Guest Post: Dr. Kafeel Khan and our Punitive Preventive Detention Law

[This is a guest post by Abhinav Sekhri, and is cross-posted with permission from The Proof of Guilt blog, where it first appeared.]


On August 11, the Supreme Court had requested the Allahabad High Court to expeditiously decide the habeas corpus petition filed by Nuzhat Perween for her son, Dr. Kafeel Khan. The petition challenged orders for his preventive detention under the National Security Act of 1980 (NSA) that were passed on February 13, 2020. Initially filed before the Supreme Court in February itself, the petition was sent to the Allahabad High Court in March, where it was heard multiple times before, finally, on 01.09.2020 a Two Judges’ Bench passed a judgment in Nuzhat Perween v. State of UP and Anr., [Habeas Corpus WP No. 264 of 2020 (decided on 01.09.2020)] declaring the detention order illegal and directing Dr. Khan’s immediate release. 

Unlike that last time that a judicial authority directed his release on 10.02.2020, following which Dr. Khan was not released but instead led to the impugned detention order being passed, this time Dr. Khan has indeed stepped out of prison and as of now has not been arrested in any other proceedings.

Background to the Preventive Detention

Dr. Khan’s prevention detention under the NSA is only the most recent episode of the state machinery training its attention on him and depriving him of his personal liberty, only for a judicial authority to direct his release. 

According to the state, what prompted the order on 13.02.2020 was a public speech given by Dr. Khan in Aligarh to a group of students on 12.12.2019, i.e. an event more than two months old. It was stated that the speech incited feelings of communal disharmony and it also lent itself to violent protests by groups of students on 13th and 15th December in Aligarh District. The proposal for preventive detention, made on the same date as the order, stated that “Since the fierce and communal speech given by him has had an adverse and unfavourable impact on the public order of the District, therefore it is very important to keep this person detained in jail to maintain the public order. (emphasis mine)” Take a close look at the last line above — preventive detention was necessary to keep Dr. Khan in jail. Why was he in jail, you ask? Because following the speech of 12.12.2019, a case was registered at P.S. Civil Lines, Aligarh, in the early hours of 13.12.2019 alleging inter alia that the speech incites communal disharmony. Dr. Khan was not immediately arrested in this case, but was ultimately taken into custody from Mumbai on 29.01.2020. He filed for bail, a request which was naturally opposed by the state. Despite the opposition, however, bail was granted on 10.02.2020. Two observations in the bail order are important: first, the Court rebuffed the state claim about the accused repeating the offence by stating that this would be grounds to challenge his bail, and; second, the court placed a bail condition upon Dr. Khan to “ not repeat the crime in the future”.

What happened next is in keeping with the worst traditions of how governments run in our republic, witnessed from the days of A.K. Gopalan itself (no, not his Supreme Court case). The bail order was passed but not given effect to by the executive. Two days later, on 13.02.2020, the trial court passed another order directing jail authorities to release Dr. Khan and directed its delivery by Special Messenger. However, the state claimed this was only received at 8:20 PM in the evening, by which time the preventive detention order had been proposed by the Officer in Charge of PS Civil Lines, sponsored by the Deputy Inspector General of Police, and authorised by the District Magistrate, Aligarh.

Therefore, it would be a mistake to think that Dr. Khan’s preventive detention was specifically required because of the incident of December, 2019. Rather, the need was only perceived by the U.P. Government once a competent court had applied its mind to the allegations against Dr. Khan in the regular course of law, and found that there was no reason to prolong his pre-trial custody any further. 

The Allahabad High Court Verdict

Before proceeding to the order that came to be passed in the habeas corpus petition, it must be mentioned that it took close to six months for a decision to be made in the matter. Even if we exclude the time the petition was in the Supreme Court, it is still an inordinate delay for what is arguably the most crucial kind of case before courts — one directly concerning the liberty of a citizen. 

Having said that, the short judgment of 42 pages does not waste too much time in getting down to the matter. The petition challenged the order of 13.02.2020 on three broad prongs: (i) there was no material for ordering preventive detention and it was intended to subvert the judicial process; (ii) the detenue was not supplied with all material thus denied a right to file an effective representation against his detention, and; (iii) the concerned government had unduly delayed the consideration of his representation against detention. I will only focus on (i) and (ii), as the judgment is restricted to a consideration of only these grounds. On both these legal issues, the Allahabad High Court has made some important observations.

