Guest Post: Detention by SMS – A Caution Against Short-Circuiting Article 22 Safeguards

(This is a guest post by Varun Ahuja, and cross-posted from the Proof of Guilt blog, where it first appeared.)

---

A Division Bench of the Madras High Court, in a case titled Harini v. State of Tamil Nadu [HCP No. 2679 of 2022 decided on 28.04.2023], quashed a preventive detention order under the Tamil Nadu Goondas Act, 1982, holding that informing the wife of the detenu about his detention through a Short Messaging Service (SMS) message is improper and violates Article 22(5) of the Constitution (Para 9).

Article 22(5) provides two valuable rights – a right to be informed of the grounds of detention and to be afforded the earliest opportunity to make a representation against the preventive detention order. This post addresses the problems with short-circuiting the first right, namely, to be informed of the grounds of detention; especially, in context of the Tamil Nadu Goondas Act. Additionally, it briefly touches upon the absence of legal aid to detenus under preventive detention and explores the inter-connectedness of the two rights under Article 22(5).

The High Court’s Decision in Harini

The challenge of habeas corpus in Harini was to an order dated 30.11.2022, passed by the Commissioner of Police, Avadi City, Chennai, to detain the petitioner’s husband, Ezhilkumar @ Ezhil aged 26 years, under the Goondas Act. A prior case, which formed the basis of the order, was Crime No. 897 of 2022 registered at E-5 Sholavaram Police Station, for offences of rioting and robbery (among others). Therefore, the detenu came under the definition of a ‘Goonda’ as per Section 2(f) of the Act.

The date of the detention order assumes significance, since the bail application of Ezhil was filed just a day prior, i.e. on 29.11.2022, at the Principal District Court, Tiruvallur. It was later dismissed on 02.12.2022. The passing of detention orders against individuals already in custody is not uncommon, and has been upheld by the Supreme Court as lawful [recently in Union of India v. Dimple Happy Dhakad, (2019) 20 SCC 609)]. Nevertheless, the habeas corpus petition was filed and registered with the High Court on 22.12.2022. It took little over four months for it to be finally decided on 28.04.2023.

To reach its decision, the High Court relies on two earlier decisions of the Division Bench of the Madras High Court — Akilandeswari v. State, rep. by Secretary to Government, Home, Prohibition and Excise Department, 2008 (3) MLJ (Crl) 744 & Ganesh @ Lingesan v. State of Tamil Nadu, 2012 SCC OnLine Mad 2187. In both cases, Akilandeswari & Ganesh, information about detention was conveyed bytelegram but a copy of the telegram was not supplied to the detenu. Additionally, in Akilandeswari, it was contended by the State that the detenu’s family was informed; however, no material was placed on record to substantiate the claim. In both cases, the High Court came to the conclusion that there was an infraction of Article 22(5) and therefore, the detention order was bad in law.

In Harini, the State argued that the grounds had been communicated through an SMS to the detenu’s wife on a phone number based on details provided by the detenu himself. Furthermore, it was argued that no representation was made in this regard and the ground of non-imitation has been put forth for the first time (Para 5). The High Court rightly rejected these contentions and specifically observed that the ‘grounds booklet’ bore no signature to show that the phone number belonged to the petitioner.

Goondas Act and the Necessity of Proper Communication

A Look at the Statistics

The Tamil Nadu Goondas Act was enacted in 1982 and covered a wide ambit – involving Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders & Slum Grabbers – for preventing activities ‘prejudicial the maintenance of public order’. Over the years, through various amendments, its scope has been expanded further to include Forest Offenders, Video Pirates, Sand Offenders, Cyber Law Offenders & Sexual Offenders (For a detailed history and application, see here, here & here).

The frequent resort to using preventive detention in the State of Tamil Nadu is clear from looking at the numbers from the NCRB & SCRB. The Prison Statistics Report of 2021 shows that a little over half of detenus (51.2%, 1,775) in the country were in the State of Tamil Nadu. Crime Review 2021, a Report published the Tamil Nadu State Crime Records Bureau, shows that out of the total 3194 persons detained in the year 2021, 2843 (89%) persons were detained under the Goondas Act. Furthermore, in a study of the habeas corpus petitions decided by the Madras High Court (both Benches) from the year 2000 till January 2022 (total of 7,448 cases over 22 years) under all preventive detention laws, it was revealed that 95% of the cases (7,096 out of 7,448) emanated from the Goondas Act.

To better understand the implication of Article 22(5) against this prolific use of Goondas Act, it is important to see what kind of people are detained under the law. The profile of detenus can be ascertained from the NCRB’s report in Prison Statistics India:

• Educational profile – 417 (23.4%) were illiterate, 700 (39.4%) had education below Class X and 369 (20.7%) had education above Class X but below Graduation;
• Domicile – all 1775 detenus were from within the State;
• Caste profile – 657 (37%) belonged to Scheduled Castes, 32 (1.8%) belonged to Scheduled Tribes, 808 (45.5%) were from Other Backward Classes;
• Age profile – 762 (42.9%) detenus were between 18-30 years & 647 (36.4%) detenus were between 30-50 years of age.

(Analysis for the years 2016 to 2020 can be found in this Study at page 4 and shows similar results.)

It can be concluded that people being detained are usually young, less educated and from marginalized communities. In these circumstances, it becomes even more crucial that the ‘communication’ mandated by law is scrupulously adhered to and the duty to ensure that grounds are effectively communicated must necessarily rest with the State.

Absence of Legal Aid

Effective communication of the detention order and grounds of detention is also necessary because, as a rule, the Constitution under Article 22(3) envisions a denial of the right to consult an advocate to a person under preventive detention and provides a positive mandate on the detenu to make a representation against their detention. Section 11(5) of the Goondas Act implements this mandate and states that a person is not entitled to appear through a legal practitioner before an Advisory Board. 

