Guest Post - Effective Communications Lite: A Caution against Short-circuiting Article 22 Safeguards

(This is a guest post by Varun Ahuja)

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 by telegram 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.

Why the Delhi High Court is Wrong to Deny Satyendar Jain his Right to Counsel

It appears that by an interim order passed on 03.06.2022, the Delhi High Court has stayed operation of a portion of an order passed by the Trial Court whereby it had directed that Satyendar Kumar Jain, who has been arrested by officers of the Enforcement Directorate and remanded to their custody for ten days, was entitled to have counsel present within visual range while he was being interrogated. The reasoning adopted by the High Court to grant interim relief is straightforward: the directions in the Trial Court's order are seemingly contrary to judgments of the Supreme Court and the Delhi High Court, and so it was appropriate to stay their operation. 

The High Court was swayed by the decision of the Supreme Court in Poolpandi & Ors. v. Superintendent, Central Excise & Ors. [(1992) 3 SCC 259 ("Poolpandi")] and an order of a Division Bench of the Delhi High Court in Sandeep Jain v. Addl. Director, DRI [Rev. Petition 387 of 2019 (Order dated 10.12.2019) ("Sandeep Jain")], pressed into service by the Enforcement Directorate. All the Supreme Court judgments relied upon by the Respondent Satyendar Jain were distinguished simply because they, apparently, do not consider Poolpandi; the Bombay High Court judgment cited by his counsel was not relied upon due to the existence of Sandeep Jain which according to the High Court held a contrary view.

This admirably straightforward argument, which the High Court has accepted, has one small problem — it is wrong in law. A careful reading of the two main planks of the Enforcement Directorate's contentions, viz. the judgments in Poolpandi and Sandeep Jain, were entirely inapplicable to the facts before the High Court in this case of Satyendar Jain. Importing Poolpandi and Sandeep Jain to this factual matrix is worse than comparing apples to oranges.

In Poolpandi the pure issue presented to the Supreme Court was this: do the persons summoned for being questioned under the Customs Act 1962 or the erstwhile Foreign Exchange Regulation Act 1947 have a right to presence of counsel while they are questioned. It was contended that the source for this right was Article 20(3) which protected accused persons against compelled self-incrimination, and alternatively in Article 21 as the questioning by agencies was necessarily coercive. The Supreme Court disagreed, primarily on that (incorrect) technical objection that persons being questioned under Customs Act etc. were not 'accused' thereby failing to trigger the Article 20(3) guarantee. As for Article 21, the Court refused to accept a presumption that questioning by agencies was necessarily coercive.

In Sandeep Jain, a review petition was filed challenging the dismissal of a writ petition by a single judge on entirely new grounds. This was, patently, outside the scope of review jurisdiction of the High Court, and the Division Bench rightly observed that the petition deserved an outright dismissal. In light of this, whatever followed was obiter dicta, and that is what has been treated as binding by a Single Judge in Satyendar Jain's case. Be that as it may, what were the facts in Sandeep Jain? Again, it did not concern an arrested person; it involved a person who had avoided summons under Section 50 of the Prevention of Money Laundering Act, but now sought presence of counsel, within visual range, during his questioning. The Court declined to grant this indulgence, citing that no allegation of any threat existed justifying presence of counsel. The contrast with a case in which the person is arrested and remanded to ten days custody of the law enforcement agency could not be starker.

Critically, the issues before the Supreme Court in Poolpandi and the High Court in Sandeep Jain did not extend to considering whether persons who have been arrested and are undergoing custodial detention are also without any right to counsel during questioning. The scenario was purely about a set of people who had only been summoned, which is why none of the petitioners resorted to Article 22(1) of the Constitution which, plainly, guarantees to all persons who have been arrested the right to be defended by counsel of their choice. Since 2008, with the enactment of Section 41-D of the Criminal Procedure Code 1973, this aspect of Article 22 rights have been given clear and unambiguous statutory footing. Nothing in the Prevention of Money Laundering Act 2002 prevents the application of Section 41-D, and in any event, nothing in a statute can ever override the constitutional mandate of Article 22. 

The position of a person at liberty cannot be compared with a person under arrest. In doing so, and by ignoring the letter and spirit of Article 22(1), the High Court has unfortunately erred and has potentially set a rather dangerous precedent, perilously tilting an already skewed balance between rights of arrested persons and the powers of investigators even more in favour of the latter. There is more which can be argued to contest the legal soundness of the view taken by the High Court here, but it warrants a second look on this primary ground itself.  

