Jail is not the Rule - Stating the Problem (Interlude)

(This is the fifth post in an ongoing series on restrictive bail regimes)

Restrictive bail regimes are arguably one of the most important issues in Indian criminal law and procedure. I use the term to refer to a swathe of statutory provisions through which the judicial discretion to grant or deny bail is curtailed, by mandating that such an exercise requires a court to formulate opinions about the merits of the case against an accused (wherever the prosecution opposes the request for bail). This usually presents itself in a formulation requiring courts must have "reasonable grounds to believe" that the accused is "not guilty of the offence" to grant bail. 

The previous posts in the series tried to locate these statutory clauses in Indian legal history. We looked at shifts in the kinds of criminal activity for which legislatures turned to such clauses, as well as shifts in the overall landscape of the general criminal procedure itself which had a bearing on how these clauses may well have worked in practice. Before we turn to the last two posts dealing specifically with restrictive bail regimes in two statutes [India's current anti-money laundering law and anti-terror law], it is helpful to have a summing up of the legal process problems which were flagged earlier. An interlude of sorts.     

Such clauses are obviously problematic because they render bail, a pre-trial measure to restore liberty of an accused, entirely contingent upon a premature discussion about the merits of the case even as the trial remains pending. What turns this problematic exercise into a grossly unfair and unconstitutional one is how the exercise is carried out in practice (which, if you read the previous posts, you know has changed over time). This practical aspect is the focus here.

Reducing delays in the trial has been a central theme of legislative changes to the criminal process in India, the thread which unites governments of the 1950s to the present regime. This has a material bearing on matters of bail generally, and naturally also on restrictive bail clauses. The argument flows from first principles. We conduct criminal trials because we accept that to imprison a person the allegations against them must be established beyond reasonable doubt. Till we have managed to do so, it is impermissible to deprive a person of their liberty. At the same time, in exceptional cases, there may be a need to restrain the person temporarily till conclusion of the trial to safeguard the process. 

Temporary legal arrangements which shift the status quo are fair because of their explicit acknowledgment to parties that it is only a temporary arrangement. Usually, the fairness of this arrangement formulated on the basis of first-impressions formed on untested material gets diluted as the litigation drags on; and, at some point the arrangement becomes untenable altogether. We usually think in these ways when dealing with civil cases, but criminal cases are no different. The status quo here is a citizen's liberty, and a shift from status quo is the arrest and custody pending trial. What makes this arrest and pre-trial detention on the basis of first-impressions palatable is its transient nature — it is a temporary holding measure, to tide over weeks or months by which point the set of allegations would have been tested on the anvil of beyond reasonable doubt.  

If an interim ruling is bound to cause a near-permanent shift in the status quo, a natural follow-up question is to think about how best we can ensure both sides get a fair and adequate hearing to put forth their side of the story. For starters, make sure that the material relied upon by the proponent is made available to the defendant, and hear both sides. The hearing should not be perfunctory but substantial, given its outcome is not a fleeting alteration to the status quo. Lastly, the higher burden is cast upon the party which wants to shift status quo, and must be discharged not by mere opinions and averments but substantive material of a kind that courts can judicially use.

Personal liberty is the default, and causing an arrest and thereafter seeking pre-trial custodial detention is the original shift in status quo, and bail is asking for a reversion to the status quo. This would mean that the State must initially carry the high burden to justify the arrest and discharge it using strong materials.  We can see this in play in statutes where subtle differences are prescribed in the standard for justifying an arrest depending upon the kind of offences involved (compare Section 41(1)(b) and (ba), CrPC 1973, as well as Section 19, PMLA 2002). Similarly, the accused would need the ability to rely upon whatever material is necessary to convince a court on why the accusations are not good and the situation must revert to status quo ante. In a restrictive bail regime, given that the merits of the case are determinative, the proponent would need a strong hand to justify its case.