This denial of the right to counsel was, unfortunately, upheld by the Supreme Court in A.K. Roy v. Union of India, (1982) 1 SCC 271; only adding a caveat that if the detenu is denied legal representation before the Advisory Board, the Government cannot be represented by a Counsel either; moreover, it added that the detenu can be represented by a ‘friend’ of the detenu, so long as they were not a legal practitioner.

Be that as it may, a representation before the Advisory Board is one thing, but to even understand and formulate an ‘effective representation’ the detenu would require assistance to rebut the grounds supplied by the detaining authority, especially if the detenu is less educated or illiterate. So that the representation remains ‘effective’. Over time, the Supreme Court has incrementally developed the right to ensure that the procedure of detention remains fair and reasonable as far as possible. For example, the Court has held that the grounds that are supplied should not be vague, non-existent or irrelevant, stale, suffer from mala fide, should be in a language the detenu understands, and the documents that are relied upon by the detaining authority should not be illegible or blurred.

Additionally, a denial of the right to consult a lawyer shifts the burden on the family members of a detenu, who are constrained to approach the High Court, seeking a writ of habeas corpus. As was the case in Harini; it was the wife of the detenu who approached the High Court, without adequately agitating their case by way of an effective representation.

Two Connected Rights

The Supreme Court recognises that preventive detention, by its nature, is ‘repugnant to democratic ideas and an anathema to the rule of law’. It has, time and again, stated that procedural safeguards under preventive detention have to be followed strictly. Reiterating the principle recently, the Supreme Court held that preventive detention laws in India are a ‘colonial legacy’ and have the ability to ‘confer arbitrary power to the State’. It went on to observe that every procedural rigidity must be followed in its entirety by the Government and the Court’s duty is not only of protecting civil liberties of an individual or the society, but also of ‘preserving our Constitutional ethos’.

The two safeguards that are important for our consideration are enshrined under Article 22(5) of the Constitution. Article 22(5) runs as follows:

When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. [Emphasis Supplied]

Professor M.P. Jain states that these two rights – communication of grounds and the right to make representation – collectively are ‘natural justice woven into the fabric of preventive detention by the Constitution’ (See M.P. Jain, Indian Constitutional Law, 8th Edition at Page 1241). The inter-relatedness of the two rights had also been recognised by the Supreme Court as far back in 1975 in Khudiram Das v. State of W.B., (1975) 2 SCC 81 (Para 6).

Amongst the two, the safeguard of communicating the grounds of detention becomes more important since the other right, namely, making a representation against the detention, can only be realised if the grounds (along with the relevant material) are supplied to the detenu. This has also been acknowledged by the Supreme Court in Bhut Nath Mete v. State of W.B., (1974) 1 SCC 645, observing that “communication of facts is the cornerstone of the right of representation and orders based on uncommunicated materials are unfair and illegal.” 

It is axiomatic that unless a detenu knows the reasons why his liberty has been curtailed, there can be no effective representation against such detention. It is apposite to recall Justice H.R. Khanna’s timeless dissent in ADM Jabalpur: “the history of personal liberty is largely the history of insistence upon procedure.” And it still holds true as demonstrated in Harini. The procedural safeguards under Article 22 are the bare minimum of what is required to ensure that the State does not use its exceptional powers arbitrarily. It is only the stubborn insistence on following procedure that can help reduce, or at least keep in-check, the abuse of powers by the State.

“The Past is a Foreign Country”: Illegal Detention and Redress before the Supreme Court of Kenya

In a judgment delivered yesterday (Mwangi Stephen Muriithi vs Hon. Daniel Toroitich Arap Moi), the Supreme Court of Kenya concluded a long-running dispute between two men who – literally – fought each other to the grave (at the time of the judgment, both parties were deceased).

The facts of the case went back to 1982, when Daniel Arap Moi was the President of Kenya. Mwangi Stephen Muriithi was arrested from his residence. His wife filed a habeas corpus petition before the High Court. At the High Court, the State produced a detention order under the (now repealed) Preservation of Public Security Act and the Public Security Regulations of 1978. Regulation 6.1 of these Regulations stated that “if the Minister is satisfied that it is necessary for the preservation of public security to exercise control, beyond that afforded by a restriction order, over any person, he may order that that person shall be detained.” The legality of the detention order was nonetheless challenged, on the basis – inter alia – that the Regulations had lapsed. However, the High Court rejected this challenge, holding that Muriithi had been “detained in lawful custody under the Preservation of Public Security Act and Regulations.” (para 7)

Time passed. In 2002, President Moi was voted out of office. And in 2009 – in a greatly changed political climate – Muriithi filed a constitutional petition against Moi, arguing that the detention had violated his constitutional rights to liberty and property (one interesting twist in this case was that Muriithi and Moi were business partners, and Muriithi alleged that Moi had detained him in order to dispossess him of his proprietary rights).

Muriithi won in the High Court (in a judgment that included a fascinating analysis of horizontality under the new Kenyan Constitution), but lost in the Court of Appeal. The case came before the Supreme Court. The Supreme Court agreed that the 1982 habeas corpus petition did not foreclose further litigation with respect to the breach of constitutional rights, and that, indeed, Muriithi’s constitutional rights had been violated. However, as Muriithi’s detention had been an act of State, he ought to have impleaded the Attorney-General, instead of proceeding against the President in his personal capacity. On grounds of misjoinder, therefore, the Supreme Court – by a narrow 3-2 majority – declined to grant relief.

Some scholars have critiqued the majority judgment for its excessive formalism. In this blog post, I want to flag four interesting issues – one from the majority, and three from the dissenting opinions of Ibrahim and Njoki JJ.