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

“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 surviving on one kidney during a pandemic placing 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 that 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 the last 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, I would argue, is 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 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 police to consider a prior record to justify the 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 in order 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 fell 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.

Preventive Detention: Article Update

(This is an article update for new scholarship and not a substantive post. The paper is available here)

Since August 5, the rest of India has been cut-off from the happenings in the (erstwhile) State of Jammu and Kashmir, except when the happenings are released at the convenience of those in power. Thus, today, we find ourselves in the remarkable situation, that even after almost 45 days, the rest of India remains unaware of the legal basis for the untrammelled show of executive discretion currently on display in various parts of Kashmir. A situation which the Supreme Court is aware of, and yet, has taken no steps to remedy either.

The eerie silence around Kashmir has also, reportedly, been brought about through widespread arrests and detentions — again, the basis for which has not been made public to the rest of us. It is probable, that a large number of these arrests have been carried out by the police using powers of what is called "Preventive Detention". But it would be a misnomer to continue calling it this, considering that it is rarely only used for preventive purposes. So I'll call it by another name by which it is known in other parts of the world: Executive Detention.

What, then, is Executive Detention? As the name suggests, this is a denial of liberty carried out by the Executive, and only the Executive, without any worthwhile judicial supervision. A Commissioner of Police can order the arrest of any person on suspicion of doing acts prejudicial to "public order" or other vague / strange grounds, without giving any reasons upon arrest, and detain persons for upto ninety days without judicial scrutiny. The law allows police to arrest first and seek approval for this detention, which only involves scrutiny by senior executive officers. Of course, the person can make a representation against this arrest and detention, but she is denied the right to counsel. And, if a non-judicial body approves, the detention can also last upto one year or more.

There is the regular outrage when Executive Detention is used by governments for, seemingly, jailing political opponents or trampling upon civil liberties. But, amidst all this, there is surprisingly little critique about the set of legal regulations that primarily governs all legislation on the subject of Executive Detention in India: Article 22 of the Constitution itself. Through Articles 22(3) to (7), the Constitution prescribes a set of do's and don'ts that the Executive Detention laws must comply with. And my description of such laws in the preceding paragraph is fully constitutional. 

The shortcomings of the legal minima prescribed by the Constitution are many. Not only were these baselines extremely generous to the Executive when compared with other existing legal positions in 1950 itself, but over time, the continuance of these baselines has created a strange duality in the law. While the judiciary has expanded the protections for individual liberty in most spheres of law, it has not been able to do so in the sphere that requires these protections the most. All of which has led to a reality where, over the years, successive governments have gradually turned the supposedly extreme measure of Executive Detention into just another law enforcement tool, by passing laws that only barely pass the already low-lying constitutional threshold. 

If that strikes your conscience, even the tiniest bit, then ask yourself: Why do we persist with this set of legal standards that maximise executive discretion to ensure public safety but by nullifying individual liberty to absurd levels? Can we not reconfigure the attempts at striking a balance between these apparently conflicting interests that the framers of the Constitution made? If we have done this for many other parts of the Constitution, noting that times change, then why not this part which  goes to the root of the Constitutions' ambition of creating a legal order that safeguards individual liberty?

In a short paper, I've tried to initiate this conversation around Article 22 of the Constitution. I strongly think that the persistence of these clauses is a blot upon the Constitution, in more ways than one, and it is no answer to say that we must live with the status quo  simply because the Constituent Assembly had brought this Article to life. This ritualising goes against the very idea of a social contract between Citizen and State, which imagines that future generations are not bound by the choices of their predecessors. It is high time we begin the discussion to reconsider the choices made by the Framers of the Constitution to place the "interests of the state" high above the "exigency of liberty of the individual". 

P.S.: I must not be mistaken to say that the choices of the past can be thrust aside by the tyranny of a majority or executive supremacy. Discussion, not imposition, is the means towards a new set of laws in a democratic republic.  

