in a formal Report in December, 1947. KM Pannikar, an Assembly Member, wrote to Sir Rau on 30 December 1947 discussing this report, and his happiness that “Munshi’s [KM Munshi, member of the Assembly] due process clause has got a knockout blow from Justice Frankfurter.” On 7 April 1948, Sir Rau wrote to Justice Frankfurter to inform him of the Assembly having substituted due process with procedure established by law in Article 15 of the Draft Constitution. 1948 saw fervent efforts to re-introduce due process led by KM Munshi. On 13 December, Dr. Ambedkar was asked to give his final reply on this tussle between the Legislature and the Judiciary. He is famously quoted as saying “It is rather a case where a man has to sail between a Charybdis and Scylla and I therefore would not say anything.”

The stoicism in this statement does not mean that Dr. Ambedkar was simply going to accept this changed state of affairs. He supported the due process clause, and was affected by the intense criticism this withdrawal of due process drew from various circles. In September 1949, months before the conclusion of the debates, the Drafting Committee (headed by Dr. Ambedkar) cited this backdrop and introduced Article 15-A in the Assembly. This, today, is Article 22 barring some minor modifications. Article 15-A was introduced as a measure of “compensation for what was done then in passing Article 15” since removal of due process meant Article 15 conferred a carte-blanche on the executive to arrest and detain persons. Equally, existence of preventive detention as a subject on the Federal and Concurrent Lists of Business without due process protection meant the legislature could not be checked in passing oppressive legislation. These twin factors seemed to have convinced Dr. Ambedkar of the need to have express fetters placed on the possibility of arrest and detention of persons in independent India. Dr. Ambedkar spoke for the Drafting Committee when he said that “we providing for the substance of the law of ‘due process’ by the introduction of Article 15A“. 

Conclusions and Questions

Therefore, Article 22 was in fact a measure to protect, rather than curtail, the right to life and personal liberty. Mr Seervai discusses this in his Commentary, to conclude that perhaps it would have made better sense to have the first two clauses in Article 22 as part of Article 21, making a separate Article for the exclusions. Looking at what happened subsequently, a differently drafted Article 21 might have led to a differently written judgment in Maneka Gandhi. It might have prevented the Supreme Court from going so far as to incorporating the substantive due process standard that the Constituent Assembly so painstakingly chose to avoid. Where does Maneka Gandhileave the due process that Article 22 represented for the Constituent Assembly and Dr. Ambedkar? The Supreme Court has not considered this question fully, yet, although some seepage of Maneka jurisprudence into Article 22 has definitely resulted. In the next post we will address some of these questions arising out of the Supreme Court’s engagement with Article 22 of the Constitution.

 

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  • Gautam Bhatia

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