First, the majority considered the interlinkages between habeas corpus and preventive detention. The majority held that as the purpose of a habeas corpus petition was solely to produce an individual before the Court, so that it could be verified whether his detention was formally valid under law, it did not preclude further litigation alleging that the detention violated that individuals constitutional rights (such as the right to liberty, to fair trial, and so on) (para 68). This is in itself important, as it prevents detention laws from turning into self-contained blackholes: there could be a formal law that authorises detention, which could still violate constitutional rights and fundamental freedoms. In other words, detention under law would not preclude the Court from applying its usual constitutional scrutiny in adjudicating rights violations. One may compare this with the Indian courts’ feather-light scrutiny of detention orders – and, in particular – the refusal to apply the doctrine of proportionality to cases of detention.

But then the majority – in my view – did something even more interesting. In paragraph 71, it noted:

… the Preservation of Public Security Act empowered the Minister responsible for internal security, to issue an Order for the detention without trial, of a person who in the opinion of the Minister, was a danger to public security. Hence, the objective of the writ of Habeas Corpusis to secure the liberty of a person, while that of the Preservation of Public Security Act was to achieve the opposite; that is, to limit the liberty of a person. The procedure under the former, is judicial while the one under the latter, was administrative.  The effect of the aforesaid Act therefore, was to render the writ of habeas corpus inoperable. At the time of the deceased’s detention, what was produced before the Court following an application for Habeas Corpus, was not a body, but of a Copy of an Order, ousting the Court’s authority to inquire into the legality of the deceased’s detention.

In other words, the Court held that the effect of the Public Security Act – a preventive detention law – was to “render habeas corpus inoperable.” Note that the Court was not talking about formal inoperability here. Habeas corpus was not explicitly suspended. But it was effectively made useless by virtue of a preventive detention law. What the Court was essentially saying, therefore, was that in effect, preventive detention laws and the habeas corpus cannot co-exist: the moment you have a preventive detention law, you are nullifying effective habeas corpus. Going back to first principles, what the Court seemed to be getting at here was that the basic purpose of a habeas corpus writ was release from unlawful custody. Preventive detention laws simply turned what would otherwise have been unlawful custody (i.e., detaining someone without them being booked or charged for an offence) into lawful custody. As pointed out above, in a formal sense, they left habeas corpus standing; but in a real sense, the writ became pointless, because to get around it, all you had to show was a formally, legally valid detention order under the Act.

But the consequences of this are important. As the majority itself noted, the Kenyan Constitution now contains a non-derogable fundamental right to habeas corpus. It then follows from this that under the Constitution, there cannot exist a constitutionally valid preventive detention law, under any circumstances. As far as I am aware, this has not been explicitly held before. Thus, even through its seeming formalism, in my submission, the majority advanced jurisprudence further in the direction of liberty.

Secondly, in his dissenting opinion, Ibrahim J. looked into the important question of burdens and standards of proof: had Muriithi sufficiently demonstrated that business loss? The question turned upon who bore the burden of proof. Crucially, Ibrahim J. noted that:

… commonly where there are human rights violations by the state, or by persons utilizing state machinery, what frequently happens is that victims of such violations have their access to vital information hampered. This is often done in order to curtail the victim’s ability to effectively pursue challenges in court. It is why several international human rights bodies have recognized, in a general sense, the merits of allocating the burden to the state where the state has greater access to information. For instance, the Inter-American Court held that the state’s defense cannot rest on the impossibility of the complainant to procure evidence, when it is the State that controls the means of clarifying facts (Bamaca-Velasquez v. Guatemala, Case No. 11,129, IACtHR, Merits (Nov. 25, 2000), para. 152). The European Court in the case of Betayev and Betayeva v. Russia, App. No. 37315/03, ECtHR (May 29, 2008) held that where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of documents, the burden shifts to the government to provide a satisfactory and convincing explanation of how the events occurred. (para 105)

It is difficult to understate how important an observation this is. It is a well-known fact that especially at times – and in areas – of conflict and human rights violation, holding the State to account is a difficult, if not impossible, task, precisely because access to information and to evidence is under State control. One will, of course, remember the recent Indian Supreme Court judgment in Himanshu Kumar, where the Court not only exonerated the State in a petition seeking investigation into extra-judicial killings, but jumped upon the alleged insufficiency of evidence to impose costs upon the petitioner, as well as suggest that they be prosecuted. Ibrahim J.’s clear articulation of the principles at stake – and the wealth of precedent – in his opinion demonstrates once again how, on core civil rights issues, Indian jurisprudence is regressing at a terrifying pace.

That detour apart, what is refreshing here, of course, is an acknowledgment one rarely sees in judicial opinions: that of the structural imbalance of power between the State and the individual, especially in terms of control over access to information and evidence, and the role of the Court in redressing that imbalance in order to ensure the true existence of a “culture of justification.”

Thirdly, Ibrahim J. referred in some detail to the political situation prevailing in 1982. In paragraph 107, he observed that:

… it is well recorded that President Moi was all powerful and had control over branch of government. His was a dictatorial state. Further, it is well documented that Former President Moi used arrests and detention without charge to repress his opponents and deemed adversaries in the years following the attempted coup in 1982 as well as throughout the struggle for multiparty politics.