Guest Post: Arrests Under the Infamous ‘No Vakil, No Appeal, No Daleel’ Law

(I am happy to host a guest post by Ms. Aasavri Rai, a final year student of the B.A. LL.B. (Hons.) Program at National Law University Delhi)

The National Security Act, or as it is (un)popularly called the "no vakil, no appeal, no daleel" law, became effective from 27th December 1980, pursuant to a National Security Ordinance which was introduced by the then Prime Minister Indira Gandhi. The Ordinance promulgated on 23rd September 1980 was originally meant to "deal with black marketeers, smugglers and anti-social elements, and not to end civil liberties". Even in this brief period of three months, over 730 arrests (excluding figures from Punjab and North-East) were made under the Ordinance. These arrests did not target a single smuggler or black-marketeer; instead, well-known political activists and trade unionists were hauled up by the government. One such name was that of trade unionist AK Roy, whose writ petition, along with others, was heard by a Constitution Bench of the Supreme Court in 1981. 

This disturbing trend has been exacerbated through the years, as the NSA has been used freely with little regard to the original purpose of this preventive detention legislation. The Act is employed as a weapon to stifle political dissent. Uttar Pradesh has seen glaring misuse of the statute with over 160 arrests being reported in January 2018. The arrest and re-arrest of a journalist who criticised the Prime Minister in a social media post, a Krishak Mukti Sangram Samiti leader’s re-arrest ahead of Amit Shah’s visit, and Bhim Army chief’s arrest under the Act, a day after acceptance of his bail petition, are other disturbing instances of the misuse of the Act. 

The exceedingly broad and open-ended grounds of detention have resulted in a widespread misuse of the Act. In this post, it is argued that the grounds for detention under Section 3 are vague, disjunctive and thereby have a low threshold, and are determined as per the subjective determination of the detaining authority, which is shielded from judicial review. 

Vagueness under Section 3 of the NSA

What are the grounds detailed under Section 3 of the NSA? Section 3(1)(a) of the Act tells us that orders for preventive detention can be issued in respect of any person, to prevent them from "acting in any manner prejudicial" to (i) the defence of India, (ii) India's relations with foreign powers, or (iii) India's security. Foreigners can also be subjected to preventive detention to regulate their continued presence in India or towards making arrangements for their expulsion [Section 3(1)(b)]. 

These were new grounds, and at least hypothetically speaking, limited. But the same cannot be said for the next set of grounds that follow in Section 3(2): preventive detention orders are possible to safeguard the (i) security of the State, (ii) maintenance of public order, or (iii) maintenance of supplies and services essential to the community. These were the grounds on which both central and state preventive detention legislation had been operating in the three decades of India's history as a republic. 

The challenge in AK Roy was to both sets of grounds, where petitioners argued that these were vague. It harked back to the customary international law principle of legality, that seeks to curb uncertainty and arbitrariness in law through vague and imprecise definitions. The Supreme Court agreed that the problem of vagueness is grave, but found that there was no problem in this case. Not because it gave us a concrete interpretation, but instead, as the controlling opinion noted, "formulation of definitions cannot be a panacea to the evil of vagueness and uncertainty". In doing so, it relied on the existing judicial engagement with Section 3(2) style grounds where the Supreme Court had consistently held that the vagueness was necessary. 

I argue that this was incorrect. While there was an extensive body of law on preventive detention, an uncritical application of the same was uncalled for. Largely because there was a watershed moment in this time: the re-insertion of due process requirements through the Bank Nationalisation and Maneka Gandhi decisions. These decisions supported an argument against vagueness and uncertainty in a much broader fashion than the pre-existing position. However, while the Court in AK Roy did not fail to cite Maneka Gandhi, it was incorrect in thinking that the decision did not prevent reliance on the pre-existing case law. 

The Court in AK Roy had an alternate path. Even if it was committed to saving the NSA - to avoid the wrath of the same Government that brought about the Emergency - it could have faithfully applied the stricter standards of judicial review that Bank Nationalisation and Maneka Gandhi offered and then built upon the existing law, where through decisions such as Romesh Thappar, Brijbhushan v State of Delhi, and Ram Manohar Lohia, the Court had in fact given guidance on how to interpret vague terms like public order. Instead, the Supreme Court went into full deference mode, and did not even attempt to venture into possible interpretations of the array of grounds provided under Section 3 NSA. 