Which then brings us to how are these burdens discharged by both sides. On this question of materials, the criminal law recognises that different phases in the life of a case would warrant different standards of justification for the State. At the start of an investigation, police necessarily invoke suspicion as a means to justify arrest. But as a case goes on, reasonable suspicion as justification must give way to prima facie proof, where proof is naturally based only on material that is admissible as evidence. This step-wise progression was well-illustrated by the Privy Council in Inspector Shaaban Bin Hussein [1969 3 All ER 1626]. In other words, once an investigation has concluded, suspicion must give way to proof to justify continued detention of an accused during trial. This distinction was of great relevance within the Indian setting where there was a consistent legislative choice distrusting the police. The clearest example being a disavowal of statements recorded by police during an investigation from being used at trial, except as a means for an accused to confront prosecution witnesses.

Crucial changes were made to this legislative scheme by amendments to the criminal procedure code in 1955 which introduced a conflict in the foundational precepts of the criminal process. These changes have been discussed in earlier posts but need more elaboration. Essentially, again frustrated by delays in trials, a comprehensive bill was moved in 1953 which sought to radically reimagine the criminal process. Two key changes being (i) deletion of the statutory prohibition against using police statements, and (ii) active use of such statements to speed up trials where police had investigated the case. In short, from distrusting police the law now sought to imbibe a position of trust. Huge uproar followed, the bill was debated at length both inside the House and before a Joint Select Committee, and ultimately passed after significant modification in 1955. The version of this bill which became law was very different from its initial avatar. Where the bill sought to significantly trust the police, the law diluted this approach and re-instated the barrier on using statements recorded by police. But at the same time, it retained the amendments by which such statements could now be used for substantive purposes such as framing charge and deciding matters of bail. 

This inherently contradictory position has remained with Indian criminal law ever since, and has not been addressed in the most recent 2023 laws either. What this means for arrest and bail is that the State can use material which can never be proof to discharge its burden till charge is framed and the evidence is recorded. What may have been a gap of few months or even a year in 1955 till institution of the case and taking evidence has today expanded to consuming several years in the life of a case, and requiring that questions of personal liberty continue to be decided upon untested allegations throughout this duration. 

Replacing legal evidence with the police file also carried serious consequences for how an accused can discharge the burden placed on them while seeking bail in a restrictive bail regime. There was no opportunity left to cross-examine prosecution witnesses at a pre-trial stage and introduce doubts in the accusation to convince a court that there were reasonable grounds to believe that the accused was not guilty of the offence. 

In other words, while the language of restrictive bail clauses has remained the same over time, the context in which they operate drastically altered the fairness of the regime. The context altered because of the changes made by Parliament to the criminal process, which transformed how the State and accused both discharged their burdens in matters of arrest and custody. While the law made it easier for the State to both discharge its initial burden on arrest and also oppose bail, it made it tremendously harder for the accused to discharge their burden to demonstrate why reversion to the status quo of liberty was necessary. Where the law had recognised a need to give a wide berth only during an investigation, since police were still gathering proof at this stage, amendments to the law post 1955 continued this wide berth till much later on in the legal process without corresponding safeguards to secure the position of the accused. 

The amendments did so by removing clauses which required courts to form their conclusions about the sufficiency of a case on the basis of evidence that could be challenged by either party, with new provisions that required courts to form judicial conclusions upon untested police material gathered during an investigation. Material which the law continued to condemn as being inadmissible and untrustworthy. No corresponding shifts were introduced to redress this balance, such as allowing for an accused to lead material in support of the bail to convince a court either. Now, accused persons had to discharge their burdens with both hands tied behind their back, being tasked to demonstrate reasonable grounds of their innocence whilst being unable to question the police material. Leaving us with a peculiar position that the law conferred far greater rights to safeguard personal liberty and civil rights against private parties, but did not confer such protections against the State even as it continued to recognise its potential for malice.

Thus, to simply point to existence of restrictive bail regimes in old laws a la Kartar Singh, is not a good enough basis to sustain their legality, let alone their legitimacy. If anything, Kartar Singh demonstrates the clear tendency on part of successive legislatures to act unthinkingly, introducing an antiquated statutory tool without any appreciation of the contextual requirements needed to secure its fairness. 