Supplying Material

Let’s look at (ii) first because this is a small point. The High Court noted that while Dr. Khan had been given a CD with the speech ascribed to him, he was not given any means to play this disc. Neither was he supplied with any transcript of this speech, which was the primary basis for his preventive detention. This was unconscionable, and the Court rightly held it so, finding that this conduct on part of the state government deprived the detenue of his constitutional right to make an effective representation against his detention. 

Preventive Detention and Subjective Satisfaction

The Allahabad High Court was asked to consider the contents of the speech given by Dr. Khan in December 2019 to decide whether a reasonable person could apprehend any disturbance to public order based on his exhortations. The Court’s approach in this regard is important and requires a brief excursus to explain the legal position on how challenges to preventive detention orders are to be treated by the judiciary.

The law on preventive detention is an executive-driven process: it is an extraordinary power that executive officials have in India to make sure that imminent threats to public disorder etc. can be addressed swiftly without going through the rigour of the regular criminal process. The primacy given to the executive requires that in any subsequent challenge to a detention order, judges cannot substitute their mind for the subjective satisfaction of the executive official who made the decision in the heat of the moment. The judge cannot place herself in the shoes of the police officer. 

At the same time, however, this doctrine of respecting the subjective satisfaction of executive officials is not a license for abdicating the judicial function entirely when considering a challenge to preventive detention. Courts must still apprise themselves of the materials presented before the detaining authority to decide if the decision to authorise preventive detention was arbitrary and unreasonable. There is no running away from the fact that the lines being drawn here are fuzzy, and while it moves some courts to be excessively deferential to the executive, it equally allows other courts to keenly consider the facts without overstepping the limits of the judicial function or abdicating it entirely. 

In Nuzhat Perween, the Allahabad High Court clearly took the latter approach: 

“We are in absolute agreement with learned Additional Advocate General that it is not open for the courts to substitute their opinion by interfering with “subjective satisfaction of the detaining authority”. However, it does not mean that the court cannot look into the material on which detention is based. The expression “subjective satisfaction” means the satisfaction of a reasonable man that can be arrived at on the basis of some material which satisfies a rational man. It does not refer to whim or caprice of the authority concerned. While assessing “subjective satisfaction of the detaining authority” the Court examining a petition seeking a writ of habeas corpus has to look into the record to examine whether the subjective satisfaction is acceptable to a reasonable wisdom and that satisfies rationality of normal thinking and analyzing process. … In view of above, we have looked into the speech delivered by the detenue. The closure of examining record as suggested would be nothing but a licence to allow the executives to act at their whims or caprice. This would be against the fundamentals of our constitutional values and provisions. (Emphasis Mine)”

In line with this approach, the High Court looked at materials forming the basis for the detention order in detail. The judgment quotes the entirety of Dr. Khan’s 23 minute-long speech made on December 12, to demonstrate how the police requests for preventive detention in this case had, in fact, not presented the authority with the complete picture. Instead, the police had patched up different parts of Dr. Khan’s speech to present a different picture altogether from what appeared to be the speaker’s intention. It held, therefore, that based on this material it was impossible to conclude that Dr. Khan’s activities were such as to prejudice the maintenance of public order. 

Punitive Preventive Detention

The peculiar facts leading up to the detention order of 13.02.2020 have been extracted above, and it was argued that this demonstrates that the two months’ delay in passing the order, and its expeditious authorisation after Dr. Khan’s bail, all went to show that the preventive detention order was actuated by malice and not based on any genuine grounds. 

This is a more tedious issue than what might appear at first blush. It is because the Supreme Court has, on countless occasions, held that it is not illegal to pass a preventive detention order in cases where the person is already in custody and about to be released on bail. Most recently, this was confirmed by the Court in Dimple Happy Dhakad [AIR 2019 SC 3428] (Discussed on this Blog as well). Technically then, preventing Dr. Khan’s release on bail was a legally valid ground for the U.P. Government to take. 