This wide discretion in interpretation of the grounds for detention has led to an alarming increase in the instances of arrests in recent times. In Uttar Pradesh, 81 people were preventively detained after violence broke out in Kasganj, pursuant to which the DGP quoted that the NSA will be invoked against "criminals (emphasis mine) for vitiating the atmosphere". After 51 people were arrested for cheating on an exam, UP CM Yogi Adityanath directed the investigating agencies to slap NSA provisions, to ensure "transparent and corruption free" examinations. Arrests have also been made for brawls during neighbourhood cricket matches, allegedly carrying beef, and uploading videos on Facebook criticising the Prime Minister. Children of multiple detenus have faced ostracisation at their school, for their fathers being ‘criminals’. 

By no means is the vagueness of grounds under Section 3 the sole reason for calling the NSA a draconian law. Other notable features include the disjunctive requirement of satisfying the grounds, i.e., an order passed on many grounds can't be set aside unless all of the grounds are found to be bad. Together with this is the principle that courts cannot question the subjective satisfaction of executive officers who passed detention orders. But it should be clear that the vagueness issue greatly enhances the problematic nature of these other features. After all, it is the core of the NSA, and if the core is rotten, all else follows.

Conclusion 

Preventive detention laws have found a place in the Indian legal system since the colonial era. Unsurprisingly, these legislations continue to be used to curb individual liberty and stifle dissent. The consequences of such statutes have historically proven to be dangerously repressive. The same can be witnessed at present where even trivial disturbances are being accorded the status of national security concerns. The idea behind preventive detention statutes is to detain people based on their previous conduct and the apprehension that they might engage in similar conduct in the future. The recent barrage of cases under the NSA has been against people with no previous history of misconduct. The cherry on the cake is the branding of the detenus as ‘criminals’, with the presumption of innocence being conveniently done away with. 

These instances also highlight the disturbing trend of the NSA being used as a tool to keep certain people behind bars. If criminal cases are pending against the accused and the accused is granted bail, almost immediately NSA charges are slapped to send her away again. In most such cases, the order of extension of the detention is arbitrary and the grounds are not conveyed to the detenu and her family members. Even though Section 13 of the Act provides for a twelve-month period, as noted in AK Roy, such a time duration is the maximum period of detention possible, and the detaining authorities are at the liberty to modify the order of detention and reduce the term. However, such a reduction of the period of detention is rarely ever witnessed in practice. The majority of these cases also reek of the biased and discriminatory policies of the administration, as most of the detenus are Muslims, people belonging to the Scheduled Castes, or the poor. While the Court had the ability to do away with the draconian provisions of the Act in AK Roy, it comfortably expressed its inability to derogate from the Constitutional provisions and expressed regret for doing the same. Though the Court does throw in certain observations to pacify the citizens, even these minimum possible protections aren’t being provided to the detenus.

Article 22(3): A Constitutional Paradox?

(This post first appeared on the NLSIR Online Blog)

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).   

Preventive Justice Part 3 - An Overview of the Statutes

The two previous posts in the Preventive Justice series focused on Article 22 of the Indian Constitution which prescribes basic minimums regarding preventive detention in India. The history behind this constitutional provision - labelled an anachronism - offers further support to that old adage of not judging books by their covers. The development of due process law in India was used to question the sustainability of the basic minimums constitutionally prescribed by Article 22. To recap, it was argued that the Supreme Court has, unambiguously, held that Article 22 is not a complete code and preventive detention laws are open to challenge under Articles 19 and 21. In this concluding post in the series, I look at the many statutes - both federal and state - in India that authorise preventive detention for a wide variety of acts. The question I beg, not always directly, is whether these would pass muster when tested against Articles 19, 21 and 22 of the Constitution. 

Scope of Legislative Power on Preventive Detention

The Seventh Schedule to the Indian Constitution details the various items on which the federal and state legislatures can pass laws. Preventive Detention figures as Entry 9 on the Federal List (List I) as well as Entry 3 of the Concurrent List (List III). These read as follows:

Entry 9, List I: Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India; persons subjected to such detention.

Entry 3, List III: Preventive detention for reasons connected with security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention.

In A.K. Gopalan v State of Madras [AIR 1950 SC 27] the majority held there was no requirement to specify what issue of defence or foreign affairs a preventive detention statute sought to deal with. It would be legal for it to simply refer to the subjects mentioned in these entries as justifications. As we shall see, this proved to be important for courts in upholding the validity of these statutes.