Jail is not the Rule - Restrictive Bail Conditions, After Independence (Part 2)

(This is the fourth post in an ongoing series on restrictive bail regimes)

The previous post covered the development of restrictive bail regimes in Independent India up till the 1970s. This post covers the crucial period from the 1970s till the mid 1990s, by the end of which India's Supreme Court, by my reckoning, addressed the legality of restrictive bail regimes for the first time.

The Repressive Laws Playbook

Before this phase, according to my count restrictive bail regimes — i.e., clauses restricting the power of sessions courts and high courts in granting bail — were not operating outside the war-related emergency legislation which we discussed in the previous post. These got a new lease of life in the 1970s, thanks to more war. Fast-forward to the mid-1990s though, and one finds that there were at least ten statutes (some had been repealed, to be replaced with new laws having similar clauses) at the federal and state levels with a restrictive bail regime in place:

• Section 12AA was inserted in the Essential Commodities Act, 1955 in 1981.
• Section 5 of the Madhya Pradesh Dacoity Affected Areas Act, 1981.
• Section 5 of the Uttar Pradesh Dacoity Affected Areas Act, 1983.
• Section 5 of the Rajasthan Dacoity Affected Areas Act, 1986.
• Section 439-A was added to the Criminal Procedure Code 1973 by the State of Punjab in 1983 to restrict bail for some offences.
• Section 15 of the Terrorist Affected Areas (Special Courts) Act, 1984.
• Section 17(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1985 [see page 140 of the link] (repealed in 1987).
• Section 20 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 [see page 313 of the link].
• Section 37 was amended in the Narcotic Drugs and Psychotropic Substances Act, 1985 in 1989 to add such clauses.
• Section 7A was inserted in the Anti Hijacking Act,1982 in 1994.
• Section 7A was inserted in the Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982 in 1994.
• Section 439-A was added to the Criminal Procedure Code 1973 by the State of Tripura in 1994 to restrict bail for some offences.

Restrictive bail regimes are my focus here, but if we take a step back and look at the landscape, a repressive laws playbook emerges. 'Black Laws', as the PUCL dubbed some of these statutes in its remarkable 1985 booklet. The restrictive bail clause is only one part of these laws. It is complemented by cases being shifted out of regular courts and placed before 'special courts' appointed in consultation with the executive. Procedurally, the restrictive bail is accompanied by extension of the total period of custodial remand possible during investigation from 90 days to either 120 / 180 or even 360 days; the outright removal of anticipatory bail, and; the insertion of reverse burdens of proof (some, like TADA, even made confessions to the police admissible).  

Parliamentary proceedings on the federal laws in this list are remarkably silent on the question of why was a restrictive bail regime, in this formulation, required to deal with the mischief at hand. In the debates surrounding the various anti-terror laws of the 1980s and amendments to the NDPS Act in 1989, the total amount of discussion on the restrictive bail regime in the Lok Sabha seems to be confined to three paragraphs when the 1985 iteration of TADA was being passed. This discussion occurred on 20.05.1985 during the clause-by-clause examination on the bill. GM Banatwalla raised the issue of Section 17(5) in the bill turning criminal law on its head - much like lawyers had argued in cases past. This objection was swiftly cast aside by the Law Minister A.K. Sen, who replied that the criteria in the clause was exactly as what had been approved in "certain decisions of the Supreme Court and the House of Lords". Alas, these decisions were not shared, as the Minister suggested that Mr Banatwalla meet him privately to learn about them. 

Reactionary Measures?

Lack of discussion on procedural issues as against substantive ones was a theme through these debates. In other words, Legislators did not seem too concerned with the erosion of personal liberty through restrictive bail clauses, but they did seem highly concerned with how broadly terrorist and disruptive activities were being defined (perhaps because it threatened to implicate swathes of ordinary political activity). 

Comparably far more debate on deviations from general criminal procedure appears  during the debates in the Uttar Pradesh Legislative Assembly on the dacoity affected areas bill which were held on 07.09.1983. These debates are not especially instructive about why state and federal legislatures of the 1980s were turning to restrictive bail regimes, but the debates do offer helpful insight into the development of the repressive laws playbook in general. 