Therefore:

From this recorded history it would be reasonable to believe the Appellant’s account that the former President was not only involved but was the author of his detention for a period over three (3) years. (para 109)

For Ibrahim J., therefore, the reality of State power at the time had to prevail over the formal distinction between “acts of State” and the President’s own acts. In other words, the Court had to take into account – particularly when it came to an authoritarian context – the fusion of State and personal power, and fashion remedies for rights violations based on that understanding. This, again, is fascinating reasoning, and from which there is a lot one may learn. As Ibrahim J eloquently noted:

The authority the President had at the time, the nexus created by the detention Order, the resultant interference of the appellants person liberty and the deprivation of his right to property are too glaring for me sitting on this Bench to turn a blind eye. (para 112)

And finally, Njoki Ndungu J., in her dissent, looked back into the past, and observed that “it is important for the State to be consistently aware that past conduct of its officials and agents will no longer remain unpunished.” (para 136) In her view, the purpose of litigation such as this was not merely individual redress, but the broader goal of ensuring that “never again” was a vow that was constantly renewed, including through litigation and the courts: a repudiation of the oft-stated dictum, “the past is a foreign country.” In particular, her focus on not just the State, but of “officials and agents” affirmed that the violation of rights is not merely the function of impersonal, abstract State power, but of individuals who exercise that power; and the purpose of rights litigation is not merely to hold the abstract entity of the State to account, but also the individuals who have used the State as a vehicle to abuse power.

Ultimately, of course, the majority view prevailed, and the now-deceased Muriithi did not get relief. However, as we have seen, there is a lot in both the majority and the dissenting opinions that repays close study, and lines of thought and argument that could form the basis of future, progressive jurisprudence. It will be interesting to see what path that jurisprudence does take.

The Madras High Court’s Judgment in Sunitha vs Additional Chief Secretary – II: Waking Up to the Abuse of Preventive Detention Law [Guest Post]

[This is a guest post by Varun Ahuja.]

---

On 14^th November 2022, a Division Bench of the High Court of Madras delivered a scathing judgement indicting the State for misusing the preventive detention law. Titled Sunitha v. State [HCP(MD) No. 1710 of 2022], the Court quashed two preventive detention orders passed under the Tamil Nadu Goondas Act, 1982. Both the Orders were quashed on the ground that the activities alleged did not fall under the purview of disturbance to ‘public order’ (Para 41 & 56). Notably, the Court recognized that repeated illegal detention orders would amount to a constitutional tort (Para 26) and awarded a compensation of Rs. 25,000 in one of the cases to be paid by the Additional Chief Secretary, who was the detaining authority in the case. This was not the first time that the Madras High Court awarded compensation for illegal preventive detention. In September 2022, the Court awarded 5 lakhs compensation to the detenu who was kept in illegal custody for 128 days after the Advisory Board opined that there was no sufficient cause for their detention (Manokaran v. State, HCP. No.297 of 2022)

The judgement has been discussed on this blog before. It has been correctly lauded for recognizing a pattern of abuse by the executive and for providing a remedy (compensation) in cases of illegal preventive detention orders. This post will primarily deal with the use of data by the Court to reach the conclusion that the State is misusing the law of preventive detention. Additionally, it will compare another judgment from the Manipur High Court, which conducted a similar exercise, but stopped short of providing substantial remedy to the detenu.

Dearth of Data

It is settled law that the powers of preventive detention are extraordinary in nature and cannot be used in place of ordinary criminal procedure. But how does one prove that the law is being misused by the State? The power to detain a person preventively has been in operation ever since India became an independent Country (and even before). However, there has always been a vacuum with respect to data on the number of persons being detained. Earlier, fragments of the data could have been accessed through Questions in Parliament (See here and here) or through Parliamentary debates (See Columns 9981-82). It was only in 2017 that the National Crime Records Bureau (NCRB) started publishing data on the number of persons detained every year.

In 2017, NCRB started publishing statistics on the persons detained under the various preventive detention laws in its Crime in India Report. A plain reading of the total number of persons detained show the rise in the use of preventive powers of the State. On an average, the State detains close to ninety-five thousand people under various preventive detention laws every year.

Year	No. of persons Detained
2017	67,084
2018	98,768
2019	1,06,612
2020	89,405
2021	1,10,683

Recently the Supreme Court, in Mallada K Sriram v. State of Telangana, 2022 SCC OnLine SC 424, highlighted the abuse by the State of Telangana of its Goondas Act, 1986 and termed its repeated use ‘a callous exercise of the exceptional power of preventive detention.’ In that case, too, the Court made use of data and noted that:

It is also relevant to note, that in the last five years, this Court has quashed over five detention orders under the Telangana Act of 1986 for inter alia incorrectly applying the standard for maintenance of public order and relying on stale materials while passing the orders of detention. At least ten detention orders under the Telangana Act of 1986 have been set aside by the High Court of Telangana in the last one year itself. [Emphasis Supplied]

The High Court refera to this judgement (Para 8) and goes much further in conducting a granular exercise to point out the abuse of power by the State.

High Court’s Analysis

The Court relies upon the Prison Statistics India Reports published by the National Crime Records Bureau (Para 5) to show that the State of Tamil Nadu has had the highest numbers of detenus since 2011. However, the Prison Statistics only show how many detenus were in jail as on 31st December of the year the Report is being published and not the number of detention orders being passed each year. To buttress their point further and show the frequent use of the law, the Court relies upon the ‘Crime Review, 2020’, a Report published by the Tamil Nadu State Crime Records Bureau which indicated that 84.3% of all detentions in the State (2457 out of 2913 orders) were passed under the State Goondas Act (Para 10).