This is really the twilight zone when it comes to preventive detention, where the preventive setup inextricably merges with the regular criminal process. The only justifiable premise for passing a preventive detention order in respect of a person who is about to be released on bail is if the authority can demonstrate that there is a continuing threat which did not dissipate once the regular criminal process has taken charge of the matter. This is not unimaginable — organised crime has many stories of rackets being run from prison. But it must be a very hard sell for the executive and it cannot be a means to pile-on incarceration upon persons deemed undesirable by the state. Not only would such delayed preventive detention orders turn the concept on its head — where is the prevention if the person was already in jail for months after the incident! — but it would also directly subvert the determination made by a competent court that there was no need for a person’s continued incarceration. At a macro-level, repeat occurrences of this phenomenon place an undeniable strain upon the relationship between the executive and judiciary, and give rise to an unconstitutional chimera of punitive preventive detention that hollows out the right to personal liberty from within. 

This is why courts must arguably be more vigilant while entertaining challenges to preventive detention orders in such cases where bail order is passed and, in some way, circumvented — as the Supreme Court has also emphasised on some occasions in the past. This is exactly the kind of approach on display in Nuzhat Perween, where the Allahabad High Court noted that:

“The exact nature of the contents of the lecture delivered by the detenue on 12.12.2019 at the Bab-e-Syed Gate of the AMU (as claimed by the state authorities), even if accepted to be correct, it cannot be overlooked that, that material could not be relevant for the purpose of satisfaction being drawn two months thereafter, inasmuch during that period of two months, undisputedly, the detenue neither visited the city of Aligarh nor he made any further or other speech or lecture connected thereto nor there is any material shown to us that the detenue was about to commit any act in furtherance thereto or was going to deliver any other speech or lecture connected thereto as may have prejudiced the public order.”

There was no fresh alleged illegal activity between December and February which prompted the order of 13.02.2020, even though Dr. Khan had been at liberty throughout that time. There was not even a proposal to pass an order for his preventive detention in that period. The first time when the idea came to the government was after the bail order was passed. For the Court, all this pointed to a conclusion that the gap of two months’ snapped whatever link existed between the allegedly offending conduct of Dr. Khan with a need to require his preventive detention. 

Our Slow-Moving Wheels of Justice 

The story of Dr. Khan and the manner in which the preventive detention machinery was clearly misused by the state government to keep a dissident behind bars is a tale as old as time itself. Small wonder why the writ of habeas corpus has such a celebrated position in societies. Indian courts have not had the most shining of records in terms of processing habeas petitions over the past few years and the delay that it took for Dr. Khan’s petition to be heard speaks to this serious systemic problem. But, ultimately, a court did apply its mind, and restore a person’s liberty. 

The episode reminds me of a scene from the movie Shahid, where the young, imprisoned, Shahid Azmi is told by War Saab (played by KK Menon) that the wheels of justice turn slowly in India, but they do eventually turn.

Well, eventually, I guess they do.

Guest Post: Preventive Detention and the Dangers of Volcanic, Ever-Proximate, Ideologies

[Editorial Note: On 8th February, I hd written this blog post, about the judgment of the Jammu and Kashmir High Court upholding the administrative detention of Mian Abdool Qayoom, the 76-year old President of the Jammu and Kashmir Bar Association. In that post, I had pointed out that the High Court’s quotation of a line spoken by the Greek King Menelaus, in Sophocles’ play Ajax (itself copied without attribution from a prior judgment by Dipak Misra J) was unwittingly revealing: it demonstrated how Qayoom’s detention could not be justified under any framework of legal or constitutional reasoning, but only by an appeal to the brute power of arms (sticking with classical Greece, as the Athenians would say, “the strong do what they can and the weak suffer what they must.”)

At that time, it was difficult to imagine a future judgment of this High Court sinking even lower; but when the bottom is an abyss, it seems there is no limit to just how low you can go. A judgment by a division bench of the J&K High Court – also involving Qayoom’s detention (now approaching its tenth month, without trial) has achieved the spectacular feat of besting even the February judgment’s Greek fantasies in its intemperate language, its partisanship, its ignorance of basic constitutional principles, and its desire to defeat all other comers in achieving a swift and seamless merger of the judiciary with the executive. This is a guest post by Abhinav Sekhri, analysing it (cross-posted from the Proof of Guilt Blog. – G.B.]


81. As mentioned in para 37 of this judgment, while addressing his arguments on the ideology nourished and nurtured by the detenue, the learned Advocate General submitted that such ideology cannot be confined or limited to time to qualify it to be called stale or fresh or proximate, unless, of course, the person concerned declares and establishes by conduct and expression that he has shunned the ideology (emphasis supplied in original).