The debates around the Uttar Pradesh Dacoity Affected Areas Act sketch a line of reactionary thinking that emerged in response to the development of India's general criminal procedure in the 1970s. I refer, of course, to the introduction of the Criminal Procedure Code of 1973 with its significant clauses which seemed to take away considerable power from the police and return a sizeable measure of personal liberty to the individual accused of an offence. The clauses I refer to include (i) the introduction of anticipatory bail under section 438, (ii) the insertion of a 60 day time-limit for custodial detention during investigation and an indefeasible right of bail if the investigation isn't complete within that time (both under section 167), and (iii) the retention of wide bail discretion for sessions courts and high courts (under section 439). 

The radical nature of the first two contributions from the 1973 Code earmarked above has been ridiculously under-appreciated. It has been discussed on occasion on the blog (see here and here for instance). To get an idea of just how big was the shift in status quo as a result of these clauses, remember that the Supreme Court in 1975 had called default bail under Section 167 a 'paradise for criminals'. Parliament almost immediately took steps to reduce its radical portents by introducing a 90 day time-limit for some offences (which some states later extended to 120 days soon after). Further, also take a moment to consider that Parliament had passed a bill to delete anticipatory bail from the code altogether within a few years of its operation; a bill which only lapsed because the Lok Sabha was dissolved.

Thus, even though these laws had hardly been in force for any significant measure of time, there was enough of a political groundswell imagining these as too lenient. This view made the new pro-liberty clauses in the general criminal procedure the most obvious targets for laws designed to toughen-up the fight against serious crime, such as the various Dacoity Affected Areas Acts that were passed by states, and Terrorist Affected Areas Act passed by Parliament. The absence of any significant debate or discussion in the legislature around the nullification of these procedural rights makes sense because this is what legislators were quite happy to endorse even outside of these laws. If a more generous bail clause was not ideal for ordinary crime in the eyes of many members of Parliament, it is little cause for wonder why they did not find much fault in limiting bail for those accused of some of the most heinous crimes around. 

Retaining the Regime without Thinking Through

A consequence of the lack of debate surrounding these clauses was that no real thought went into figuring out how these would work in the context of the new criminal procedure regime that had been introduced in 1973. We flagged this issue in the previous post as well, but it requires a brief recap here for ease of reference. 

A restrictive bail regime asks courts to form reasonable grounds to believe that an accused is not guilty of the offence. How do courts form such reasonable grounds? This depended upon the stage at which a court dealt with the bail application. During an investigation, there would only be material on the police file for the court to consider. But as a case progressed, witnesses would be examined and cross-examined, giving an accused more opportunity to convince a court that there were reasonable grounds to believe that he was not guilty. 

Between 1950 and the 1980s, two aspects of the practice of criminal law underwent constant change and probably worsened the chances of an accused seeking bail under a restrictive bail clause. The first was the issue of delayed trials, which meant that it took far longer for cases to proceed to recording testimony of witnesses to generate material that could contest the police version. The second feature was amendments to general criminal procedure (mainly in 1955 and 1973) which made reliance on the police file more entrenched even after investigation had completed. Prior to 1955, examination of witnesses took place once before framing charges in a trial of sessions cases as well as warrant-triable cases before magistrates. Fast-forward to the 1980s, and pre-charge evidence had given way to using witness statements recorded by police during an investigation to decide whether there was merit in a case to frame charges.

There was a serious problem brought about by this shift, which might be obvious to some but not to others, so let me spell it out. Statements of witnesses recorded by the police officer during an investigation are not written or signed by the witness. In fact, they are not even necessarily written in front of the witness. The lack of any serious safeguards in recording these statements was arguably the by-product of a legislative view that statements made to the police could not be trusted and ought not to be used in evidence. This view was codified in Section 162 of the 1898 Criminal Procedure Code which barred use of statements recorded by police as evidence [see pg 121 of the link]. By 1923, the scope of the prohibition had been seemingly widened, to bar use of such statements "for any purpose" at any inquiry or trial [see pg 204 of the link].