Federal Laws Authorising Preventive Detention

Is it purely coincidental that the federal laws authorising preventive detention in India today have some connection with the 1975 Emergency, when preventive detentions were most routinely ordered? Perhaps. Although the controversial Maintenance of Internal Security Act, 1971 was repealed in 1978, its cousin the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) was not. This was, in fact, supplemented by the National Security Act (NSA) and the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act (Black Marketing Act) in 1980. What are the purposes of these laws and what do they proscribe?

• COFEPOSA: Allows for preventive detention for "conservation and augmentation of foreign exchange and prevention of smuggling activities." 
• NSA: Persons acting "prejudicial to the defence of India, the relations of India with foreign powers, or the security of India" as well as those acting "prejudicial to the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community can be preventively detained.
• Black Marketing Act: Allows for detention in cases for prevention of "blackmarketing and maintenance of supplies of commodities essential to the community."

Do these objectives fall foul of the tests laid down in Articles 19, 21 and 22? The legality of the NSA was challenged in A.K. Roy v Union of India [AIR 1982 SC 710], and upheld by the Supreme Court. It helped that the legislature had copied the objectives from the Seventh Schedule. 

The COFEPOSA posed a more interesting challenge. Passed before the Emergency, it was also placed in the Ninth Schedule. This was the basis for the Supreme Court upholding its validity in Attorney General for India v Amratlal Prajivandas [AIR 1994 SC 2179]. At that time laws placed in the Ninth Schedule were completely immune from judicial scrutiny. This understanding changed with I.R. Coehlo v State of Tamil Nadu [AIR 2007 SC 861] which held placing a law in the Ninth Schedule could not bar challenges for fundamental rights violations. 

Did that affect the fate of COFEPOSA? The Supreme Court in Dropti Devi v Union of India [(2012) 7 SCC 499] held that this didn't matter. It noted that as the validity of the COFEPOSA had been upheld once, the change brought by I.R. Coelho would not allow another challenge. Still, the Court went ahead to address the merits in the decision, only to bunk the arguments that the COFEPOSA violated Articles 19, 21 and 22. The economic harm that the COFEPOSA purportedly addresses was seen as a measure to safeguard the security of India by the Court.   

State Laws Authorising Preventive Detention

The vast majority of State laws greatly resemble each other - in both substance and in name - and address purported anti-social elements such as Goondas and Bootleggers. Amnesty India has put up a useful resource listing these laws and their objectives which means I can jump right away to the more recent developments on this front. I refer to the amendments to preventive detention laws brought to address video piracy and digital offenders. This was done by Karnataka most recently, giving us the atrociously titled Karnataka Prevention of Dangerous Activities of Acid Attackers, Bootleggers, Depredator of Environment, Digital Offenders, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Land Grabbers, Money Launderers, Sexual Predators and Video or Audio Pirates Act 1985. The problems posed by such amendments by states have been discussed a fair bit already (see here, here and here) and has been considered once by the Madras High Court in 2005. Supplementing those critiques, I argue that these extensions are illegal for the laws do not pass the test posed by Articles 19, 21 and 22. The development of due process would suggest Article 21 poses an important test to the validity of these laws.

Conclusion

The lack of attention to preventive detention legislation in India remains surprising. Especially at at time when there is renewed attention to the expanding scope of detention without trial across the globe. The judicial approval of these statutes has stemmed debate to a certain extent, and has consequently resulted in emboldening states to continually expand preventive detention laws. While preventive action in itself is not a problem, Indian laws (both federal and state laws) display a glaring lack of proportionality in their approach. Prescribing possibly year-long detentions for potential copyright violations, when the offence itself is bailable, is patently unjustified and illegal. Looking ahead, lets see what the future holds. 

Preventive Justice Part 2: Looking inside Pandora's Box

In the previous post, I traced the history behind Article 22 of the Indian Constitution, showing how the clause was considered to be Dr. Ambedkar's version of due process after that idea was excluded from Article 21 [India's guarantee to protect the right to life and personal liberty]. Constitutional developments since have seen the Supreme Court re-introduce the due process idea into Article 21 most famously in Maneka Gandhi's case. This, naturally, raises questions about the position of Article 22 in the panoply of rights to freedom guaranteed under the Indian Constitution. It leads me to consider the history behind the interplay between Articles 19 to 22 in this post. For this I have relied, again, on the books by Granville Austin and Mr. Seervai's commentary, and I would strongly suggest those interested in the issue to consult these sources. I then argue, that Article 22(3)(b) - excluding the right to legal representation for those preventively detained - is contrary to Article 21.

