What's in a Name? A Lot, Especially if that Name is "Anti-National"

Forgive the plain title as this writer is at his wits' end, exhausted, after a week-long wild goose chase. The object of my search? The meaning of "Anti National" in context of the law.

The immediate cause behind this exertion was set of the guidelines issued by the Delhi High Court's High Powered Committee on how jail authorities should exercise their discretion towards releasing inmates to manage the risks posed by Covid-19 [The most recent one is here]. After detailing what kinds of prisoner categories should be considered favourably for release, the Committee listed categories of undertrial prisoners — persons who are not convicted of crimes and theoretically still presumed innocent — which should not be considered for release. One such category, is

"Cases investigated by CBI/ED/NIA/Special Cell of Delhi Police, Crime Branch, SFIO, Terror related Cases, Riot cases, cases under Anti-National Activities and Unlawful Activities (Prevention) Act etc." [emphasis mine]

This left me perplexed as to what the Committee might have meant by "Anti-National" activity, since the guidelines themselves don't define the term. The "under" in the portion I extracted has got to be a typo, as there is no statute under which "anti-national activities" are proscribed. Even so, does that mean that one gathers the meaning of this phrase from its context, i.e. is anti-national activity a broad term that includes (i) riot cases, (ii) terror related cases, and (iii) cases under the UAPA? But then what about the innocuous "etc." at the end of that category? Also, considering that the purpose of the Committee is to give clear guidance on how to exercise discretion, does it help to use such undefined phrases which give no guidance and leave the jail authorities to their own devices?

Having found no satisfactory answers within the Guidelines, I decided to venture look elsewhere.

Statutes / Constitution

At one point in time the term "Anti-National" was part of the Indian Constitution itself: Article 31-D was added during the Emergency by the 42nd Amendment, to basically render laws for made for "prevention or prohibition of anti-national activities" exempt from judicial review under Articles 14, 19 or 31 of the Constitution. It had a long explanation on what the term meant:

... (b) 'anti-national activity', in relation to an individual or association, means any action taken by such individual or association — 

(i) which is intended, or which supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India or which incites any individual or association to bring about such cession or secession;

(ii) which disclaims, questions, threatens, disrupts or is intended to threaten or disrupt the sovereignty and integrity of India or the security of the State or the unity of the nation;

(iii) which is intended, or which is part of a scheme which is intended, to overthrow by force the Government as by law established;

(iv) which is intended, or which is part of a scheme which is intended, to create internal disturbance or the disruption of public services;

(v) which is intended, or which is part of a scheme which is intended, to threaten or disrupt harmony between different religious, racial, language or regional groups or cases or communities; ... 

Never before or after this brief interlude has the Constitution, or any statute for that matter, seen such an extensive engagement with the phrase. That does not mean that legislatures have entirely abandoned using the term either. Below is a short, non-exhaustive, list of statutes (both state and central) where we can still find reference to "Anti-National":

1. Arms Act, 1959 — The original Statement of Objects and Reasons [SOR] for the 1959 legislation referred to "anti-social or anti-national elements" using weapons and bombs, and the SOR for the 1988 amendments to the Act also refer to challenges posed by "terrorist and anti national elements"; 
2. National Security Act, 1980 — The SOR of what is today's the primary central statute on preventive detention referred to the "current crisis" posed by "anti social and anti national elements including secessionist, communal, and pro-caste elements" which "pose a grave threat ... and sometimes even hold society to ransom.";
3. Goa, Daman and Diu School Education Act, 1984 — Section 12 states that employees are to be governed by a code of conduct, and Section 12(2)(b) prescribes that the "Code shall prescribe, inter alia that no employee shall propagate  anti-national, communal, caste, or sectarian outlook.";
4. Cable Television Networks (Regulation) Act, 1995 — The SOR states that subscribers and others are unaware of their rights and duties in respect of "protection of subscribers from anti-national broadcasts from sources inimical to our national interest";
5. Uttarakhand Police Act, 2007 — Section 2(i) defines "internal security" as meaning "preservation of sovereignty and integrity of the state from disruptive and anti-national forces";
6. Sikkim Police Act, 2008 — Section 2(g) defines "internal security" in language identical to the 2007 Uttarakhand Act; [Note: similar clauses can be found in other recent police acts as well]
7. U.P. Fighters of Democracy Act, 2016 — The Act creates a framework for paying honour money to those who stood up against the Emergency. Section 5 of this statute specifies conditions for cancelling the payment of honour money, and one condition in Section 5(i) is the "participation in any crime of moral turpitude and in any anti-national activity" (Oh, the irony);
8. M.P. Loktantra Senani Samman Adhiniyam 2018 — The Madhya Pradesh version of the same law, and Section 9(1)(a) provides for an identical condition as the Uttar Pradesh law; [Note: similar clauses can be found in other state laws passed under Article 348(3) of the Constitution]
9. U.P. Private Universities Act, 2019 — Section 3 of the statute lays down conditions for establishing a university, and Section 3(2)(r) stipulates that the university "to undertake neither to be involved nor to permit anyone to cause or promote anti national activities inside the campus or under the name of the university"  
10. Besides these categories, there is also subordinate legislation passed through notifications where engaging in "Anti-National" acts deprives persons of some benefits or allows for prohibiting activity. This includes: (i) Government procedures on giving advertisements to newspapers etc., (ii) Service Rules for public servants, (iii) CBFC guidelines on censorship, (iv) Cancelling allotments of land under Government schemes, and (iv) As basis to issue Look-Out Circulars against persons. 