Even though the 1973 Code retained the prohibition on using statements recorded by the police, the deletion of pre-charge evidence in police cases (since 1955, retained in 1973) had created a vacuum in how courts would form their opinions about whether charge ought to be framed and, more importantly for our purposes, how bail applications ought to be decided. This vacuum was filled up by an increasing reliance upon the statements recorded by police, in spite of the statutory prohibition contained under Section 162 of the Code. 

Thus, as opposed to the setup prior to 1973 where the harshness of the restrictive bail clauses could potentially reduce after investigation and as courts began deliberations on charge — i.e., once cases shifted away from a logic of suspicion to the logic of proof — the procedural setting after 1973 continued the jurisprudence of suspicion for much longer in the life of a case. Even as the law demanded a complete disregard for the statements recorded by police to form judicial conclusions, recognising that these may contain many untruths recorded by an overzealous police officer, at the same time the practice of criminal law nevertheless expected the courts to form 'reasonable beliefs' about an accused not being guilty of an offence and meriting bail (or for that matter, discharge) using precisely these unreliable, unsworn, and inadmissible statements.

Judicial Experience and Kartar Singh

As most of us know, a Constitution Bench of the Court in Kartar Singh v. State of Punjab [(1994) 3 SCC 569] upheld the validity of the restrictive bail regime as it appeared in Section 15 of the 1984 Terrorist Affected Areas Act, Section 17 of the TADA 1985, and Section 20 of the TADA 1987. The conclusions in Kartar Singh have helped cement the legality, and legacy, of restrictive bail clauses in India. If we have to think about re-imagining restrictive bail regimes, we cannot do so without emerging out of the looming shadow cast by this decision rendered by a Bench of Five Justices.

All five Justices in Kartar Singh upheld the validity of the restrictive bail regime under various laws mentioned above. The discussion on this issue is in the lead judgment [paragraph 335 onwards in the link]. The conclusions can be summed up as follows:

• There is no problem with the criteria prescribed by the clause as it is a condition similar to that imposed by Section 437(1) of the CrPC 1973 on matters of bail, besides other laws such as the Customs Act, 1962 also carrying a similar formulation in respect of the power to arrest a person. "Therefore, the condition that 'there are grounds for believing that he is not guilty of an offence' which condition in different from is incorporated in other acts such as clause (i) of Section 437(i) of the Code and Section 35(1) of FERA and 104(1) of the Customs Act, cannot be said to be an unreasonable condition infringing the principle of Article 21 of the Constitution."
• As regards the approach which a designated court ought to follow in matters of bail, the Bench in Kartar Singh referred to the earlier decision of the Supreme Court in Usmanbhai Dawoodbhai Memon [(1988) 2 SCC 271] with approval. As per Usmanbhai, the "police report along with the statements in the case diary and other available materials should be closely examined" by a court to decide whether there are reasonable grounds to believe that the accused is "innocent of the offence".

The Court acknowledged that many innocent persons appeared to have been persecuted by use of TADA, but concluded that this was an enforcement problem and not a problem caused by the statutory provisions itself which, as referred to above, the Court found unremarkable as they appeared to simply extend existing prohibitions present in the ordinary law. 

I would argue that Kartar Singh got the conclusions wrong on both fronts. In drawing a straight line from Section 437 of the CrPC to Section 20(8) of TADA 1987, the Court demonstrates a startling lack of attention to detail on multiple fronts. 

• First, it did not appreciate that restrictions under Section 437 were historically justified as they curtailed the discretion of magistrates to grant bail in serious crimes. A long-view of the history behind Section 437 shows that there was a conscious decision by Parliament made time and again to unfetter the discretion of senior judges. As opposed to this view expressed under the CrPC, the restrictive bail regime under TADA (and other laws) had constrained the discretion of sessions courts and even constitutional courts. Thus, if anything, clauses under TADA were squarely contrary to the kind of prohibition that the general law imagined. 
• Second, the history behind the restrictive bail clause showed that while the language of the clause remained the same from the 1940s till the 1990s, the context in which these clauses operated had drastically changed. The changes had exacerbated the handicap that such clauses cast upon an accused, by requiring courts to form their conclusions on the police file till the trial began.
• Third, in its unreserved affirmation of the Usmanbhai approach to decide bails, the Kartar Singh Court demonstrated its failure to appreciate the legal problems posed by reliance on the police file to administer the clause. While actively suggesting that courts should look at statements recorded during an investigation to decide bails under TADA, the Supreme Court gave Section 162 CrPC and the century-long legislative distrust of such statements a complete go-by.

