Preventive Detention, the practice of arresting and detaining a person in custody without a trial in court, has a long and storied history on the Indian subcontinent. That it was not only retained by the founders of independent India, but was given place in the Constitution of India, continues to raise eyebrows and lead the curious down the alleyways of history to learn about the peculiar set of circumstances that led to insertion of Article 22 of the Constitution of India.
On this history of Article 22 — originally Article 15-A in the Draft Constitution that was deliberated in the Constituent Assembly — there is today a lot of writing [For instance, Granville Austin's books, Rohan Alva's book, Hallie Ludsin's book, and even old posts on this blog form 2016!]. Studying this history helps retain a sense of faith (for the faithful), as it shows that Article 22 was never meant to cement or legalise preventive detention (which was done when the Assembly passed the legislative lists) but to try and make sure that there is a respectable set of safeguards that no future government can avoid as it exercises powers of preventive detention.
There is another story, though, which has not been written about as much or at all. This is about Article 373 of the Constitution and promulgation of the Preventive Detention (Extension of Duration) Order on January 26, 1950, the day India became a Republic [pg. 8 here]. Let's get to it.
'A Disastrous Situation'
Draft Article 15-A was discussed in September 1949 in the Constituent Assembly. As mentioned above, it was intended to introduce safeguards that could bind governments while exercising preventive detention powers. The key guarantee here, arguably, was the prescription to limit the period of detention by government to three months, and permit lengthier detention only if it was confirmed by an advisory board consisting of a judicial member.
Either knowingly or unknowingly, the Constituent Assembly had just thrown up a curveball for the mandarins responsible for administering the affairs of state. A big part of the efforts to maintain law and order in post-partition India was to use preventive detention powers and detain persons for varying lengths of time. These powers were exercised at the level of the provinces through a motley bunch of public order statutes, almost all of which permitted preventive detention but did so by prescribing differing procedures. Not all of these statutes required an advisory board with judicial members to keep persons detained. Would all persons detained under such laws have to be released at the expiry of three years when the Constitution came into force?
It appears that the chief mandarin in the Ministry of Home Affairs, HVR Iengar, was vexed with this question. He discussed it with R. Gupta, Home Secretary in the West Bengal Government while on a visit there and brought this "difficulty" to the attention of the Drafting Committee. As he recounted to Gupta in a confidential letter dated November 12, 1949, Iengar had pointed out to the Drafting Committee that "if the constitutional position was that persons who had completed more than three months of detention would have to be released on the 26th January, 1950, then the situation, from the security point of view, would be disastrous."
The Drafting Committee, evidently, paid heed to Iengar's concerns. It "now recommended" insertion of Article 373 to the Constitution which sought to confer a power upon the President — in short, the Executive — to pass an order which would temporarily prevent the enforcement of Article 22 in full and allow the three-month limit to be extended. The Draft Order so prepared by the Drafting Committee provided that detention of persons detained (for any litany of reasons) "may be extended" beyond three months without orders of an Advisory Board, up to a maximum period of one full year from the date of the Order.
The disastrous situation could thus be averted, and Iengar informed Gupta that the Government was taking "necessary steps" to pass this draft order on January 26.
Extending All Detentions For a Year?
HVR Iengar's confidential letter of November 12 was sent out to all provincial governments and the States Ministry of the Government of India. There were seventy-five days left till January 26, and it made for a frantic last two months across governments to ensure that no loopholes were left which accidentally allowed detenus to be freed. To this end, the Government of India sent out instructions on December 31. 1949, to all the provinces asking them to "forward immediately by telegram a statement indicating in exact terms the grounds on which such (preventive detention) prisoners have been detained.". A separate letter of the same date shared a draft of the order to be passed, and sought comments "not later than" January 14, 1950. (All emphasis in original). A stream of telegrams followed, but very few offered substantive comments. The proposed draft of the order shared by the Government seemed comprehensive enough to them.