The 'Complete Code' idea - AK Gopalan and RC Cooper

A.K. Gopalan v. State of Madras [(1950) SCR 88] is one of my favourite decisions of the Supreme Court, and probably one of the most misunderstood ones too largely due to the common vilification it suffers after Maneka Gandhi. A.K. Gopalan [Communist Leader, and later Member of Parliament] was detained under the Preventive Detention Act, 1950 [a legislation hastily passed by the Nehru Government a month after the coming into force of India's Constitution to prevent release of the hundreds of persons detained under laws that would soon lapse]. Gopalan challenged the Act for violating Articles 14, 19, 21 as well being contrary to Article 22 itself. The Court upheld the validity of the Act but held Section 14 unconstitutional for violating Article 22(5) - the provision prevented even courts from accessing materials on which detention orders were based.

This post is limited to only one of the several fascinating points of discussion thrown up by Gopalan. That is the issue of Article 22 being a 'Complete Code', which means that the legality of preventive detention laws is limited to being tested only against Article 22 and not the other fundamental rights in Part III of the Constitution. The Attorney General argued this was the correct position of law. Only Mahajan, J. agreed: "I am satisfied on a review of the whole scheme of the Constitution that the intention was to make Article 22 a self-contained in respect of the laws on the subject of preventive detention." Kania, C.J., Sastri and Das, JJ. considered Articles 21 and 22 had to be read together [Kania, C.J.: "According to him [the Attorney General], Article 22 is a complete code. I am unable to accept that contention."]. Fazl Ali, J. went a step further and observed that "In my opinion, it cannot be said that Articles 19, 20, 21 and 22 do not to some extent overlap each other."

This means that the 'Complete Code' argument was rejected in Gopalan itself, the only doubts left were regarding applicability of Article 19 to preventive detention laws. Strangely, then, the majority of ten judges in R.C. Cooper [1970 SCR (3) 530, speaking through Shah, J.] held that "The majority of the Court [in Gopalan] held that Article 22 being a complete code relating to preventive detention, the validity of an order of detention must be determined strictly according to the terms and 'within the four corners of that Article'." As Mr. Seervai notes, the majority incorrectly considered the 'Complete Code' idea as being approved by Gopalan and that this was further compounded in Haradhan Saha [(1975) 3 SCC 198]. In hindsight some good came of this error. The R.C. Cooper majority upheld the view of Fazl Ali, J. and overruled Gopalan for accepting the 'Complete Code' argument [wrongly, of course]. This cleared the way for preventive detention laws to also be subjected to Article 19 challenges, together with existing tests of Articles 21 and 22. The Article 21 test was later notably strengthened in 1978 by Maneka Gandhi transplanting 'procedure established by law' with 'due process of law' without amending the text of Article 21 itself. Subsequent years saw the just, fair, and reasonable logic of Article 21 seep into preventive detention laws - Francis Coralie Mullin [AIR 1981 SC 746] an eloquent instance of the same.

Pandora's Box: Unleashing Article 21 on Article 22(3)(b)

Opening Pandora's Box is shorthand for taking decisions without appreciating the consequences. I think the analogy aptly reflects the Supreme Court's move to import 'due process' into Article 21. The interplay between the various 'rights to freedom' under Part III was based upon the specific exclusion of due process from Article 21 [discussed in the last post]. It is fair to say that the decision in Maneka Gandhi irreversibly severed Articles 19-22 from that original interpretation. Proceeding from this position, I argue that Article 21 and Article 22(3)(b) cannot coexist in the current constitutional scheme. The limited version of 'due process' guaranteed through Article 22 must give way.

Recall that Article 22(3)(b) barred persons detained under preventive detention laws from consulting and being defended by a legal practitioner of their choice. Like the rest of the preventive detention clause, this was considered necessary due to the situation prevailing at the time by Dr. Ambedkar. The Supreme Court noted its harshness but begrudgingly accepted this position. All this was because Article 22 represented the extent of due process guaranteed in the Constitution. Then the Supreme Court decided to introduce an unfettered concept of 'due process' into Article 21. This led the Court to note in Madhav Hoskot v. State of Maharashtra [(1978) 3 SCC 544] that a 'procedure established by law' entailed a right to appeal, right to counsel and imposed a duty upon the State to provide free legal aid (Krishna Iyer, J. even passed directions to that effect). How, then, does one justify the exclusion of this right to counsel through Article 22(3) to persons who perhaps are in greatest need of legal counsel? 