Perhaps because the Supreme Court was clear about the validity of the clause, it did not spend much time contending with the multiple issues pertaining to its proper enforcement and application. In this regard, the Court could have taken a leaf out of the Madhya Pradesh High Court's book. A Full Bench of the Madhya Pradesh High Court was dealing with the validity of the M.P. Dacoity Affected Areas Act, 1981 in Gulabchand Kannoolal (1981). It upheld the law, including its restrictive bail clause, but while doing so suggested that the judicial engagement with bail applications required titration depending upon the stage at which a case was. Where the police materials may be looked at if bail was sought during an investigation, a court ought to only consider that material which could serve as admissible evidence at trial where bail was sought after filing the chargesheet.

Conclusion

The liberal turn in the general law of criminal procedure during the 1970s was swiftly met by a reactionary repressive laws playbook emerging in the 1980s as the answer to serious crime of all hues. A proliferation of statutes with restrictive bail clauses ensued, to tackle more and more kinds of serious crime which state and federal legislatures thought that the general law was too meek to address. The ultimate seal of approval for these clauses came when in 1994 a Constitution Bench of the Supreme Court finally rendered its verdict in Kartar Singh and held that the outcry about the clauses was much ado about nothing. 

Ever since, Kartar Singh has served to foreclose any challenge to the legality of restrictive bail regimes in India. However, as this post demonstrates, the shadow cast by Kartar Singh is one that can be dispelled by casting even the faintest of light upon its conclusions, if any future bench of the Court was to demonstrate a willingness to wield that torch. The reasoning offered by Kartar Singh to safeguard the validity of restrictive bail regimes was severely wanting, and also arguably premised upon an incorrect reading of the other statutes which the Court readily pressed into service. Moreover, its failure to adequately address the nuts-and-bolts issues of the operation of such clauses blessed a situation where personal liberty was at the mercy of the police file. A situation which was squarely in the teeth of received legislative wisdom going back centuries which cried out for distrusting the police version to form any judicial conclusion unless absolutely necessary.

In the next post, we will return to the present, and contend with the restrictive bail regime as it is found in arguably its two most prominent avatars: Section 45 of the Prevention of Money Laundering Act, 2002, and Section 43D(5) of the Unlawful Activities Prevention Act, 1967.

Guest Post: Judicial Review of Preventive Detention - A Case of Judicial Abnegation?

(This is a guest post by Anushka Aggarwal)

Recently in Nenavathi Bujji Etc v. State of Telangana [Crl A. Nos. 1738-39/24, Decided on 21.03.2024], the Supreme Court (“SC”) rebuked the Telangana Government for frequently issuing preventive detention orders without application of mind. While examining the decision of the Detaining Authority (interchangeably referred to as the Executive), the SC reiterated the limited grounds of judicial review, i.e., subjective satisfaction of the Executive and application of mind by the Advisory Board. 

Previously, courts have created grounds like allegations must have a “live link” with the present allegations to justify a need for preventive detention and the grounds of preventive detention cannot be so arbitrary and vague as to render it impossible to challenge the Detention order. The courts have been cautious with their approach since they have considered that deciding the relevance of grounds relied upon (unless mala fide or wholly extraneous) or how the Detaining Authority reached its decision would be “to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute”. This effectively allows for the limitation of the right to liberty through preventive detention at the unfettered discretion of the Executive.