A source of dismay for the Court seems to be the statistics with respect to habeas corpus petitions disposed by the Madurai Bench from January 2022 till 31 October 2022 (Para 17). The results from this dataset is strikingly similar to a larger study conducted of the habeas corpus petitions decided by the Madras High Court (both the Benches) from the year 2000 till January 2022 (total of 7,448 cases over 22 years) under all preventive detention laws operational in the State. The study revealed that an overwhelming 95% of the cases (7,096 out of 7,448) emanated from the Goondas Act; in the Court’s dataset this proportion was 72% (961 of 1,332 cases filed). The Study states that 87.9% of the petitions (6,547 out of 7,448) were ‘successful’ i.e. the detention order was rendered illegal; the Court has a similar finding of 84% of the petitions decided (598 out of 708). In the Court’s data for the year 2022 there was not a single detention order which was upheld on merits; the Study paints a similar picture showing only 1.8% of the cases (136 out of 7,448) which are allowed on merits.

An important objective of the Study was to find how much time the High Court took in deciding a habeas corpus petition – arguing that the blame for violating personal liberty lies on the doors of the Executive as well as the Judiciary. Under the Goondas Act, the maximum period of detention is prescribed as 12 months (Section 13). The study showed that calculating from the date of filing of the petition, the Court, on an average, took 141 days (a little less than 5 months) to decide a case and in its dataset, at least 30 cases were dismissed as infructuous due to the expiry of the detention period and 722 cases were dismissed as the detention order was revoked by the Government (collectively amounting to 10% of the cases). On the other hand, the Court’s dataset shows that at least 15.5% of all the cases (110 out of 708) were disposed as ‘closed’ i.e. infructuous owing to time and revoked by the Advisory Board (Para 18).

The departure in Sunitha’s casefrom the other judgements challenging detention orders has been to not overlook the significance of this delay but to acknowledge it and provide for practical remedy. The Court begins the judgement in Para 3 with the lament that orders in such cases take ‘at least 4-6 months’ to be decided ‘owing to the existing backlog of cases’ (reiterated in Para 15). This acknowledgement is important because a speedy disposal of such petitions will help keep the State in check and prevent wilful abuse of its extraordinary powers.

In a Similar Vein

It is not the first time a Court has used data in a challenge preventive detention order to prove indifference of the State. While the Supreme Court in Mallada provided numbers of detention order quashed, another judgement from the High Court of Manipur had conducted a detailed analysis on why detention orders were being routinely quashed.

In Ningthoujam Yamba Singh v. State of Manipur, 2018 Cri LJ 466, the Manipur High Court was considering a detention order passed by the District Magistrate under the National Security Act, 1980. The detenu in this case was a Rifleman of Army Supply Corps (ASC) and was arrested in a case of kidnapping and extortion when the detention order was issued. The Order was quashed because even though it recorded that there is a likelihood of release of detenu on bail, no material was placed before the detaining authority that would indicate the same (the Court relied upon Union of India v. Paul Manickam, (2003) 8 SCC 342)

The Court went on to tabulate details of 39 cases (Para 16) where it had quashed the detention order on the identical ground – non application of mind as regards the satisfaction of the detaining authority that the detenu is likely to be released on bail in near future. It also pointed out that in spite of at least 4 previous judgements (W.P. (Cril). No. 37 of 2013, W.P. (Cril) No. 37 of 2016, W.P. (Cril) No. 35 of 2016 & W.P. (Cril) No. 36 of 2016), where the Court had passed directions to the Chief Secretary of the State to circulate the judgement laying down the correct law, the officials were still passing illegal orders (Para 21-23). The Court even registered a suo-moto case since the detenu in that case was affiliated with the Army and continued to be in its employment even after detention orders were issued against him. The case was titled In Re Detention Under National Security Act, 1980, PIL 28/2017 and the decision date as shown on ecourts is 20-06-2018; however, no judgment is uploaded by the Court, nor is it available on any other website.

The Manipur High Court, however, left the Sate with a warning:

28. It may be also noted that this Court may be constrained to pass appropriate orders in future against those persons responsible for issuing defective detention orders by way of imposing exemplary costs who continue to issue such defective orders as these defective orders may amount to illegally detaining persons and violating their Fundamental Right as guaranteed under Article 21 of the Constitution. [Emphasis Supplied]

However, this warning has been reiterated by the same the Court again and again quoting the same observations from Ningthoujam Yamba Singh but no action has been taken. Therefore, it is in this context that the Madras High Court’s judgement in Sunitha does not pay lip-service to the cherished right of personal liberty but ensures that the State will have to suffer consequences for its wilful disregard of the same. Only time will tell if compensation is deterrent enough to prevent abuse of the powers but it is a welcome change from the current status quo of absolute impunity.

Preventive Detention, State Abuse, and an Unconstitutional State of Affairs: The Madras High Court’s Judgment in Sunitha vs Additional Chief Secretary

On 14th November 2022, a division bench of the Madras High Court handed down an important judgment on the subject of preventive detention (Sunitha vs Additional Chief Secretary). The High Court examined – and set aside – two preventive detention orders passed by the State, under the Tamil Nadu Goondas Act. There are three significant features of the judgment, that merit careful study.

A Pattern of Abuse

The Court began by recounting its experience of “scores of habeas corpus petitions” against preventive detention orders being filed every day, which “are inevitably allowed”, albeit after 4-6 months, because of the backlog of cases (paragraph 2). The Court elected to go deeper into the issue, and consider statistics. Consulting prison statistics, it found that Tamil Nadu had the maximum number of people in detention, for every single year between 2011 and 2021 (rising to 51% of the total number of detentions in the country). The Court observed that this could either mean that the state was descending into lawlessness, or that the state was abusing its ‘jurisdiction of suspicion’ (paragraph 6). Given that an overwhelming number of preventive detention orders (86%) were eventually set aside, and indeed, not even one was confirmed, option 2 was evidently more likely. The Court therefore observed that, enabled by the vague provisions of the Goondas Act, “preventive detention has become an instrument of convenience whereby such elements are dealt with on the sure knowledge that once a detention order is passed, such persons are bound to be jailed for at least 3-6 months, pending reference to the Advisory Board or a challenge before this Court by way of a petition for habeas corpus.” (paragraph 13)

Remedies

Having established this “pattern of abuse,” the Court came to the issue of remedies. It noted that “the time has now come for this Court to explore the possibility of awarding damages in cases where detention orders are set aside after finding that it was invoked on wholly extraneous and irrelevant grounds, which amount to a conscious abuse of power.” (paragraph 24) The Court held that such “indifferent” detention orders would amount to a “constitutional tort”, and therefore give rise to a claim for damages (paragraph 26). Following the judgment in Rudul Shah, the Court characterised this as a public law remedy, flowing from Article 21 of the Constitution.