This process threw up a different problem for consideration too. Replying to the request for comments, the Chief Secretary to the Government of the United Provinces flagged concerns on December 19, 1949 that, while an Advisory Board already existed, there were other parts of their preventive detention law [The United Provinces Maintenance of Public Order (Temporary Act, 1947] that were inconsistent with Article 19 and 22 of the soon-to-be passed Constitution.
We get a glimpse of how the Draft Order was understood by the Government of India in the reply letter dated January 20, 1950 issued to the United Provinces. Interestingly, this letter referred to not one but two Executive Orders that would be issued by the President for preventive detention. The first of these, to be issued on January 26, "will permit detention under Provincial Acts up to a period of one year ... and will also make it unnecessary during this period to submit the cases for review by the Advisory Boards in order to get over the limit of three months" and, critically, as a result "the extension will be automatically granted to all detentions under provincial acts by the terms of the proposed order." (Emphasis mine). In other words, while the draft had said that the period of detention "may" be extended, the Government understood this to mean that detentions shall be extended without exception. Since all detentions would be extended, there was no need felt to amend any preventive detention laws for that immediately, and "it will be sufficient if these acts are brought into accord with Article 22 of the Constitution at any time before the expiry of one year's period" (Emphasis mine) for which the Central Government would issue a second order by April 1950 detailing what changes are required in all provincial laws.
The Curious Shift in Stance
On January 26, 1950, the Gazette of India (Extraordinary) published order C.O.8, titled the "Preventive Detention (Extension of Duration) Order, 1950" issued in exercise of powers conferred by Article 373. It did not contain any exhaustive list of cases for which detention could be extended, and permitted extending the time period of detention for only three further months. This was a big change from the proposed extension of an entire year, which we know that the Government had committed to in writing less than a week prior. The seeds of this change were, presumably, sown already in the idea of passing two Presidential Orders instead of one. Since only three months were seen as being required to bring the existing legal machinery in tune with the Constitutional scheme on preventive detention, there was no need to detain persons for an entire year.
The archives suggest that not every province received copies in time or in sufficient numbers, as frantic telegrams were sent to the Central Government asking for additional copies to be sent at the earliest. It also appears that the original order issued in the Gazette had an embarrassing typographical error, having gotten the date wrongly written as January 20 (incidentally, the date of the letter sent to United Provinces), and not January 26, 1950! This was not the only problem in the Order, though, which the Home Ministry admitted on February 13, 1950 was "revised and issued at very short notice" because of which "the full implications of its provisions could not be examined in detail". The implication being referred to was this: the Order potentially created a three month upper limit even for those persons detained after January 26, 1950 under laws fully compliant with the constitutional scheme. These and other issues were "being further examined" at the time.
Post-Script
As it turned out, the Preventive Detention (Extension of Duration) Order 1950 did not even tide over the three months as had been planned.
The problem flagged by the United Provinces Government in December 1949 of provincial laws being inconsistent with the Constitution and therefore void was seized upon by enterprising lawyers in cases already pending at the time of the Constitution's coming into force. It led to the Patna High Court holding detentions invalid on February 14, 1950 in Brahmeshwar Prasad [AIR 1950 Patna 265] concluding that the Order could not save the provincial law itself from the vice of constitutionality (The judgment came one day after the Home Ministry's letter and interestingly also suggests that the Government Lawyer did not have access to proper copies of the Gazette with the Extension of Duration Order).
Much before this, though, the Government of India had already begun to draw up plans to render the Presidential Order redundant by passing a Central Law on the subject. In a letter of January 31, 1950 sent by the Home Ministry to all provinces, we find reference to this plan. Perhaps the judgment of the Patna High Court, coupled with the many problems thrown up by the language of the Presidential Order, are what led to the ungodly speed with which the Preventive Detention Act was tabled and cleared on February 25, 1950 by the Provisional Parliament. And the rest, as they say, is history.
[The post is based on a file being F.No.10(95)-P/49 titled "Protection against arrests and detention in certain cases - Clause (7) of Article 22 and 373 of the New Constitution. Issue by the President of the Preventive Detention (Extension of Duration) Order, 1950". It can be viewed, for free, on the National Archives of India portal.]
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