82. In light of the above legally rightful and sound argument taken by the learned Advocate General, we leave it to the detenue to decide whether he would wish to take advantage of the stand of the learned Advocate General and make a representation to the concerned authorities to abide by it. … (emphasis mine)

[Extract from Mian Abdool Qayoom v. Union Territory of J&K & Ors., LPA No.28/2020, decided on 28.05.2020]

This exchange is not part of the judgment of the Jammu & Kashmir High Court dismissing Mian Abdool Qayoom’s appeal against a Single Judge order that had rejected his challenge to order condemning him to preventive detention under the Public Safety Act. Instead, it is part of the order dismissing an application seeking Qayoom’s temporary release from Tihar Jail due to Covid-19. The High Court unequivocally supported requiring an oath of loyalty as a condition for releasing a 76-year-old diabetic detenu who is on surviving one kidney during a pandemic which has placed him under high risk.

A preventive detention order against political dissidents is not new for India, and certainly not new for Jammu and Kashmir. It is telling that one of the last judgments of the Federal Court, passed six days before the Constitution came into force, was one which upheld the preventive detention of Machindar Shivaji Mahar, mainly because he was a member of the Communist Party which advocated for armed revolution. Then as now, judges held that actively supporting violent ideologies can make it likely that the person will act in a manner prejudicial to public order.

The cynic would argue, then, that we never left the place which the Jammu & Kashmir High Court shows us in Qayoom’s appeal. The cynic is mistaken, because in between we gave to ourselves a Constitution, which ensured persons like Machindar Shivaji had a fairer process governing preventive detentions than what might have been granted under the erstwhile laws (processes which now apply to the Union Territory of Jammu & Kashmir). On top of this, the Indian Supreme Court has tried to enhance the fairness of these procedures over seventy years.

Even if the record of the Supreme Court on preventive detention is largely regrettable on the whole, there are times when one gets a glimpse of what justice looks like in a system where executive discretion is strongly tested by vigilant courts on the anvil of fundamental rights. It was one such moment in 1979 which saw the Supreme Court quash the detention orders of Mohd. Yousuf [(1979) 4 SCC 370], passed by the then State Government of J&K. A detention order passed against this “Die Hard Naxalite” was methodically taken apart by the bench and shown for what it was: An executive act based on vague and irrelevant grounds that could not deprive any person of her constitutionally reified right to personal liberty.

Mian Abdool Qayoom’s continued detention by virtue of the J&K High Court judgment is, I would argue, antithetical to the kind of justice shown in Mohd. Yousuf, where a court adopted a critical lens to executive determination without substituting its own judgment. Here, illegal grounds in Qayoom’s detention order are justified as being “clumsy”, and then the Court jumps in to fill the gaps despite proclaiming an inability to step into the shoes of the district magistrate authorising detention.

This is nowhere more apparent than the remarkable excursus about the relevance of ideology while considering preventive detention. The High Court goes much beyond a simple argument of allowing the police to consider a prior record to justify need for urgent preventive actions. It also goes beyond Machindar Shivaji and permits reference to activities of one’s political party as a basis to consider risks to public order. Instead, it suggests the authorities have legitimate grounds to detain persons for years without trial, based on their “ideology”.

48. Having considered the matter, we may say that an ideology of the nature reflected in the FIRs and alleged against the detenue herein is like a live volcano. The ideology has always an inclination, a natural tendency to behave in a particular way; It is often associated with an intense, natural inclination and preference of the person to behave in the way his ideology drives him to achieve his latent and expressed objectives and when he happens to head or leading a group, as the allegations contained in the FIRs suggest, his single point agenda remains that his ideology is imbued in all those whom he leads. … Generally, when a criminal act takes place, its impact may be felt within a small circle or its repercussions may be of bigger consequence, but with the passage of time the impact and the consequences generally subside or vanish. When it comes to propensity of an ideology of the nature reflected in the FIRs supported by the intelligence reports we have gone through, we are convinced that it subserves the latent motive to thrive on public disorder. In that context, we feel that most of the judgments of the Apex Court do not fit the facts and the given situation.