Enforcement

The Court then went on to find that in the first of the two cases before it, the trigger for compensation had clearly been met. The Preventive Detention Order had been issued on the basis that the detenue had abused a public servant – but given that the said abuse had taken place in a private space, it was the evident that the threshold requirement for the application of the Goondas Act – a threat to public order – had not been met, given the constitutional definition of “public order” (paragraph 35). The Court held that this clearly amounted to a “casual invocation” of the preventive detention law would violate Article 21 of the Constitution (paragraph 38). And because it was a constitutional violation, it overrode the Goondas Act “good faith” immunity for agents of the State. Crucially, the Court noted that this would be necessary in cases of “misuse of the preventive detention law against a detenue who could have been proceeded against under the available penal laws.” (paragraph 40) This is important, because the Court’s focus was not on proving ill-intent or malice against State officials (an almost impossible task), but the fact that preventive detention had been invoked in a case that could evidently have been dealt with under ordinary law. Indeed, this was the basis on which the Court set aside the second detention order as well (although it did not impose costs): in the case, the detenue had abused and bitten the finger of a police constable. The Court noted that while this was a heinous act, there was no reason why it could not be dealt with under ordinary penal law, without the need to invoke preventive detention provisions. The order was, therefore, set aside.

Comment

Compensation for wrongful arrest and detention is a very under-developed concept in India, with courts almost never holding the State to account (indeed, the Supreme Court notoriously refused a compensation claim from people who had been imprisoned for a decade until they were acquitted), on the basis that doing so would “demoralise” the police and the security agencies. In that sense, the High Court’s judgment is welcome, as are its strong remarks about the abuse of the preventive detention law. Also welcome is its focus on asking whether the alleged offence in question can be dealt with under ordinary law. It is worth remembering that preventive detention is meant to be an exception to the normal rules of criminal law, which frown upon imprisoning a person not for something they have done, but for something they might do. That principle, however, has long been lost sight of; the High Court’s judgment reiterates that crucial distinction between ordinary criminal law and exceptional preventive detention law, and warns against blurring the lines between the two.

That said, a few points arise. The first is that the High Court invoked the doctrine of “constitutional tort”, but it could do with more fleshing out. The contours of the doctrine vary in different jurisdictions (for instance, US constitutional tort is distinct from Irish constitutional tort); thus, the nature of the doctrine, and the legal standards that it encompasses, require some development; perhaps that is for a case for another day.

Secondly, there is the question of future enforcement. As noted above, our constitutional culture is yet to normalise the concept of compensation against the State for wrongful arrest; consequently, it is doubtful how effective the High Court’s judgment will be as setting out an effective and continuing deterrent. For this reason, I believe that the High Court could have gone further than it did. Once it had found – as it did – that there was a statewide pattern of abuse, it need not have restricted its finding to the case before it. Previously, on this blog, I have discussed the doctrine of an unconstitutional state of affairs, defined in the following way:

The unconstitutional state of affairs is a legal ruling that allows the Constitutional Court to acknowledge the failure of both the Legislative and Executive branches of government to enforce public policies against widespread and systemic violation of fundamental rights, thus justifying a judicial intervention in order to combat the structural causes of the violations and to put everything back in order with the Constitution. 

It is evident that the High Court’s own analysis pointed to the existence of an unconstitutional state of affairs: it found that preventive detention was being repeatedly invoked for frivolous purposes, and effectively to keep people detained for four to six months, until the order would be set aside by the advisory board or by the court. This was evidently a “widespread and systemic violation of fundamental rights.” The declaration of an unconstitutional state of affairs, therefore, would have enabled the Court to address structural causes through tools such as the continuing mandamus, where the bench in question could have commenced continuing oversight over the State’s use of preventive detention, with the possibility of more compensatory orders for breach. This, I submit, would be a more effective deterrent against State impunity.

And thirdly, it is questionable whether the actual remedy is “punitive” or deterrent in any meaningful way. The High Court ordered compensation of Rs 25,000, which – in practical terms – is nothing at all. In order to prove an effective deterrent, it is evident that the compensation amount must be increased by several degrees.

Conclusion

In sum, therefore, the High Court’s judgment breaks important new ground, and is a laudable first step towards combating State impunity in the invocation of preventive detention laws, and the normalisation of preventive detention laws. However, future judgments can now build upon this platform, and go further.

Guest Post: Judicial Review of Preventive Detention Orders – The Supreme Court’s Progressive Judgment in Mallada v State of Telangana

[This is a guest post by Varun Ahuja.]

---

“…But, Sir, what the Government is after is not the power to take preventive action; what it is after is immunity from the responsibility to prove guilt or intent before a court of law. What they want is to substitute suspicion for evidence, substitute the pleasure of the executive for conviction by the judiciary. The Bill, therefore, is not only an attack on the citizen’s rights, but is also an attack on the judiciary, the power of the judiciary to protect the citizen.”