Five judges in A.K. Roy v. Union of India [(1982) 1 SCC 271] squarely faced this contention. Their answer was simple: detenus had not right to counsel because Article 22(3) specifically excluded it. Notice the helplessness in the opinion: "It is therefore necessary that the procedure prescribed by law for the proceedings before the Advisory Boards must be fair, just and reasonable. But then, the Constitution itself has provided a yardstick for the application of that standard, through the medium of the provisions contained in Article 22(3)(b). Howsoever much we would have liked to hold otherwise, we experience serious difficulty in taking the view that the procedure of the Advisory Boards in which the detenu is denied the right of legal representation is unfair, unjust or unreasonable. ... It is unfortunate that courts have been deprived of that choice by the express language of Article 22(3)(b) read with Article 22(1). [Emphasis mine]" What is crucial here, is the Court relying upon Article 22 itself as the yardstick to determine what is just, fair, and reasonable. I argue that this is incorrect, because after Maneka Gandhi the test of procedural fairness flows from Article 21 and not Article 22. In any event, no part of the Constitution itself remains above scrutiny, and the helplessness of the Court is akin to crocodile tears. 

Conclusion

The idea of a 'Complete Code' in Article 22 was unassumingly sustained by the Supreme Court and eventually buried by it as well. The consequences of this, however, are something that the Court continues to struggle with. While I have focused on clause (b), the retention of Article 22(3) itself despite the Supreme Court heralding a 'due process' standard is unacceptable. Looking at decisions post 1980 concerning preventive detention, it is clear that judges appreciated the problem. Successive decisions did mollify the deprivation of a right to counsel. In Nand Lal Bajaj v. State of Punjab [(1981) 4 SCC 327], the Court held that a detenu had a right to counsel where the Government was permitted to engage a lawyer to argue before the Advisory Board established under a preventive detention law. This, it reasoned, would violate Article 14 and Article 21. In A.K. Roy, after expressing its dire helplessness the Court did go ahead and hold that a person detained had a right to be assisted by a friend ["who, in truth and substance, is not a legal practitioner"] in making a representation. The Court has re-written Article 22(3) to this limited extent, but it dare not take the plunge and declare it wholly redundant.

[kudos to Gautam Bhatia for helping think this post through]     

Preventive Justice Part 1 - The History behind Article 22

India's Constitution elaborates on certain Fundamental Rights guaranteed to individuals. Some are limited as citizenship rights [Article 19] while others extend to all persons within the Union [Article 21]. As the title suggests, this post is concerned with Article 21's not-so-celebrated cousin, Article 22 [the cousin terminology is deliberate, as I will show later]. I first came across the very interesting history behind Article 22 while reading Granville Austin's Cornerstone of a Nation, and then traced the discussion in the Constituent Assembly Debates while supplementing it with some independent research. It is also discussed by Mr Seervai in his commentary on Articles 19-22 but only to the extent necessary for furthering his argument. In this post, I first look at the text of Article 22 and then the history behind its inclusion in the Constitution.

Right to Freedom - Articles 19-22

Part III of the Constitution runs from Article 12 to Article 35, but we often end up missing how the framers grouped certain rights together. Articles 19-22, for instance, are couched under Right to Freedom. One possible explanation offered is that Article 19 confers positive freedoms while Articles 20-22 confer negative freedoms by limiting what the State can do. Article 21 states that No person shall be deprived of his life or personal liberty except according to procedure established by law. 

This is followed by Article 22, which immediately tells us exactly how the State can take away this right to life and personal liberty. So, we find general protections in Articles 22(1) to (3): every person arrested must be informed of the grounds of arrest and be permitted to engage legal counsel of her choice [Article 22(1)], as well as be produced before a magistrate within 24 hours of being detained [Article 22(2)]. This, interestingly, is followed up by 22(3) which specifically takes away these rights in case of enemy aliens and persons arrested and detained under preventive detention laws. The remainder of Article 22 - clauses (4) to (7) - moves on to lay down the limits of preventive detention laws and confer certain limited rights upon detenus. Thus, ordinarily preventive detention is capped at three months unless reviewed by an Advisory Board which recommends otherwise [Article 22(4)], where the case is not of a category warranting special treatment [Article 22(7)]. Detenus have a right to be informed of the grounds behind a detention order as soon as may be [where disclosure is not contrary to public interest as per Article 22(6)], and also to make a representation against the order [Article 22(5)]. 