Therefore, we are left with no option but to say that an ideology that has the effect and potential of nurturing a tendency of disturbance in public order, such as is reflected in the FIRs registered against the detenue in the instant case, and of which the detaining authority is reasonably satisfied, can be said to be different from a criminal act or acts done sometime in the past and, therefore, would always continue to be proximate in their impact and consequence and, therefore, would not attract the judgments cited at the Bar on the point. … Furthermore, we are also of the view that such an ideology alleged against a person, if mentioned in the earlier grounds of detention, because of its nature of subsistence and propensity, would not lose its proximity and, therefore, can be taken into account and used for detaining such person subsequently if the detaining authority is satisfied that such an ideology of the person has the potential to goad or instigate disturbance in public order, in a susceptible given situation, like the one it was at the relevant point of time. … (emphasis mine)”

 

Let us take a moment to understand the significance of this rhetoric. Preventive detention powers are conferred upon executive officers to prevent certain kinds of danger by detaining a person without trial. While courts cannot review the officers’ subjective satisfaction of the facts requiring detention, there are some judicial checks in place. To ensure that this discretionary power is not beholden to an officer’s arbitrary prejudices and remains justiciable, the law requires that each detention order be backed by reasonable, relevant, and germane grounds which explain why detention was urgently necessary, which must be expressed clearly to enable a detenu to make an effective representation against the orders.

Requiring clear, germane, and proximate reasons meant that executive officers had to cite some instances of illegal / suspicious conduct as overt manifestations of any ideology which they considered prejudicial to public order — i.e., to flesh out an inherently vague notion. What the J&K High Court has done is taken this close connexion between objective real-world anchors for a subjective concept like ideology, and treated it to serious social distancing. Into the resulting gap falls judicial review of preventive detention. Ideology now becomes a blank cheque to be encashed by the executive whenever the circumstances suggest that its “volcano-like” qualities can prove detrimental to the public order; no matter that the most recent overt display of this purported ideology dates back several years. By no longer requiring the executive officer’s subjective satisfaction to have a proximate real-world anchor, judicial review is nearly reduced to its pre-1970s avatar of only checking if procedures are complied with.

The J&K High Court has, seemingly unwittingly, shown us a system that runs on punishing thoughts and beliefs. Only, here, we have no punishment with a trial and courts, but prevention, with the executive serving as judge, jury, and executioner. The only conduct “legally rightful” and sufficiently redemptive to erase the marks of a dissident ideology is an oath of loyalty, and its perpetual performance, subject to the satisfaction of the same authorities.

This time, too, shall pass.

King Menelaus at the Bar of the Indian Judiciary

Mian Abdool Qayoom is the 76-year-old President of the Jammu and Kashmir High Court Bar Association. Since August 5 – the day the constitutional status of Jammu and Kashmir was altered – Qayoom has been undergoing “preventive” detention, under the Jammu and Kashmir Public Safety Act, which authorises detention for upto two years without trial. The ostensible basis of the detention has been that he would “motivate people to agitate against abrogation of Article 370.” Despite ill health (diabetes and a single kidney), Qayoom’s detention was extended last week. And on Friday, the Jammu & Kashmir High Court dismissed a legal challenge to his detention.

Among other things, in its judgment, the High Court took the view that the “subjective satisfaction of the detaining authority to detain a person or not is not open to objective assessment by a court. A court is not a proper forum to scrutinize the merits of administrative decision to detain a person.” This, of course, essentially gives absolute impunity to the State on the issue of detention: if “subjective satisfaction” is the standard, and the Court is not the “proper forum” to challenge detention, then – effectively – the right to personal liberty exists at the absolute discretion and mercy of the government. That, needless to say, makes the right meaningless.

Now what does one say about this? One could say that this line of “reasoning” parrots the executive supremacy logic that was at the basis of the ADM Jabalpur Case – a case that was allegedly buried “ten fathoms deep with no chance of resurrection” by the Supreme Court in 2017, except that ten fathoms is evidently not deep enough for a judiciary that wants to prove itself more loyal than the King (in fact, the High Court judgment quotes a number of cases – both before and after ADM Jabalpur – that foreshadowed and echoed its most notorious lines, including that of preventive detention being a “jurisdiction of suspicion”). After all, when the memo on overruling ADM Jabalpur hasn’t even reached some of the judges of the Supreme Court, how could it be expected to reach the still locked-down Kashmir, where it is anyway too cold for people to exercise their Article 19(1)(d) rights (according to a former Chief Justice of India)? One could say that far from being buried ten fathoms deep, or any fathoms deep, it has by now become abundantly clear that ADM Jabalpur is the dominant logic that that governs judicial action in India today, and that the High Court was at least refreshingly honest in giving that to us straight.