– Shri Ravinder Varma, Lok Sabha Debates, 15 December, 1980, Debate on the National Security Bill, 1980

Introduction

On 4^th April 2022, a two-judge bench of the Supreme Court delivered a judgment titled Mallada K Sri Ram v. State of Telangana (“Mallada”) quashing a preventive detention order under Section 3(2) of the Telangana Prevention of Dangerous Activities Act, 1986 (“TDA” or “the 1986 Act”). The detenu had filed an appeal against the Telangana High Court judgment which had upheld the order of detention. The order was quashed because it was passed on ‘stale grounds’ and that there was non-application of mind by the detaining authority; specifically, by the time the order of detention was passed, the detenu was already on bail and no incident had happened even after the bail conditions imposed had lapsed.

In India, the Executive enjoys a lot of powers when it comes to preventively detaining individuals to ‘prevent’ a commission of an offence. There are four central laws (Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, National Security Act, 1980, Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 and Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988) under which authorities can preventively detain individuals, and the States have their own power to enact laws authorizing preventive detention. The Parliament, under Entry 9 of List I, is authorized to make laws providing for preventive detention on subject of ‘defence’, ‘foreign affairs’ or the ‘security of India’. Simultaneously, the States can make laws under Entry 3 of List III for reasons connected with ‘security of a state’, ‘maintenance of public order’, or the ‘maintenance of supplies and services essential to the community’. The constitutionality of these terms – vague and over-broad in their own right – was upheld by the Supreme Court in A.K. Roy v. Union of India. The Court admitted that the terms might be vague and incapable of a precise definition; but refused to strike down the law (National Security Act, 1980) on the ground of vagueness and uncertainty and ‘hoped’ that they will be applied and interpreted narrowly. Furthermore, judicial review of detention orders is largely limited to only procedural grounds barring few exceptions in certain cases in order to ensure some fairness and uniformity.

Three important aspects set Mallada apart in the Supreme Court’s preventive detention jurisprudence. First, the Chandrachud J rightfully holds that mere apprehension of breach of law and order will not be sufficient to meet the threshold of ‘maintenance of public order’ to justify invoking preventive detention (Para 15). Second, on the judicial reviewability of subjective satisfaction by the detaining authority, the judgment falls into the exception where the court reviews if an order of detention could have been passed on the material placed before the detaining authority. Third, the Court highlights the misuse of the 1986 Act and deviates from the normal procedure by not allowing the State to file a counter affidavit.

In this article, I examine the Court’s jurisprudence on judicial reviewability of the detaining authority’s subjective satisfaction comparing Mallada to an earlier decision of the Court in Union of India v. Dimple Happy Dhakad (“Dhakad”). I also comment upon the procedure adopted by the Court in not allowing the State to file a counter affidavit and how it can benefit the Court in more efficiently deciding habeas corpus petitions against preventive detention.

Judicial Review of Subjective Satisfaction

For a preventive detention order to be passed, the detaining authority has to review the material placed before it by the police or any other agency asking for the detention, apply their mind, and then take a decision whether to authorize it. There are many judgments which state that this subjective satisfaction of the detaining authority (whether a detention order should be passed on the material placed before it) is not to be interfered with. [See Senthamilselvi v. State of Tamil Nadu, (2006) 5 SCC 676].

However, over the years the Courts have consistently pushed the boundaries of this limitation to ensure that there is some kind of fairness to the decision-making power. Therefore, decisions can be classified broadly into two types; one where the Court follows the general rule that it will not place itself in the shoes of the detaining authority to see if, in fact, detentions order could have been passed. And second, where the Court allows review of this subjective satisfaction to prevent arbitrariness and ensure that the procedure remains reasonable. For example, in a situation where a material fact (most commonly, if the detenu was already in judicial custody) is not placed before the magistrate, an order made on such a material will be quashed by the Court [See, Farooq Ahmad Bhat v. UT, J&K, 2021 SCC OnLine J&K 369]. I highlight that the judgement in Mallada, which falls in the second category of decisions, starkly differs from the Court’s approach in Dhakad.

To review or not to review

The decision in Dhakad has been criticized on many counts. Most importantly, that being a two-judge bench, it holds contrary to a three judge bench decision in Rekha v. State of Tamil Nadu [(2011) 5 SCC 244]. For our discussion, its only relevant to state that Dhakad holds: firstly, it is not illegal to pass a detention order against a person who is already in custody and about to be released on bail, and secondly, imminent possibility of release is an issue that depends upon the ‘subjective satisfaction’ of the detaining authority and as such, is beyond the scope of judicial review (Para 46). It has been argued that this pronouncement dilutes the ‘trend of heightened review’ set in cases where the detenu is already being processed under regular criminal law; and furthermore, that the requirement to specifically record satisfaction that states ‘there is an imminent possibility of release’ and ‘a grave likelihood of the person returning to the prejudicial activities’ does not interfere with the subjective satisfaction of the authority but only makes it clear that the authority had considered the issue. It is important to keep in mind that the issue that Dhakad was dealing with was that preventive detention orders were passed against a person who was already in custody and therefore, posed no threat to public order per se. The argument that an order in such case is to prevent a person being released on bail only goes to indicate the normalization of the extraordinary powers of the executive.

The judgment in Mallada does not stop by simply saying judicial review of subjective satisfaction is not possible if the authority records satisfaction to the effect that there is possibility of bail and the detenu might repeat the offence. It adds that the order stated that the detenu ‘may violate the bail conditions’ and that ‘there is an imminent possibility of him committing similar offences’. Therefore, the detaining authority, in its wisdom, had reached the conclusion that there is an apprehension of the detenu violating bail conditions and repeating similar offences. However, the Court analyzed both the grounds and stated that the conditions of bail had concluded as of April 2021 and the order was only passed in May 2021. Moreover, there had been no further incident after the bail conditions expired. It concludes by stating that the case is of clear non-application of mind and competent to be dealt under ordinary criminal law. Interestingly, the State had neither moved to apply for cancellation of bail nor appealed the order granting bail; instead, it used its extraordinary powers to preventively detain the individual for an incident in which a Court had already granted bail.