The majority of Article 22 appears a precision-based instrument chipping away the edges of the basic rights guaranteed by Article 21. It has frequently been attacked throughout the history of independent India, with detractors often pointing to the worst excesses of the Emergency in 1975 as indicative of the misuse Article 22 allows. What if I told you that Article 22 was introduced into the Constitution in order to prevent the worst excesses from materialising? That is the lesson we learn from history, to which I now turn.

Draft Articles 15 and 15-A and the 'Due Process' Fallout

The use of procedure established by law to safeguard the right to life under Article 21 of the Indian Constitution, as against the due process clause, is a wonderful story in itself [It is part of a separate file in the National Archives of India no less titled Article 15: Due Process of Law]. The initial Draft Article 15 (which became Article 21) contained the words due process. While the Constituent Assembly was mulling over the draft in India, Sir BN Rau - who was the Official Constitutional Adviser - had been entrusted with the task of eliciting opinion from important personalities abroad. During this time he met Justice Frankfurter, who strenuously advised him against the incorporation of the due process clause. 

Sir BN Rau considered these suggestions important enough to send a memorandum across by airmail dated 11 November 1947 (a very expensive proposition back then). He subsequently sent across his views in a formal Report in December, 1947. KM Pannikar, an Assembly Member, wrote to Sir Rau on 30 December 1947 discussing this report, and his happiness that "Munshi's [KM Munshi, member of the Assembly] due process clause has got a knockout blow from Justice Frankfurter." On 7 April 1948, Sir Rau wrote to Justice Frankfurter to inform him of the Assembly having substituted due process with procedure established by law in Article 15 of the Draft Constitution. 1948 saw fervent efforts to re-introduce due process led by KM Munshi. On 13 December, Dr. Ambedkar was asked to give his final reply on this tussle between the Legislature and the Judiciary. He is famously quoted as saying "It is rather a case where a man has to sail between a Charybdis and Scylla and I therefore would not say anything."

The stoicism in this statement does not mean that Dr. Ambedkar was simply going to accept this changed state of affairs. He supported the due process clause, and was affected by the intense criticism this withdrawal of due process drew from various circles. In September 1949, months before the conclusion of the debates, the Drafting Committee (headed by Dr. Ambedkar) cited this backdrop and introduced Article 15-A in the Assembly. This, today, is Article 22 barring some minor modifications. Article 15-A was introduced as a measure of "compensation for what was done then in passing Article 15" since removal of due process meant Article 15 conferred a carte-blanche on the executive to arrest and detain persons. Equally, existence of preventive detention as a subject on the Federal and Concurrent Lists of Business without due process protection meant the legislature could not be checked in passing oppressive legislation. These twin factors seemed to have convinced Dr. Ambedkar of the need to have express fetters placed on the possibility of arrest and detention of persons in independent India. Dr. Ambedkar spoke for the Drafting Committee when he said that "we providing for the substance of the law of 'due process' by the introduction of Article 15A". 

Conclusions and Questions

Therefore, Article 22 was in fact a measure to protect, rather than curtail, the right to life and personal liberty. Mr Seervai discusses this in his Commentary, to conclude that perhaps it would have made better sense to have the first two clauses in Article 22 as part of Article 21, making a separate Article for the exclusions. Looking at what happened subsequently, a differently drafted Article 21 might have led to a differently written judgment in Maneka Gandhi. It might have prevented the Supreme Court from going so far as to incorporating the substantive due process standard that the Constituent Assembly so painstakingly chose to avoid. Where does Maneka Gandhi leave the due process that Article 22 represented for the Constituent Assembly and Dr. Ambedkar? The Supreme Court has not considered this question fully, yet, although some seepage of Maneka jurisprudence into Article 22 has definitely resulted. In the next post we will address some of these questions arising out of the Supreme Court's engagement with Article 22 of the Constitution.