The Other Origin Story of Preventive Detention in Independent India - Article 373 and the Extension of Duration Order

Preventive Detention, the practice of arresting and detaining a person in custody without a trial in court, has a long and storied history on the Indian subcontinent. That it was not only retained by the founders of independent India, but was given place in the Constitution of India, continues to raise eyebrows and lead the curious down the alleyways of history to learn about the peculiar set of circumstances that led to insertion of Article 22 of the Constitution of India. 

On this history of Article 22 — originally Article 15-A in the Draft Constitution that was deliberated in the Constituent Assembly — there is today a lot of writing [For instance, Granville Austin's books, Rohan Alva's book, Hallie Ludsin's book, and even old posts on this blog form 2016!]. Studying this history helps retain a sense of faith (for the faithful), as it shows that Article 22 was never meant to cement or legalise preventive detention (which was done when the Assembly passed the legislative lists) but to try and make sure that there is a respectable set of safeguards that no future government can avoid as it exercises powers of preventive detention.

There is another story, though, which has not been written about as much or at all. This is about Article 373 of the Constitution and promulgation of the Preventive Detention (Extension of Duration) Order on January 26, 1950, the day India became a Republic [pg. 8 here]. Let's get to it.   

'A Disastrous Situation'

Draft Article 15-A was discussed in September 1949 in the Constituent Assembly. As mentioned above, it was intended to introduce safeguards that could bind governments while exercising preventive detention powers. The key guarantee here, arguably, was the prescription to limit the period of detention by government to three months, and permit lengthier detention only if it was confirmed by an advisory board consisting of a judicial member. 

Either knowingly or unknowingly, the Constituent Assembly had just thrown up a curveball for the mandarins responsible for administering the affairs of state. A big part of the efforts to maintain law and order in post-partition India was to use preventive detention powers and detain persons for varying lengths of time. These powers were exercised at the level of the provinces through a motley bunch of public order statutes, almost all of which permitted preventive detention but did so by prescribing differing procedures. Not all of these statutes required an advisory board with judicial members to keep persons detained. Would all persons detained under such laws have to be released at the expiry of three years when the Constitution came into force? 

It appears that the chief mandarin in the Ministry of Home Affairs, HVR Iengar, was vexed with this question. He discussed it with R. Gupta, Home Secretary in the West Bengal Government while on a visit there and brought this "difficulty" to the attention of the Drafting Committee. As he recounted to Gupta in a confidential letter dated November 12, 1949, Iengar had pointed out to the Drafting Committee that "if the constitutional position was that persons who had completed more than three months of detention would have to be released on the 26th January, 1950, then the situation, from the security point of view, would be disastrous." 

The Drafting Committee, evidently, paid heed to Iengar's concerns. It "now recommended" insertion of Article 373 to the Constitution which sought to confer a power upon the President — in short, the Executive — to pass an order which would temporarily prevent the enforcement of Article 22 in full and allow the three-month limit to be extended. The Draft Order so prepared by the Drafting Committee provided that detention of persons detained (for any litany of reasons) "may be extended" beyond three months without orders of an Advisory Board, up to a maximum period of one full year from the date of the Order.  

The disastrous situation could thus be averted, and Iengar informed Gupta that the Government was taking "necessary steps" to pass this draft order on January 26.

Extending All Detentions For a Year?

HVR Iengar's confidential letter of November 12 was sent out to all provincial governments and the States Ministry of the Government of India. There were seventy-five days left till January 26, and it made for a frantic last two months across governments to ensure that no loopholes were left which accidentally allowed detenus to be freed. To this end, the Government of India sent out instructions on December 31. 1949, to all the provinces asking them to "forward immediately by telegram a statement indicating in exact terms the grounds on which such (preventive detention) prisoners have been detained.". A separate letter of the same date shared a draft of the order to be passed, and sought comments "not later than" January 14, 1950. (All emphasis in original). A stream of telegrams followed, but very few offered substantive comments. The proposed draft of the order shared by the Government seemed comprehensive enough to them.

This process threw up a different problem for consideration too. Replying to the request for comments, the Chief Secretary to the Government of the United Provinces flagged concerns on December 19, 1949 that, while an Advisory Board already existed, there were other parts of their preventive detention law [The United Provinces Maintenance of Public Order (Temporary Act, 1947] that were inconsistent with Article 19 and 22 of the soon-to-be passed Constitution. 