Reports have shown that the the 1986 Telangana Act is used quite often as a tool to supplant ordinary criminal procedure and deny bail to individual, even in cases where no bail application is pending before the court but there might be a possibility that the detenu might file one. A recent amendment to the Act has  further broadened its scope and the procedure made more efficient in subverting ordinary judicial process. In 2018, to get away from justifying the invocation of the Act by showing that an activity was an actual threat to public order (the only ground on which the Act could be invoked – Section 3), the Title of the Act was amended to explicitly include more categories of offences which could normally be dealt by the ordinary criminal procedure. It now includes – ‘Spurious Seed Offenders’, ‘Insecticide Offenders’, ‘Fertiliser Offenders’, ‘Food Adulteration Offenders’, ‘Fake Document Offenders’, ‘Scheduled Commodities Offenders’, ‘Forest Offenders’, ‘Gaming Offenders’, ‘Sexual Offenders’, ‘Explosive Substances Offenders’, ‘Arms Offenders’, ‘Cyber Crime Offenders’ and ‘White Collar’ and ‘Financial Offenders’. The Court in Mallada has rightly called out the abuse of law by stating the number of orders quashed by it and directed the Government to look at the challenges pending before various courts and the advisory board to ensure ‘fairness’ (Para 17).

‘Live and Proximate Link’

As stated in the beginning, there is another line of decisions where the Court looks at the material on which the detaining authority passes the detention order; for example not considering a material fact that the detenu was in custody. Similarly, the Court in Mallada makes an important point while analyzing the material placed before the detaining authority. Chandrachud J notes that the order was passed nearly seven months after the registration of the first FIR and about five months after the registration of the second FIR and was interestingly executed after one month (Para 11). The Court relies upon its decision in Sama Aruna v. State of Telangana (2018), to iterate that if there is absence of a ‘live and proximate’ link between the incident which is part of the material and the detention order, it will be equivalent to ‘punishment without trial’.

This requirement of a live and proximate link is not a recent safeguard created by the Supreme Court. The first case which acknowledged there has to be a ‘live and proximate link’ between the grounds of detention alleged and the purpose of detention was in Bhawarlal Ganeshmalji v. State of T.N., (1978). Although, the order was not quashed in that case, it stated that this link will be assumed to be ‘snapped’ if ‘there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu.’ Thereafter, relying on Bhawarlal Ganeshmalji, the Supreme Court in Shafiq Ahmad v. D.M. (1989) and P.U. Iqbal v. Union of India (1991) quashed the detention order in the absence of ‘live and proximate link, where the delay was of two and half months and one year respectively. Furthermore, relying on P.U Iqbal, the Court in Sama Aruna had authoritatively stated that a detention without the link is punitive in nature.

The underlying principle for having preventive detention law is not to punish the detenu but ‘prevent’ them from doing a crime. A judicial review, quashing an order, for ‘stale’ grounds, gives an insight behind why the executive chose to exercise the power; not to prevent a crime, but punish the detenu using an extraordinary criminal procedure. The executive is allowed to do this with impunity and an implicit sanction from the Court since it takes too much time in deciding the legality of the detention order; long enough for the Government to achieve its purpose.

A Welcome Deviation

It is important to understand preventive detention as it operates in today’s framework from a punitive aspect, because of the amount of time a person has to spend in custody while the legality the detention order is being decided. Prolonged incarceration aids the State in achieving the objective of keeping a detenu – oftentimes a political dissident – out from interacting in public life. One of the easiest ways to delay the proceeding is to take adjournments to file counter affidavits. Although the problem is not recognized, there is a judgment delivered by Madras High Court, where the Court deprecated the practice of taking multiple adjournments to file a counter affidavit by the detaining authority.

Shrutanjaya Bhardwaj, in a study, analyzed the time taken by the Supreme Court in deciding habeas corpus cases against preventive detention between the years 2000 to 2019. The study concluded that the writ was reduced to a meaningless remedy because of the amount of time taken by the Court was more than the maximum time allowed for detention in various preventive detention acts. At the end of the study, a possible remedy was mooted that the Court should decide a habeas corpus petition without a counter-affidavit from the State and solely on the basis of the documents produced before it; only in cases where the State needs to explain a delay, should a counter affidavit be allowed.

In Mallad the Court did exactly this. It lamented that even though the notice was served no counter affidavit was filed. It proceeded taking into consideration the affidavit filed with the High Court. As a result, the case was decided in a span of 45 days (Supreme Court website shows filling date as 16-02-2022); compare this to the findings of the habeas corpus study with regard to the successful petitions i.e. where the Supreme Court was the first court to grant relief (as was the case in Mallad). The Court on an average took 159 days; the shortest was 34 days and in two cases it took longer than one year to decide the petition (448 and 377 days). Therefore, in cases where the Court can decide matters solely looking at the documents, it should not insist on a counter affidavit and give repeated adjournments for the same.

Admittedly, Courts have often delivered judgments without taking a counter affidavit from the detaining authority, but only after providing multiple opportunities to them (For example, see, here and here). The present case is different because there was only one date of hearing before the judgement was pronounced and thus, only one opportunity of three weeks was given to the detaining authority. Hearteningly, the Court has deployed fierce rhetoric to make its point (‘The liberty of the citizen cannot be left to the lethargy of and the delays on the part of the state’). Of course, it remains to be seen if the Court continues with this practice.

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. [See, Rekha 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 [See, Bhawarlal 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 [See, Prabhu 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 (See, here, 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 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).