An expansive domain of judicial review is necessary in cases of preventive detention due to the importance of the right to life and personal liberty. However, judges often confront problems with judicial review arising from the tension between the separation of powers, since such decisions are prerogatives of the Executive and the judicial mandate of protecting individual rights. The difficulties with judicial review are only increasing as the alleged threats to public order grow. Accordingly, grounds for exercising judicial review need strengthening.

I argue that the current understanding of judicial review of preventive detention orders is unacceptably narrow. Elsewhere, scholars have attributed this to the misapplication of the decision in A.K. Gopalan (1950) by courts in subsequent decisions. A.K. Gopalan affirmed the necessity of wide powers of the Executive for preventive detention. At the same time, the entire bench held that the courts cannot be barred from examining the detention papers. Subsequent decisions not merely applied these conclusions but curtailed the scope of judicial review further. These courts interpreted A.K. Gopalan as establishing precedent that preventive detention laws were only required to comply with Art. 22, and not with respect to other fundamental rights. 

Reversing this position in Haradhan Saha (1974) the SC held that the validity of preventive detention laws would be tested not merely under Art. 22, but also other fundamental rights. At the same time, it also mentioned that when Art. 19 is examined concerning preventive detention, the standard of reasonableness will remain as prescribed under Art. 22 only.

  

This “strict silos” approach was re-examined in the much-celebrated judgment of Maneka Gandhi (1978), which held that the Fundamental Rights Chapter offered a composite test for legislation, rather than examining it in silos. It also expanded the meaning of “procedure established by law” in Art. 21, by holding that it has the same scope as “Due Process.” 

This would have meant that the scope of judicial review of preventive detention under Art. 22 could be subject to other fundamental rights. However, the implications of this expansive scope of judicial review for preventive detention was dealt only by Chief Justice Beg. He held that preventive detention would satisfy the requirement of “Due Process” so long as only Art. 22 is satisfied. Thus, even after rejection of the “strict silos” approach, preventive detention remained beyond the composite test. 

Here, it is important to note the already diluted safeguards available to individuals under preventive detention. Safeguards under Art. 22(1), right to counsel, and Art. 22(2), production before the nearest magistrate, do not apply to preventive detention as per Art. 22 (3)(b). Apart from the misapplication of A.K. Gopalan and the step-back in Maneka Gandhi, I seek to support the case for expansive judicial review by substantiating that such expansive domain that subjects Executive action in preventive detention cases to fundamental rights would not amount to substituting or even encroaching Executive satisfaction. Rather, it entrenches the importance of judicial review as a tool for exercising a check on the Executive. Examining the extent of such judicial review is beyond the purview of this paper.

The Role of Judicial Review

Under the framework of preventive detention laws, the basis of the Detaining Authority’s decision is the likelihood of the detenu acting in a manner, similar to past actions which are prejudicial to public order. Usually, Detention Authorities rely on past FIRs among other material to establish this. To check this, the courts have held that mere reference to pending criminal cases is not enough and there should be a clear indication of a causal connection. Other than this safeguard, subjective satisfaction is immune from judicial review.

For detention beyond three months, an Advisory Board, encompassing High Court judges or their equivalent as members, considers all aspects, not limited to the satisfaction of the Detaining Authority to decide the necessity of detention, in hearings that are not open to the public. The purpose of the Advisory Board is to act as a constitutional safeguard, as mandated under Art. 22 (4). This intends to ensure that no person is mechanically or illegally sent to preventive detention. Therefore, checking the validity of orders on such technical grounds and the substantive satisfaction of the Executive are the mandate of the Advisory Board. Such application of mind by the Advisory board is also subject to judicial review. However, the periodic review itself is not mandatory under the Constitution. It is required only beyond three months and even this can be overridden by a Parliamentary law under Art. 22 (7). This allows the Executive to override the safeguard instituted by provision of an Advisory Board, increasing the importance of judicial scrutiny of detention orders. While the Constitution (Forty-fourth Amendment) Act, 1978 did away with Art. 22 (7) making reference to the Advisory Board mandatory, it has not been notified yet despite receiving parliamentary and presidential approval.