We get a glimpse of how the Draft Order was understood by the Government of India in the reply letter dated January 20, 1950 issued to the United Provinces. Interestingly, this letter referred to not one but two Executive Orders that would be issued by the President for preventive detention. The first of these, to be issued on January 26, "will permit detention under Provincial Acts up to a period of one year ... and will also make it unnecessary during this period to submit the cases for review by the Advisory Boards in order to get over the limit of three months" and, critically, as a result "the extension will be automatically granted to all detentions under provincial acts by the terms of the proposed order." (Emphasis mine). In other words, while the draft had said that the period of detention "may" be extended, the Government understood this to mean that detentions shall be extended without exception. Since all detentions would be extended, there was no need felt to amend any preventive detention laws for that immediately, and "it will be sufficient if these acts are brought into accord with Article 22 of the Constitution at any time before the expiry of one year's period" (Emphasis mine) for which the Central Government would issue a second order by April 1950 detailing what changes are required in all provincial laws.

The Curious Shift in Stance

On January 26, 1950, the Gazette of India (Extraordinary) published order C.O.8, titled the "Preventive Detention (Extension of Duration) Order, 1950" issued in exercise of powers conferred by Article 373. It did not contain any exhaustive list of cases for which detention could be extended, and permitted extending the time period of detention for only three further months. This was a big change from the proposed extension of an entire year, which we know that the Government had committed to in writing less than a week prior. The seeds of this change were, presumably, sown already in the idea of passing two Presidential Orders instead of one. Since only three months were seen as being required to bring the existing legal machinery in tune with the Constitutional scheme on preventive detention, there was no need to detain persons for an entire year.

The archives suggest that not every province received copies in time or in sufficient numbers, as frantic telegrams were sent to the Central Government asking for additional copies to be sent at the earliest. It also appears that the original order issued in the Gazette had an embarrassing typographical error, having gotten the date wrongly written as January 20 (incidentally, the date of the letter sent to United Provinces), and not January 26, 1950! This was not the only problem in the Order, though, which the Home Ministry admitted on February 13, 1950 was "revised and issued at very short notice" because of which "the full implications of its provisions could not be examined in detail". The implication being referred to was this: the Order potentially created a three month upper limit even for those persons detained after January 26, 1950 under laws fully compliant with the constitutional scheme. These and other issues were "being further examined" at the time. 

Post-Script

As it turned out, the Preventive Detention (Extension of Duration) Order 1950 did not even tide over the three months as had been planned. 

The problem flagged by the United Provinces Government in December 1949 of provincial laws being inconsistent with the Constitution and therefore void was seized upon by enterprising lawyers in cases already pending at the time of the Constitution's coming into force. It led to the Patna High Court holding detentions invalid on February 14, 1950 in Brahmeshwar Prasad [AIR 1950 Patna 265] concluding that the Order could not save the provincial law itself from the vice of constitutionality (The judgment came one day after the Home Ministry's letter and interestingly also suggests that the Government Lawyer did not have access to proper copies of the Gazette with the Extension of Duration Order). 

Much before this, though, the Government of India had already begun to draw up plans to render the Presidential Order redundant by passing a Central Law on the subject. In a letter of January 31, 1950 sent by the Home Ministry to all provinces, we find reference to this plan. Perhaps the judgment of the Patna High Court, coupled with the many problems thrown up by the language of the Presidential Order, are what led to the ungodly speed with which the Preventive Detention Act was tabled and cleared on February 25, 1950 by the Provisional Parliament. And the rest, as they say, is history.

[The post is based on a file being F.No.10(95)-P/49 titled "Protection against arrests and detention in certain cases - Clause (7) of Article 22 and 373 of the New Constitution. Issue by the President of the Preventive Detention (Extension of Duration) Order, 1950". It can be viewed, for free, on the National Archives of India portal.]

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

(This is a guest post by Anushka Aggarwal)

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

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

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

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

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

  

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

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

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

The Role of Judicial Review

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

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

Judicial Review and Constitutionalism

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

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

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

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

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

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

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

What Next?

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

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.

