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Preventive detention: Holding back the rule of law

Supreme Court must give full effect to the 44th amendment to the Constitution

It has been more than 43 years since the 44th constitutional amendment regulating preventive detention was passed by both Houses of the Parliament and signed by the President, but it is yet to be given effect.

THE Supreme Court’s recent comments on the need to check the abuse of the State’s power of preventive detention are welcome. However, its periodic wringing of its hands is vexing. The remedy lies with it, but it has so far not grabbed the bull of executive caprice by its horns.

The use and abuse of long-term preventive detention in India continues to blight the human rights record of a country that claims to be an open constitutional democracy. Explicitly authorised by the Constitution and exempted from other constitutional protections such as the right to counsel, the right to be produced before a magistrate within 24 hours of being taken into custody, and the presumption of innocence, various pieces of legislation continue to be enacted and abused by the Union and state governments to preventively detain individuals for years on end without even charging them with a crime.

Also read: The Dangers of UAPA Were Sown in Earlier Preventive Detention Laws in India

After the excesses of the Emergency dramatically highlighted the ways in which the government could use preventive detention and other extraordinary executive powers to quash political dissent and the legitimate exercise of constitutional rights, the Janata Party government came to power with promises to curb such executive abuses. In 1978, the government adopted the 44th amendment to the Constitution, which included, amongst other provisions, significant limitations on the constitutional authorisation of preventive detention.

Although most of the 44th amendment was brought into force with effect from June 20, 1979 or August 1, 1979, over 43 years later, the preventive detention components of the amendment are yet to be given effect despite the entire amendment having been passed by both Houses of the Parliament and signed by the President.

The Amendment

The 44th constitutional amendment was passed in the aftermath of perhaps the bleakest era for civil liberties in India. The Janata Party government, brought to power amidst large public dissatisfaction with the previous government’s abuse of power during the Emergency, amended the Constitution to rein in the government’s authority to exercise extraordinary powers, repealed some of the constitutional changes made during the Emergency, and added additional safeguards to the Constitution.

As per Section 3 of the amendment, the maximum period of detention is reduced from three months to two months, and appointments to ‘advisory boards’ constituted under Article 22 of the Constitution become subject to the recommendations of the Chief Justices of high courts.

Section 3 of the 44th Amendment Act limits the authority of the government to impose preventive detention in several respects. The maximum period of detention is reduced from three months to two months, and appointments to ‘advisory boards’ constituted under Article 22 of the Constitution become subject to the recommendations of the Chief Justices of high courts.

In addition, all ‘advisory board’ members are required to be sitting or retired high court judges, and the ability of the Parliament to permit the government to dispense with the review of the ‘advisory board’ of detention orders in particular cases is eliminated. Although not enough to significantly stem the potential for abuse of preventive detention, this provision was intended by its drafters to curb that menace to some extent.

Also read: ‘Preventive detention no longer viewed as an exceptional measure’

In the parliamentary debates leading to the passage of the amendment, there were many references to the election promises made by the Janata Party to rein in the government’s power to authorise preventive detention, and to the attempts made to fulfil it. Both Houses discussed the excesses of the Emergency and “our bitter experience in the last thirty-one years, which showed that if there is the slightest loophole in the Constitution, then it [would] be misused.”

The debates make clear that India’s history until that time had demonstrated the abuse of the preventive detention provisions, which is why the drafters of the 44th amendment aimed to close any loopholes that would allow for future abuse of the same.

Moreover, the debates demonstrate that Section 3 of the amendment came about as a compromise solution with those who wished to eliminate preventive detention altogether from the Constitution— if preventive detention was not going to be abolished in full, then safeguards had to be introduced and the time in detention had to be as short as possible. In reaching this compromise, the debates consisted of arguments weighing the pros and cons of preventive detention in India.

Preventive detention was described by some as being necessary in extreme situations to combat crimes such as smuggling, and to deal with special circumstances such as instability. Many others contended that proper enforcement of regular criminal and security laws, rather than preventive detention laws, could and should target these objectives.

As such, these critics agreed that the only reason the government would retain preventive detention would be to use it against legitimate democratic movements and political opponents, as was done since independence and, most strikingly, during the Emergency.

Despite disagreement over the necessity of preventive detention, there was agreement that if preventive detention was necessary, then, at a minimum, safeguards must be strengthened to prevent misuse. Still, some critics believed that no amount of safeguards could stop the executive from abusing preventive detention so long as the practice was authorised, and strongly criticised the limited revisions proposed in the amendment.