Courts and "Anti-National" Conduct  

I also scanned cases spanning 1950 to 2020 from India's Supreme Court, the many High Courts, and some Central Tribunals, where the term was used. This exercise showed that courts have commonly used "Anti-National" as an adjective to describe a wide array of conduct, such as: 

1. Espionage / Spying;
2. Conduct prosecuted under anti-terror laws such as TADA / UAPA;
3. Making Secessionist / Communal Speeches;
4. Activity such as food adulteration, illicit drug trade, making / handling counterfeit currency, corruption, smuggling, etc. punishable under various laws or legal grounds for preventive detention. [Note: A vast majority of cases seemed to fall within this category]

Here, courts not only called such activity "Anti National", but often referred to it as "anti-social and anti-national" conduct. 

The other insight gained from analysing cases was seeing how executive authorities used the term "Anti National" while exercising their discretion. Thus, I came across government school contracts where the employee was barred from "anti national / anti government" activity. But most interesting in this regard was the context of preventive detention orders, which routinely carried the phrase. This was especially so in detentions ordered under the Jammu & Kashmir Public Safety Act, 1978. Curiously, I only found one case which pointed out that engaging in "Anti National" acts was not one of the possible grounds enlisted in the statute authorising preventive detention [Mohd. Saleem Wani v. State, 2010 J&K HC]. 

It was mildly disconcerting that from the large sample size that I played with — all cases between 1950 to 2020 — I found only four cases where courts had offered any semblance of discussion on what this vague idea of "Anti National" conduct might entail. Three of these are:

1. In K.V. Subbarao [AIR 1967 AP 202], the Andhra Pradesh High Court was considering the legality of a detention ordered under the Defence of India Rules, 1961, and the detention order stated that the activities of the Petitioner were "anti-national". Refuting the contention of the Petitioner that this was a vague, undefined phrase, that found no mention in the statute and rules and thus could not be the basis of a detention order, the Court held that "Anti-National Activity" had a wide scope and covered all kinds of activities for which detention could be ordered under the law, viz. acts prejudicial to the maintenance of public order, India's relations with foreign powers, maintenance of supplies, conduct of military operations, and the defence of India. 
2. In Gurkirpal Singh [(1990) 97 PLR 102], the Punjab High Court differentiated between political activity from "anti-national activity" by holding that only the latter could be basis to refuse appointment to a probationer [Here, it was alleged that the appellant was keeping contacts with extremist elements].  
3. In S. Thirumalaiappan [2011, Madras HC], the Madras High Court explained that the phrase "anti national activities" which came in Rule 40 of the Tamil Nadu Pension Rules, 1978 ["anti national activities such as espionage, sabotage, and the like"] as a valid basis for denying compassionate allowance, included a public servant found committing crimes such as cheating and forgery.

The fourth, and the most comprehensive discussion, comes in Priya Parameswaran Pillai [2015, Delhi]. Here, a Look-Out Circular had been opened against the Petitioner which barred her from leaving India. One of the purported reasons was her engagement in "Anti-National" activities, which according to the government was her intention of talking about matters of Indian state policy on before a committee of British parliamentarians, which had the "potentiality of degrading the image of India in the eyes of foreign nations, leading to a regression in the country's economic activities and endeavours...".