Guest Post: "Remedial Injustice" — Delays in Preventive Detention rendering it a Meaningless Remedy

[This is a guest post by Varun Ahuja]

On December 23, 2021, the Madras High Court quashed the order authorising preventive detention of one Mr. Kishore K Swamy, under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drug-offenders, Goondas, Immoral Traffic Offenders, Forest­-offenders, Sand-offenders, Sexual-offenders, Slum-grabbers and Video Pirates Act of 1982, which in the interest of brevity is commonly referred to as the Tamil Nadu Goondas Act. Kishore Swamy, who has been referred to in reports as a ‘prolific troll’, was well-known for harassing and targeting women journalists on twitter. His preventive detention was authorised for circulating defamatory posts against Tamil Nadu Chief Minister MK Stalin and former DMK leaders Annadurai and M Karunanidhi. While the Act itself is arguably overbroad and its application in the present context warrants scrutiny, this post is restricted to analysing the delay in disposing off the Habeas Corpus petition by the High Court. 

One of the many arguments raised on behalf of the detenu while challenging the preventive detention order was a delay in considering the representation submitted by the detenu against the detention order. The government contended that the detention order cannot be quashed only on the ground that there was delay in considering the representation. However, it is settled [Rekha v. State of T.N., (2011) 5 SCC 244 (Para 12)] that preventive detention orders can indeed be quashed if there is delay in passing the detention order, or delay in executing it, or delay in deciding the representation of the detenu. 

In the present case, the detention order was passed on 24.06.2021, the representation was submitted on 09.08.2021. Government asked the detaining authority to send remarks against the detention order on 11.08.2021 and they were received on 13.08.2021. And then finally, the representation was rejected on 20.10.2021. Therefore, the argument was that there was 2 days unexplained delay (between 11.08.2021 and 13.08.2021) in submitting remarks by the detaining authority and 42 days unexplained delay (there were 68 days between 13.08.2021 and 20.10.2021 but 26 days were government holidays) in considering the representation. In its short order, the Court agreed with the submissions of the petitioner that there had been a delay of 2 days by the Detaining Authority and an unexplained delay of 42 days in considering the representation (Para 10) – thereby quashing the detention order. 

Time at the High Court

Assuming that the detenu was taken into custody when the detention order was passed, i.e. 24.06.2021 (even though media reports indicate, he was arrested much earlier on 14.06.2020), the person had spent 182 days in custody till the High Court ultimately quashed the order. It is important to note, that there was no substantial question of law involved in the case. All that the High Court was asked to do was to look at the case records and require an explanation for the delay from the government. There appears to have been no real delay in filing the habeas corpus petition since the registered date of the case was 23.07.2021 (H.C.P. No.1134 of 2021). The record on the ecourts website reflects that the case was listed on three occasions – 28.07.2021, 22.09.2021, 10.12.2021 — with the judgment delivered on 23.12.2021. As I have been unable to locate order-sheets online, it is not possible to state why these adjournments were granted and, more importantly, why there were delays of 2-3 months at a time between hearings (essentially, was this due to a specific request, or down to the general backlog in the court). 

On the judgment itself, while it is understandable for judgments to be brief and to the point, perhaps in the context of preventive detention a Court ought to provide us with certain basic details about the procedural life of the preventive detention so as to enable observers and the public at large to get a glimpse of the workings of the state machinery. It might not be a need elsewhere, but since preventive detention does not involve court hearings and proceedings before advisory boards are in camera, there is very little scope for a curious and concerned citizen to know what is going on. I would go so far as to contend that it is imperative in the preventive detention context, because while use of this power is sanctioned by the Constitution, it has to be read strictly and even a minor deviation from the procedure makes the order liable to be quashed. And an unavailability of this kind of data removes any possibility to analyse how the State has been using (or abusing) its powers under preventive detention laws. 

A Meaningless Remedy

There is no context in which the homily of “justice delayed is justice denied” rings truer than for the context of habeas corpus. This remedy is at highest risk of being rendered meaningless if courts do not decide cases quickly, one way or another. Sadly, available evidence suggests that Indian constitutional courts have miserably failed to keep this in mind. In an empirical study conducted by Mr. Shrutanjaya Bhardwaj analysing habeas corpus petitions disposed by the Supreme Court from 2000-2019, it found that the Supreme Court generally took more time than the maximum period prescribed for detention (generally one year), to hear and decide a habeas corpus petition. As a result, it reduces the writ of habeas corpus to a meaningless remedy. For instance, in the previous year, the Jammu and Kashmir High Court Bar Association had written to the Chief Justice of India that after the abrogation of Article 370, when many people in the valley were detained, where the letter stated that while over 600 habeas corpus petitions had been filed by persons preventively detained before the High Court of UT of J&K at Srinagar, not even 1% of such cases were decided by the J&K High Court by then. 