One could say all that, but there probably comes a point at which repetition grows tedious, and is necessary only in order to complete the record, rather than present any new or interesting insight about the workings of the judiciary today. But thankfully, the High Court has also given us something more to think about: it quoted the Greek “thinker” Sophocles, noting that “laws can never be enforced unless fear supports them.”

No quote exists, of course, without context. And a closer look at the context of the Sophocles’ quote that the High Court chose is perhaps more revealing than the actual order. A preliminary point, of course, is that the society that gave us the Melian Dialogue might not be the most reliable contemporary guide to ideas of law, justice, and morality; indeed, one would hope that the concept of law would have progressed somewhat in the 2500 years since the time of the classical Greeks.

More than that, however, is the specific background of the quote. These words – that the High Court paraphrases – are found in Sophocles’ play, Ajax. And Sophocles puts them into the mouth of Menelaus – the (semi-mythical) Greek king other contemporary playwrights denounced for his arrogance and cruelty, and who initiated a destructive and pointless ten-year war because his wife left him for another man. Not, perhaps, the model statesman whom you want expounding on the idea of law. And if the High Court had paid attention to Menelaus’ speech where the quoted words occur, a few lines above it would have found the following words: “‘tis a sign of wickedness, when a subject/ deigns not to obey those placed in power above him.” This is unsurprising: equating law with fear is the hallmark of societies where power flows from hierarchy and is kept by force.

Notably, in both cases, Menelaus s referring to the conduct of (the now dead) Ajax, and is refusing permission for burying his body. Ajax, in turn, had killed himself after going on a killing spree, triggered by his rage at being adjudged only the second-best Greek warrior when it came to massacring soldiers during the just-concluded Trojan War. After a lengthy dispute between Menelaus and another character, Teucer, the body of Ajax is indeed buried.

The literary, dramatic, and artistic merits of Ajax notwithstanding, here – in essence – is what the play is about: it is the aftermath of a destructive and unjustifiable war of aggression, where a soldier from the army of conquest massacres innocent civilians because he feels that he has not been credited enough for his role in the war, then kills himself, leading to higher officials having an argument – not about the massacre – but about whether his body should be given a burial (finally, it is). The higher official is angry – not because innocent civilians have been killed – but because his “subject” has disobeyed someone “placed in power above him.” But is finally persuaded to overlook the indiscretion, and impunity survives untouched. And it is within this context, this society, and this cast of characters, that we find the words the J&K High Court thought fit to apply to preventive detention in a 21st century constitutional democracy: “laws can never be enforced unless fear supports them.”

Perhaps the High Court did, after all, intend to make exactly this point: that we do live in the world of Ajax and Menelaus, and the world of the Melian Dialogue. Perhaps, then, we should applaud – once again – the refreshing honesty, topped off with a dash of literary flourish.

Or, perhaps the High Court would have been better served by remembering that the Greek army camps outside ruined Troy were not the best models for a constitutional democracy, and looked elsewhere in Sophocles’ ouvre; perhaps the legendary play Antigone, where a guard told another King:

“‘Tis sad, truly, that he who judges should misjudge.”

Mian Abdul Qayoom, meanwhile, remains in jail without trial.

Guest Post: Dimple Happy Dhakad and Normalising Preventive Detention

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


[This is a blog post by Abhinav Sekhri, first published on The Proof of Guilt, and cross-posted with permission.]


“Preventive Detention” is a phrase that is inextricably bound with the history of the Indian Constitution. The Constituent Assembly affirmed the power for future governments to pass such laws, and only later got around to debating the restraints surrounding them. As a result, despite Article 22 having been inserted to serve as the minimal constitutional threshold to check abuse of preventive detention, it has often been treated as a constitutional recognition for the notion that the fundamental right to personal liberty requires restraints “for the good of the people.”