Judicial Review and Constitutionalism

The above position of law shows that the purpose of Executive satisfaction and its review by the Advisory board, if applicable, is to review material, apply mind, and decide whether to authorise detention. The judiciary’s role has been to check such discretion. However, the purpose of judicial review can be better understood as essential to maintaining a balance between constitutional separation of powers and constitutional cohesion or constitutionalism. The value of public order is relied upon by the Executive to justify its supremacy and immunity while the value of individual liberty, sacredly protected under the Constitution, is how the judiciary can make inroads to review preventive detention orders. What hangs in balance is the scope of judicial review. While separation of powers imposes limits upon the scope of review, the supremacy of the Constitution necessarily prevents a complete separation of powers.

Both constitutionalism and separation of powers are widely accepted principles of the Indian legal system. The essence of constitutionalism is self-restraint, i.e., the submission of politics to legal restraints. The role of the judiciary then becomes to enforce constitutional law vis-à-vis the Executive as well. Even the separation of powers doctrine supports this role of constitutionalism by imposing a positive duty to perform minimum functions within the constitutional mandate apart from a negative duty to refrain from overstepping the domain. The duty of the judiciary to protect individual liberties is well-established. Thus, it is clear that the judiciary has a positive duty to enforce constitutional law against the Executive.

Attributing this positive duty to the judiciary also deals with criticism that considers expanding judicial review democratically illegitimate because judges are unelected since it ignores the judiciary’s role in promoting constitutionalism. I do not intend to question the bona fide claim that political decision-makers have to expertise on public order, strengthened by an electoral mandate. Rather, any arguments based solely on expertise and political mandate fail to justify deference to the Executive in case of preventive detention when the tension between public order and individual liberty heightens. 

In such cases, both the extent of the constitutional right’s limitation and importance of preventing harm caused by the limitation become relevant. The extent of limitation by preventive detention is such that the SC itself has acknowledged how preventive detention laws curtail individual liberty without a trial and hence, are inherently stringent. Further, there is no check on the subjective satisfaction of the Detaining Authority except an Advisory Board provision that can be bypassed as explained above. 

On the element of harm, the rationale for preventive detention is based on public order. In the present case of Nenavathi Bujji, the SC flagged how the State justified threats to public order based solely on an inability to manage a law and order situation. Dedicating one part of its analysis to repetitive litigations against the State of Telangana concerning validity of preventive detention orders (‘The Saga Continues’), the SC observed that the State has been repeatedly misapplying the standard of public order and thus, multiple such orders had to be set aside in the last few years. Noting this recently in Mallada K. Sri Ram v. State of Telangana (2023), the SC emphasised that the exceptional power of preventive detention cannot be exercised routinely or callously by the State. 

The inadequacy of justification raises concerns about the State's broadening interpretation of the purpose of preventive detention, potentially diluting the actual importance of such measures. It also highlights the State’s disregard for the liberty of its citizens. In the present case, the State even had an alternative remedy to approach the courts concerned for cancellation of bail instead of passing a preventive detention order.

In essence, while preventive detention laws aim to avert potential harm to public order, the expanded scope of what constitutes a threat and the State’s resort to preventive detention without exhausting other effective remedies raises concerns about the true purpose behind such measures. This, coupled with its impact on individual liberty, does not justify the current standard judicial deference to the subjective satisfaction of the Executive.

What Next?

The preventive detention regime has so far been insulated from fundamental rights apart from Art. 22, but Art. 22 protections are insufficient since they are merely procedural guarantees. In the absence of any substantive requirements like proportionality or reasonableness, Executive supremacy on the question of a person’s liberty is unbridled. Thus, wider judicial review could cover how the Detaining authority reached a decision. Abnegating its role towards constitutionalism, the judiciary has kept the spirit of A.K. Gopalan and Justice Beg’s dissent alive within the jurisprudence. The role of the judiciary as guardian of the Constitution cannot be over-emphasized. Expanding the scope of judicial review vis-à-vis prevention detention would not amount to substitution or encroachment of the Executive domain since it does not mean the supremacy of the judiciary but of the Constitution, primarily individual liberty.