(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.
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