The decision of the Supreme Court in Union of India v. Dimple Happy Dhakad [Crl. Appeal No. 1064 of 2019 & connected petitions, “Dhakad“] shows a clear preference for the latter, mistaken view, over the former. By affirming the use of preventive detention in a situation where no “prevention” was really at stake, while at the same time diluting the high burden usually imposed on the state for requesting preventive detention in such cases, the Supreme Court took a dangerous step towards normalising what was meant to be a measure of the absolute last resort. In doing so, it compounded the slide towards normalising preventive detention already being witnessed across states, which have used this tool to deal with bullying and cattle theft, among other issues. 


Understanding Preventive Detention

Despite the perceived familiarity with preventive detention, it still serves us well to remind ourselves just what exactly is meant by the phrase, and how different this regime is from the normal “punitive” system of criminal justice. 


In the regular course, the police or other agencies can only take steps to restrain personal liberty after some illegal conduct has taken place. There must be something, beyond mere thoughts, to justify why a person should be arrested and thus denied the most basic of freedoms. This regular course is turned on its head under the preventive detention regime. Here, waiting for some conduct to manifest itself is considered a fatal delay, and therefore, the police is allowed to arrest persons merely suspected of engaging in illegal activities, or about to engage in them. 


The dissimilarities with the regular process only increase from this point. In the preventive detention regime, a has no right to be informed immediately about the grounds of arrest and detention, and in some cases might never learn of the grounds if it is against public interest. The detenu can challenge the detention order, but has no right to legal assistance. Further, all hearings take place behind closed doors, robbing a person of the sense of fairness that a public hearing entails. Although one can challenge Detention orders in writ proceedings, the Writ Court can only interfere on limited grounds. 


At its very best, preventive detention is a useful tool to ensure the safety of society. At any other level, it is a convenient means to suppress dissent, disregard individual liberty, and nullify the presumption of innocence. It can very quickly transform into a tool to justify the continued incarceration of “unwanted” persons through a process with minimal procedural safeguards, without ever making efforts to prove their alleged infractions.

 
Preventive Detention in the Ordinary Process

The legal position on passing preventive detention orders against persons already in custody, in connection with cases filed in the regular criminal justice system, is perhaps one of the most peculiar aspects of the Indian criminal process. One would think that since a person is already in custody, the urgency surrounding preventive detention is all but lost. This is not so. 


Time and again, detention orders are passed against persons who are anticipated to be released on bail at any moment. The perceived threat from their release is considered so grave as to justify a detention order anticipating this eventuality. 


The litany of judicial decisions covering this peculiar aspect of our criminal process always struggle to maintain a balance between the interests of security and the interests of liberty. It would be fair to say that a common theme through all these decisions is a requirement that the government must clearly establish that there is an imminent possibility of release, and that there is a grave likelihood of the person returning to the prejudicial activities that had necessitated his arrest/detention in the first place. [SeeRekha v. State of Tamil Nadu, (2011) 5 SCC 244]

Dimple Happy Dhakad 

Having thus fleshed out the basic legal position on these issues, we can now proceed to the recent decision in Dhakad. This was yet another case where persons who had already been arrested under the regular criminal process were made the subject of a Preventive Detention order [Under the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (COFEPOSA)]. Here, the arrests occurred in March 2019 in connection with alleged gold smuggling. Bail applications filed by the accused in April had been rejected once. When the accused filed fresh bail applications in May, then the government authorised the Detention Order. The Bombay High Court set aside the orders (W.P. 2844 of 2019, decided on 25.06.2019), and this decision is what was overturned by the Supreme Court. 


The arguments in Dhakad were on the lines as above. Appealing against the Bombay High Court order, the Union of India laid stress on the gravity of the allegations and the security interests at stake. The respondents/accused strived to show that the detention orders had not been passed with the required degree of care and attention, and had instead been passed in a most routine and mechanical manner. They were assisted by the fact that the Detention order did not even mention anything about an imminent possibility of release, or about the likelihood of the accused persons returning to their prejudicial activities. 


Moreover, in their haste to pass the Detention orders, the authorities had committed basic errors; such as (i) adding documents created after the decision to pass the detention order had been made, as part of the material relied upon for passing the Detention orders and (ii) not supplying the said relied upon material together with the grounds of the detention order, despite the order stating that this material was in fact being supplied. While it was never expressly mentioned in the Supreme Court’s opinion, the fact that the investigation had been ongoing for almost 2 months before the Detention orders were passed was a circumstance that had found favour with the Bombay High Court, to conclude that there was no reason for any delay in them being supplied with the materials upon which the authorities had relied for passing the detention orders.