The Bar Association in the letter cited the case of its President, Mian Abdul Qayoom, as an illustration of the issue. In the case of Mr. Qayoom, the detention order was passed on 07.08.2019, a single judge decided the writ petition on 07.02.2020 against which an Letter Patent appeal was preferred which was decided on 28.05.2020. Therefore, in this case too, the petition spent about 182 days (6 months) at the High Court. An appeal was preferred before the Supreme Court which was registered on 18.06.2020 [SLP(Crl) No. 002833 - 002834/2020] and finally decided on 29.07.2020. Even then, the Court did not rule on the legality of the detention order but decided the petition on the government’s concession that since the Petitioner had anyway served the maximum period of detention he shall be released. All in all, Mr Qayoom was incarcerated for the maximum period (one year) prescribed under law without trial, without ever receiving final adjudication if his detention order was indeed legal. 

The delay caused by a constitutional court in ruling on a habeas corpus petition has a dramatic effect on how much time the person serves under preventive detention, in case its judgment is challenged in appeal. A High Court being the first judicial body adjudicating on the legality of preventive detention must be more proactive in deciding habeas corpus petitions. This in turn, will allow the Supreme Court enough time in deciding the appeal and not let the remedy become meaningless.

Rendering Criminal Law Meaningless: On the Draconian Telangana Preventive Detention Law

In 2017, the Telangana government passed a Bill to ratify and ordinance which had made the "Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land-Grabbers Act 1986", into the "Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substance Offenders, Arms Offenders, Cyber Crime Offenders, and White Collar or Financial Offenders Act 1986". The Centre had at first questioned this expansion — not due to any rights' concerns, but on grounds of legislative competence — but the President approved the act in 2018, leading to Act 13 of 2018 being passed by the Telangana government (with retrospective effect). Which gave us the Act. 

This preposterously named statute is not designed to create fast-track criminal courts for the many kinds of "offenders" it lists out in the title, or provide different rules on bail, or even reverse the onus of proof. Rather, this statute refers to categories of persons against whom the Telangana Government can exercise its powers of Preventive Detention. To understand what this process of Preventive Detention is all about, you should take the 4 minutes it takes to go through this wonderful set of illustrations by PenPencilDraw. 

Simply put, it is a process which enables police to jail people for up to 3 months at a stretch even if they have not committed a crime by a process which involves no proper judicial scrutiny of the allegations, and no right to counsel. What makes preventive detention even worse is that it is often used in tandem with the regular criminal justice system for offences allegedly committed by persons, where detention orders are passed when accused persons are pursuing bail applications or are just about to be released on bail. 

The expanded Telangana Preventive Detention Law is, in fact, seemingly designed to operate in this way. The various categories of "offenders" identified under the Act are defined in a way which expressly links them to the commission of different cognizable and non-bailable offences — for instance, "sexual offender" is defined as anyone who has committed or abetted commission of offences under Protection of Children from Sexual Offences Act 2012, besides certain other Penal Code offences. If a person is accused of having committed such a crime, they will be arrested, and any "threat" to public order posed by them is therefore necessarily linked to their release, or potential release, on bail by a court.    

In this manner, the executive authority fully subverts the judicial process, sending the clear message that it does not matter whether a court applied its mind to a case and thought a person deserves to be released on bail - we can still keep her imprisoned.

When the Telangana Preventive Detention Law was recently involved in a case before the Supreme Court, the bench was surprised that it had not yet been challenged and called the law "draconian" [This was during the course of hearing and deciding Banka Sneha Sheela (Crl. Appeal No. 733 of 2021, decided on 02.08.2021)]. Preventive Detention, as I have argued elsewhere, is inherently draconian in a legal system which is based on the idea of a fair trial being necessary to impose severe sanctions of imprisonment upon anyone. Time and again, states which preach fidelity to this idea endorse Preventive Detention, relying upon that old friend called necessity. This argument acknowledges the need for Preventive Detention but, at the same time, also recognises the need for keep it confined to a domain of extraordinariness. 