The basis for executive power was a clause 8(j) in the official memorandum, which allowed issuing a Look Out Circular "In exceptional cases, ... without complete parameters and/or case details against CI suspects, terrorists, anti-national elements etc. in larger national interest…." (emphasis mine). The Court acknowledged the inherent vagueness in the phrase "Anti-National":

Pertinently, the word anti-national does not find a place in most dictionaries; it is in effect a combination of two words. If one were to deconstruct the meaning of the word anti-national, one would perhaps have to look to the meaning of the word, “Nationalism”. The nearest equivalent to the word ‘Nationalism’ would be patriotism. Patriotism as a concept would be linked to nationhood. Nationhood has several attributes which are, inter alia, inextricably connected with symbols, such as: the National Flag; the National Anthem; the National Song; and perhaps, the common history, culture, tradition and heritage that people of an organized State share amongst themselves.

In respect of each of these attributes of nationhood, there may be disparate views amongst persons who form the nation. The diversity of views may relate to, not only, the static symbols, such as, the National Flag and National anthem, etc. but may also pertain to the tradition and heritage of the Nation and the manner in which they are to be taken forward. Contrarian views held by a section of people on these aspects cannot be used to describe such section or class of people as anti-national. Belligerence of views on nationalism can often lead to jingoism. There is a fine but distinct line dividing the two. Either way, views held, by any section or class of people, by itself, cannot be characterized as anti-national activities. [emphasis mine]

The Court acknowledged that this inherent vagueness had the potential to confer arbitrary discretion upon the executive which could label any activity as "anti-national" based on the subjective views of certain officers. Considering that the term was also notably absent from the enumerated list of valid grounds to restrict the freedom of movement under Article 19(2). Accordingly, to render it legal, the Court held that the meaning of anti-national must be gleaned from the rest of the clause, and thus must refer to activities such as terrorism, or counter-intelligence. 

Taking Out "Anti-National" and Restoring the Law's Legitimacy

The 42nd Amendment is considered to be the greatest frontal assault on the character of India's democracy and its Constitution. Article 31-D with its constitutional cloak of safety for statutes condemning the anti-national was an integral part of that dastardly amendment. While it may no longer be more than a footnote within the constitutional text itself, the review of statutes confirmed that the concept continues to capture the imagination of our legislatures.  

The list of statutes and subordinate legislation within which the notion of anti-national activity provided here should provoke alarm in any right-minded person to whom arbitrary executive power causes concern. What that indicative list shows is that an undefined category of "Anti-National Activity" is being used across various contexts such as criminal laws, labour laws, and social welfare laws, as a basis to confer discretionary powers upon executive officers. Exercising these powers entails arbitrarily labelling conduct with extremely pejorative connotations and tarnishing a person's reputation. Not to mention the arbitrary interference in the enjoyment of basic freedoms, and a potential to bring about life-changing consequences by stopping welfare benefits, terminating employment, or causing incarceration.

That courts have uncritically bandied about this phrase in decisions (with the honorary exception of one case) is even more alarming. It might be alright for executive authorities to use high-pitched phrases to make arguments, but it is not alright for courts to reduce a phrase with such obvious taint as an ordinary adjective to describe a garden-variety of conduct. Using vague ideas to justify conclusions means that the arbitrariness of executive officers is transplanted on to the courts. What this leads to is a situation where a Single Judge of the Delhi High Court recognises the vagueness of the "anti-national" in Priya Pillai and the potential for arbitrary discretion that it entailed. Yet, just a few months later in March 2016, a different Single Judge of the same Court passed orders in Kanhaiya Kumar's bail petition [Discussed on the blog], extensively used the same vague phrase throughout the order, and even made it a condition for granting Kumar bail that he take all steps to "control anti-national activities in the [JNU] campus". Words fail me.

A review of the decisions and statutes confirms that far from it being imperative to the functioning of our legal system, the category of "anti-national" is almost entirely unnecessary and frivolous. As identified by the Delhi High Court in Priya Pillai, it is nowhere mentioned in the enumerated grounds for restricting the basic freedoms, and can only be made sense of by being fit into one of those phrases. If that be so, what is the point of persisting with the phrase and inflicting persons with its horrible taint which they carry for years in our system of delayed justice? The value addition is extremely minimal. The damage done to the legitimacy of the law and the ideals of the Constitution, is incalculable.    

Which brings me back to the Delhi High Court's High Powered Committee. When the guideline already refused to extend temporary mercy to imprisoned persons who stand accused in riots cases, corruption cases, cases under anti-terror laws, drug cases, corruption cases, and money-laundering cases, what was left to be covered by way of this amorphous category of "Anti-National Activities"? Nothing. So why not bunk it in the next revision, and restore some bit of the law's legitimacy in the process.

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.