Issue 1: Non-Supply of Documents

There is limited value in dissecting all that is wrong with the Supreme Court‘s decision in Dhakad, so let us focus on the core aspects. The Court spends great time in telling us that Section 3(3) of the COFEPOSA, and Article 22(5) of the Constitution, have not been breached because all documents were supplied within the statutorily prescribed timeframe of five days. Similarly, it tells us that non-compliance with Executive Guidelines is no grounds for setting aside the Order. Sadly, that is besides the point, because the argument was not about a statutory lapse on part of the authorities or about non-compliance with Guidelines per se. Instead, it was argued that by failing to provide documents, even after specifically noting in the Detention Order that the same are being provided, showed a clear lack of care on the part of the authorities and laid bare the mechanical manner in which the orders were passed. Further, the Supreme Court seems to have ignored the point, that a document prepared after the decision to pass the detention orders was made had found a place in the list of materials relied upon to pass this order, again suggesting that the Detention order had been passed without proper application of mind.


Issue 2: Failure to Consider Pre-Existing Detention 

Which then brings me to the main issue, on the usage of Preventive Detention in cases already being prosecuted under the regular criminal process. The Supreme Court seems to have entirely missed the point about holding the government to a high standard of care in situations where both, the regular criminal process and the extraordinary means of preventive detention, are employed. The recitations of decisions emphasising the urgency of preventive detention, in a case where the accused persons had already been arrested and had been languishing in jail for almost 2 months, is almost laughable if it were not tragic. 


The Court reasoned that the existence of an imminent possibility of release, as well as likelihood of further prejudicial conduct by the accused persons upon release, were issues that depended upon the “subjective satisfaction” of the authority and thus was beyond the scope of judicial review. Now, there is no debate that the scope of judicial review of Detention orders is limited. But, at the same time, it is also true that the Supreme Court has made consistent efforts to expand the possibilities for review to ensure fairness. Two examples are striking. First, the Court judicial created a requirement that the allegation must have a “live link” with the present to justify a need for preventive detention, in a bid to prevent persons being detained on the basis of stale allegations that had not been tested for years [SeeBhawarlal Ganeshmalji v. State of Tamil Nadu, (1979) 1 SCC 465]. Second, the Court also assented to testing the grounds to examine whether they were so arbitrary and vague so as to render it impossible to challenge the Detention order [SeePrabhu Dayal Deorah v. D.M., Kamrup, (1974) 1 SCC 103]. 


This trend of heightened review is what led to the common theme identified in the previous section, of the Supreme Court consistently placing a higher threshold on detention authorities to justify use of Preventive Detention in cases already being processed in the regular criminal process. Requiring that the Detention order explicitly refers to the possibility of release and likelihood of re-offending does not impinge upon the subjective satisfaction of the authority. It only provides a clear basis for assuming that the authority did indeed consider these issues, and prevent the kind of inferential exercises that the Court resorted to in Dhakad.


Post-Script

The most telling circumstance in Dhakad only emerged after the Detention orders were passed and thus is not expressly mentioned in the Supreme Court decision: The customs authorities failed to complete their investigation within the statutorily prescribed time limit, entitling Dhakad and others to statutory bail under Section 167(2), Cr.P.C.. The only reason why they were not released was the Detention orders. Thus, the customs authorities had used Preventive Detention to cover their inability to finish an investigation in time, and also deny the accused yet another vested right in the criminal process. It is practice that has been chided by the Delhi High Court on different occasions (Seehere, and here), but has not been the subject of consideration in any reported Supreme Court opinions that I could find. 


Thankfully, the opinion in Dhakad does not expressly record that the possibility of being released on statutory bail is a compelling enough reason to invoke Preventive Detention. But this is perhaps the only positive note that the decision strikes. Yet again, the Supreme Court ended up being drawn in by the lure of preventing a politically undesirable outcome — the possibility of releasing alleged gold smugglers on bail — and in the process ended up glossing over the procedural safeguards that are the bedrock of the liberty it is constitutionally committed to protect.


 

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

(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 GopalanachariKavita, 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

(This is Part III of Abhinav Sekhri’s series on preventive detention under the Constitution, cross-posted from Proof of Guilt).
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

(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.)

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

(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)

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.