By and large, it is fair to say that this has been the Indian approach, in theory, since the Constitution was passed in 1950. Which is what makes statutes such as the Telangana Preventive Detention Law so strikingly dissonant to the law, and so clearly draconian. I say statutes such as the Telangana law, because this is perhaps only the most egregious example from similar laws prevailing across states. And it is also apparent that other states have flirted with the idea of expanding the scope of their Preventive Detention laws in the past — Tamil Nadu, for instance, took a step back in 2014 considering an expansion would run afoul of the Constitution.

What Telangana has done with its Preventive Detention Law, and what other states have either wanted to do in the past and might yet do in the future, is to effectively render the criminal process redundant and in its place erect a crude system of speedy "justice" through jail time for persons "known" to be criminals. The Supreme Court has said that it is cannot be a quick alternative to the regular criminal process, but honestly, that is what Preventive Detention is today. And in a criminal process plagued by delays at every level, it is easy to understand why there is an acceptance for such measures within the government, if not also within society at large. 

Sure, a state government may suffer the odd rap on the knuckles in court for adopting tactics where such obvious deprivation of rights is involved. But on a balance of considerations, is that not worth the cost when what the government stands to gain is a reduction in the crime rate. Want to curb spurious seed sales? Bring it under Preventive Detention. Want to show a tough stance on sexual offences? Bring that also under Preventive Detention. Same for cyber crime, rave parties, and any other kind of undesirable activity you can find. 

Is not the deprivation of liberty for a few justified when it leads to the improvement in the quality of life for the many? This is a false equivalence if there ever was one — this relationship between crime rates and Preventive Detention is no scientifically identified cause and effect but the police crediting any measure they like after the data comes in. It is obvious that they will credit measures which confer upon them almost boundless power and take away the "hassle" of criminal procedure. But the problem is that this false equivalence sells and is easy to fall for. Which is why more states are likely to go down the Telangana route in the future, I suspect, as it is unlikely that any of them are going to actually make the kind of investment required to actually improve how the criminal process functions.

The Telangana Preventive Detention Law might yet be successfully challenged in court and trimmed down to size, but until the criminal process begins to assume some degree of speed, the attractions of "doing justice" through Preventive Detention will remain very high for governments. 

Dr. Kafeel Khan and Our Punitive Preventive Detention Law

On August 11, the Supreme Court had requested the Allahabad High Court to expeditiously decide the habeas corpus petition filed by Nuzhat Perween for her son, Dr. Kafeel Khan. The petition challenged orders for his preventive detention under the National Security Act of 1980 (NSA) that were passed on February 13, 2020. Initially filed before the Supreme Court in February itself, the petition was sent to the Allahabad High Court in March, where it was heard multiple times before, finally, a Two Judges’ Bench passed a judgment on 01.09.2020 in Nuzhat Perween v. State of UP and Anr., [Habeas Corpus WP No. 264 of 2020 (decided on 01.09.2020)] declaring the detention order illegal and directing Dr. Khan’s immediate release. 

Unlike the last time that a judicial authority directed his release on 10.02.2020, following which Dr. Khan was not released but instead led to the impugned detention order being passed, this time Dr. Khan has indeed stepped out of prison and as of now has not been arrested in any other proceedings.

Background to the Preventive Detention

Dr. Khan’s prevention detention under the NSA is only the most recent episode of the state machinery training its attention on him and depriving him of his personal liberty, only for a judicial authority to direct his release. 

According to the state, what prompted the order on 13.02.2020 was a public speech given by Dr. Khan in Aligarh to a group of students on 12.12.2019, an event more than two months old. It was stated that the speech incited feelings of communal disharmony and also lent itself to violent protests by groups of students on 13th and 15th December in Aligarh District. The proposal for preventive detention, made on the same date as the order, stated that “Since the fierce and communal speech given by him has had an adverse and unfavourable impact on the public order of the District, therefore it is very important to keep this person detained in jail to maintain the public order. (emphasis mine)”

Take a close look at the last line above — preventive detention was necessary to keep Dr. Khan in jail. Why was he in jail, you ask? Because following the speech of 12.12.2019, a case was registered at P.S. Civil Lines, Aligarh, in the early hours of 13.12.2019 alleging inter alia that the speech incites communal disharmony. Dr. Khan was not immediately arrested in this case, but was ultimately taken into custody from Mumbai on 29.01.2020. He filed for bail, a request which was naturally opposed by the state. Despite the opposition, however, bail was granted on 10.02.2020. Two observations in the bail order are important: first, the Court rebuffed the state claim about the accused repeating the offence by stating that this would be grounds to challenge his bail, and; second, the court placed a bail condition upon Dr. Khan to “ not repeat the crime in the future”.