Despite disagreement over the necessity of preventive detention, there was agreement that if preventive detention was necessary, then, at a minimum, safeguards must be strengthened to prevent misuse.

Parliamentarians frequently mentioned other countries and their approaches to preventive detention. For example, lawyer and politician Ram Jethmalani, then a member of the Lok Sabha, pointed out that Englishmen accepted preventive detention, but only in times of warEven so they accepted it not with a feeling of glee, not with a feeling of joy, but with a feeling of regret.”

Others invoked fundamental principles of justice and international human rights standards to either justify or condemn preventive detention. For example, then Lok Sabha member Jagannath Sharma argued that preventive detention was necessary to meet the needs of the dignity of the individual, the safety and welfare of the people, the regulation of trade, and to prevent criminal offences.

On the other hand, critics argued that preventive detention was viewed internationally as inconsistent with democracy and the rule of law. Political scientist, educationist and then Lok Sabha member Prof. P. G. Mavalankar said that “preventive detention … both in principle and practice, is a negation of freedom, rights and the civil liberties.”

Many spoke of their personal experiences of preventive detention during the Emergency and the fact that they had sworn that preventive detention would no longer be used in the country.

Also read: Preventive Detention Laws in India: A tool for executive tyranny?

Preventive detention since the Amendment

Despite the vehemence with which many Parliamentarians argued against preventive detention in the wake of the Emergency, the general consensus about the need for additional safeguards, and the ultimate passage of the amendment by both Houses of Parliament and its signing by the President, neither the Janata Party government, which sponsored the amendment, nor subsequent governments, have brought Section 3 into force. Subsequently, preventive detention provisions have continued to be rampantly abused.

The failure to give effect to the amendment was challenged at the Supreme Court in A. K. Roy versus Union of India (1981). In this case, a five-judge Constitution Bench of the court said that the delay was unexplained and unreasonable. It also noted that there appeared to be no reason why the 44th amendment could not have been enacted, especially as 43 of its 44 Sections had been brought into force, with the exception only of Section 3. The three-judge majority on the Bench observed that no reasons were given for the omission, and it could not find any acceptable reason.

Still, while the court disagreed with successive governments’ failure to enact the 44th amendment, it held that the legislation provided that the duty to bring the provisions of the amendment into force was left to the discretion of the Union government. The court stated that preventive detention and enacting the amendment were matters for the legislature, not the judiciary, to deal with, and thus did not mandate the enforcement of Section 3.

With the failure to bring Section 3 into force, preventive detention has continued to be abused through old and new Central and state legislation. For example, despite the Janata Party government’s election promise to repeal the Maintenance of Internal Security Act, 1971, once in power, the government maintained preventive detention as necessary to combat economic offences, “anti-social elements“, and threats to national security.

There appears to be no reason why the 44th amendment could not have been enacted, especially as 43 of its 44 Sections had been brought into force, with only the exception of Section 3.

Subsequently, various pieces of national legislation, including the National Security Act, 1980, the Terrorist and Disruptive Activities (Prevention) Act, 1985 and its successor, the Prevention of Terrorism Act, 2002, and the Unlawful Activities (Prevention) Amendment Act, 2008 all included long-term preventive detention provisions, as do numerous state laws, such as the Jammu and Kashmir Public Safety Act, 1978, the Assam Preventive Detention Act, 1980, and the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-Grabbers and Video Pirates Act, 1982.

Also read: The ‘lawless law’: A Constitutional consideration of preventive detention in Jammu and Kashmir

Both the Union and state governments have abused such legislation, with even the judiciary being unable to effectively limit such abuses as the detention of individuals without cause, the failure to follow even the minimal protections offered by Article 22 of the Constitution, the circumvention or ignoring of judicial orders of release, the re-issuing of new detention orders upon release, and the targeting of political opponents.

Why the Supreme Court must intervene

The failure to adopt the 44th amendment is a stain on India’s human rights record, especially as executive abuses of preventive detention have continued unabated despite the supposed public and political outcry after the Emergency.

It is high time the provisions of the constitutional amendment that were passed well over 40 years ago are given effect by an order of the Supreme Court to an insensitive, undemocratic and lethargic executive. The ultimate aim must be to remove preventive detention from the statute books altogether.