What happened next is in keeping with the worst traditions of how governments run in our republic, witnessed from the days of A.K. Gopalan itself (no, not his Supreme Court case). The bail order was passed but not given effect to by the executive. Two days later, on 13.02.2020, the trial court passed another order directing jail authorities to release Dr. Khan and directed its delivery by Special Messenger. However, the state claimed this was only received at 8:20 PM in the evening, by which time the preventive detention order had been proposed by the Officer in Charge of PS Civil Lines, sponsored by the Deputy Inspector General of Police, and authorised by the District Magistrate, Aligarh.

Therefore, it would be a mistake to think that Dr. Khan’s preventive detention was specifically required because of the incident of December, 2019. Rather, the need was only perceived by the U.P. Government once a competent court had applied its mind to the allegations against Dr. Khan in the regular course of law, and found that there was no reason to prolong his pre-trial custody any further. 

The Allahabad High Court Verdict

Before proceeding to the order that came to be passed in the habeas corpus petition, it must be mentioned that it took close to six months for a decision to be made in the matter. Even if we exclude the time the petition was in the Supreme Court, it is still an inordinate delay for what is arguably the most crucial kind of case before courts — one directly concerning the liberty of a citizen. 

Having said that, the short judgment of 42 pages does not waste too much time in getting down to the matter. The petition challenged the order of 13.02.2020 on three broad prongs: (i) there was no material for ordering preventive detention and it was intended to subvert the judicial process; (ii) the detenue was not supplied with all material thus denied a right to file an effective representation against his detention, and; (iii) the concerned government had unduly delayed the consideration of his representation against detention. I will only focus on (i) and (ii), as the judgment is restricted to a consideration of only these grounds. On both these legal issues, the Allahabad High Court has made some important observations.

Supplying Material

Let’s look at (ii) first because this is a small point. The High Court noted that while Dr. Khan had been given a CD with the speech ascribed to him, he was not given any means to play this disc. Neither was he supplied with any transcript of this speech, which was the primary basis for his preventive detention. This was unconscionable, and the Court rightly held it so, finding that this conduct on part of the state government deprived the detenue of his constitutional right to make an effective representation against his detention. 

Preventive Detention and Subjective Satisfaction

The Allahabad High Court was asked to consider the contents of the speech given by Dr. Khan in December 2019 to decide whether a reasonable person could apprehend any disturbance to public order based on his exhortations. The Court’s approach in this regard is important and requires a brief excursus to explain the legal position on how challenges to preventive detention orders are to be treated by the judiciary.

The law on preventive detention is an executive-driven process: it is an extraordinary power that executive officials in India have to make sure that imminent threats to public disorder etc. can be addressed swiftly without going through the rigour of the regular criminal process. The primacy given to the executive requires that in any subsequent challenge to a detention order, judges cannot substitute their mind for the subjective satisfaction of the executive official who made the decision in the heat of the moment. The judge cannot place herself in the shoes of the police officer. 

At the same time, however, this doctrine of respecting the subjective satisfaction of executive officials is not a license for abdicating the judicial function entirely when considering a challenge to preventive detention. Courts must still apprise themselves of the materials presented before the detaining authority to decide if the decision to authorise preventive detention was arbitrary and unreasonable. There is no running away from the fact that the lines being drawn here are fuzzy, and while it moves some courts to be excessively deferential to the executive, it equally allows other courts to keenly consider the facts without overstepping the limits of the judicial function or abdicating it entirely. 

In Nuzhat Perween, the Allahabad High Court clearly took the latter approach: 

“We are in absolute agreement with learned Additional Advocate General that it is not open for the courts to substitute their opinion by interfering with “subjective satisfaction of the detaining authority”. However, it does not mean that the court cannot look into the material on which detention is based. The expression “subjective satisfaction” means the satisfaction of a reasonable man that can be arrived at on the basis of some material which satisfies a rational man. It does not refer to whim or caprice of the authority concerned. While assessing “subjective satisfaction of the detaining authority” the Court examining a petition seeking a writ of habeas corpus has to look into the record to examine whether the subjective satisfaction is acceptable to a reasonable wisdom and that satisfies rationality of normal thinking and analyzing process. … In view of above, we have looked into the speech delivered by the detenue. The closure of examining record as suggested would be nothing but a licence to allow the executives to act at their whims or caprice. This would be against the fundamentals of our constitutional values and provisions. (Emphasis Mine)”

In line with this approach, the High Court looked at materials forming the basis for the detention order in detail. The judgment quotes the entirety of Dr. Khan’s 23 minute-long speech made on December 12, to demonstrate how the police requests for preventive detention in this case had, in fact, not presented the authority with the complete picture. Instead, the police had patched up different parts of Dr. Khan's speech to present a different picture altogether from what appeared to be the speaker’s intention. It held, therefore, that based on this material it was impossible to conclude that Dr. Khan’s activities were such as to prejudice the maintenance of public order. 

Punitive Preventive Detention

The peculiar facts leading up to the detention order of 13.02.2020 have been extracted above, and it was argued that this demonstrates that the two months’ delay in passing the order, and its expeditious authorisation after Dr. Khan’s bail, all went to show that the preventive detention order was actuated by malice and not based on any genuine grounds. 

This is a more tedious issue than what might appear at first blush. It is because the Supreme Court has held, on countless occasions, that it is not illegal to pass a preventive detention order in cases where the person is already in custody and about to be released on bail. Most recently, this was confirmed by the Court in Dimple Happy Dhakad [AIR 2019 SC 3428] (Discussed on this Blog as well). Technically then, preventing Dr. Khan’s release on bail was a legally valid ground for the U.P. Government to take. 

This is really the twilight zone when it comes to preventive detention, where the preventive setup inextricably merges with the regular criminal process. The only justifiable premise for passing a preventive detention order in respect of a person who is about to be released on bail is if the authority can demonstrate that there is a continuing threat which did not dissipate once the regular criminal process has taken charge of the matter. This is not unimaginable — organised crime has many stories of rackets being run from prison. But it must be a very hard sell for the executive and it cannot be a means to pile-on incarceration upon persons deemed undesirable by the state. Not only would such delayed preventive detention orders turn the concept on its head — where is the prevention if the person was already in jail for months after the incident! — but it would also directly subvert the determination made by a competent court that there was no need for a person’s continued incarceration. At a macro-level, repeat occurrences of this phenomenon place an undeniable strain upon the relationship between the executive and judiciary, and give rise to an unconstitutional chimera of punitive preventive detention that hollows out the right to personal liberty from within. 

This is why courts must arguably be more vigilant while entertaining challenges to preventive detention orders in such cases where bail order is passed and, in some way, circumvented — as the Supreme Court has also emphasised on some occasions in the past. This is exactly the kind of approach on display in Nuzhat Perween, where the Allahabad High Court noted that:

“The exact nature of the contents of the lecture delivered by the detenue on 12.12.2019 at the Bab-e-Syed Gate of the AMU (as claimed by the state authorities), even if accepted to be correct, it cannot be overlooked that, that material could not be relevant for the purpose of satisfaction being drawn two months thereafter, inasmuch during that period of two months, undisputedly, the detenue neither visited the city of Aligarh nor he made any further or other speech or lecture connected thereto nor there is any material shown to us that the detenue was about to commit any act in furtherance thereto or was going to deliver any other speech or lecture connected thereto as may have prejudiced the public order.”

There was no fresh alleged illegal activity between December and February which prompted the order of 13.02.2020, even though Dr. Khan had been at liberty throughout that time. There was not even a proposal to pass an order for his preventive detention in that period. The first time when the idea came to the government was after the bail order was passed. For the Court, all this pointed to a conclusion that the gap of two months’ snapped whatever link existed between the allegedly offending conduct of Dr. Khan with a need to require his preventive detention. 

Our Slow-Moving Wheels of Justice 

The story of Dr. Khan and the manner in which the preventive detention machinery was clearly misused by the state government to keep a dissident behind bars is a tale as old as time itself. Small wonder why the writ of habeas corpus has such a celebrated position in societies. Indian courts have not had the most shining of records in terms of processing habeas petitions over the past few years and the delay that it took for Dr. Khan’s petition to be heard speaks to this serious systemic problem. But, ultimately, a court did apply its mind, and restore a person's liberty. 

The episode reminds me of a scene from the movie Shahid, where the young, imprisoned, Shahid Azmi is told by War Saab (played by KK Menon) that the wheels of justice turn slowly in India, but they do eventually turn.

Well, eventually, I guess they do.

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.