PREVENTIVE DETENTION Erosion of Constitutional Safeguards

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it was the case of bonde d labour. Ano th er

interesting thing which came out from the

conversation was the landlords' feeling

that every activ ity of a harij an whi ch was

likely to questi on lan dlor d supremacy was

seen as being the result of 'inspiration' by

the 'radicals'. Also the welfare prgrammes

of the RES were dubbed as 'radical acti

vities'.

But the harijans showed a grim determination to face the socio-economic

boycott with united action. Talking with

them revealed the precarious nature of

their existence. On the day of the attack

most of them had gone without food for

the whole day. On February 20 when the

committee met some of them, hunger was

writ large on their faces. Also there was

no sign of any relief to these families from

the government. The Moogavada episode

exposes the chasm between the precept

and practice of the government with

regard to the weaker sections. Increasingly

the sources of livelihood of the weaker

sections is a much professed objective of

the government, in the state as well as at

the Centre. One of the measures accepted

as a means to achieve the objective is the

distribution of surplus land, public lands

or income-yielding assets to weaker sec

tions. But the Moogavada incident shows

that appropriate machinery for impelmen-

ting the measures has not been evolved.

The revenue admini stra tio n is grossly in

adequate for handling the welfare

schemes. Sometimes it may even be an

obstacle. The government has failed todistribute even public assets like tamarind

trees, let alone carry out other welfare

measures. Secondly, protection of weaker

sections from exploitation and atrocities

continues to be confined to the level of

rhetoric The very fact that the landlords

could take the law into their hands shows

who actually rules the countryside. Once

an asset is passed on to a beneficiary it

is the obligation of the government to see

that the beneficiary enjoys its fruits.

Equality before law, without the will to

enforce it, is a myth. Thirdly, the absenceof adequate information about public

lands and trees like tamarind on public

lands shows the gross neglect of public

property management. Proper accounting

of these resources and access to the public

to such accounts have great potential for

improving the condition of living of the

people. Finally, there appears to be an

increasing tendency towards blaming

everything on the so-called 'radicals'.

When a government gives 'patta' to a

weaker section household it is done with

lot of fan-fare and publicity and everyone

in the government claims credit for it . Bu t

no one in the government takes responsi

bility to see that the 'pattas' are in the

actual possession of the allottees.

PostScript: Despite the fact that the

Tahsildar swore that he would get the

harvest done in favour of the beneficiaries

by February 21, no action was taken. In

stead advocate Chari and two office

bearers of the RES were arrested on false

charges and remanded to judicial custody

from where they were released onFebruary 23 on conditi on that they would

PREVENTIVE DETENTION

BY the National Security (Second

Amendment) Act, 1984, the grounds of

detention were made severable and each

ground was made an order of detention

by a legal fiction. Moving this Amend

ment Bill to the National Security Act,

Narasimha Rao stated that the aim of the

amendment was only to resolve the con

flict between the multi pli cit y of judgments

on the Act wi th some holdi ng that invali

dation of one ground was sufficient to

make the detentio n order itself inva lid and

the other holding a contrary view. He also

relied on a judgment of the Supreme

Court delivered in 1983 wherein it was

held that the invalidation of one out of

several grounds need not make the deten

tion order invalid. When the opposition

made references to the use of MISA during the Emergency, Narasimha Rao said,

"we are now talking of a different situa

tion and a different concept and let us not

go into the past". He even asserted that

the Preventive Detention Law he was

defending was not draconian and that it

did not add one iota of power.

Every one of these assertions is a lie.

Narasimha Rao could confidently assert

his party's right to introduce the amend-

ment because he had behind him the solid

support of yes-men who are there not to

deliberate but to support every govern

mental measure. The opposition in Parlia

ment is too' weak to even formulate a

strategy to focus the attention of the

public.on the real issues involved and

expose the democratic swindle. Organised

and inte lligent protest outside Parliament

is practically non-existent.

The result was that Indira Uanani's

government was able to brazenly bri ng in

a series of repressive laws which can be

effectively used against political dissent

without the necessity of invoking the provisions relating to the declaration of

Emergency. By the first amendment the

max im um peri od of detention was extend-

not leave Madanapall e to wn . On the 22nd,

a week after the incident, the Director of

Scheduled Castes and Scheduled Tribes,

Southern Region, visited the village A fter

that the Tahsildar proceeded to the village

wi th a police party to help the pattadars.

But because of the terror created by the

landlords and the inaction of the

authorities, only 36 families took courage

to harvest the produce on roughly 36 trees.The rest of the harijans had given up.

ed to two years. By the second amendment

the government saw to it that none of the

persons arrested are released by courts.

The scope for judicial review which is

already minimal has been reduced to no

thing. The latest proposal of the Punjab

government to do away with the advisory

board procedure is the logical culmin ation

of the previous amendments.

Article 22 of the Constitution is in two

parts. Clauses 1 and 2 of the Article deal

with arrests and production before the

Magistrate within 24 hours. The arrested

persons should be informed of the

grounds for their arrest and they have also,

while in custody, the right to consult the

lawyer of their choice. The first two

clauses are systematically violated by thelaw enfor cing agency all over the country.

Protest, if any, proceeds invariably from

civil liberties organisations. We are at

present not concerned with these clauses.

These two clauses are not applicable to

any person who has been detained under

any preventive detention law. Sub-clauses

4 to 7 deal w it h preventive detention laws.

Recognising that preventive detention is

a complete negation of all freedoms, more

particularly freedom of movement and

personal liberty, these clauses as they

stand now impose on Parliament certainlimit atio ns in the matter of legislation on

preventive detention. No law can provide

for preventive detention for a period of

more than two months wit hou t the inter

vention of the Advisory Board. The Ad

visory B oard is to be constitut ed in accor

dance with the recommendations of the

Chief Justice of the High Court. This is

to ensure that the case of the detenu

should be considered by an independent

body. By clause 7, Parliament alone is

given the power to prescribe the maximum

period of detention. By the first amendment, taking advantage of the Punjab

situation, the maximum period has been

extended from one year to two years.

Erosion of Constitutional Safeguards

K G Kannabiran

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E C O N O M I C A N D P O L I T I C A L W E E K L Y May 4, 1985

GROUNDS OF DETENTION

Apart from these, the safeguards pro

vided by clause 5 are very im po rt an t, for

this clause gives the person detained a

right to approach the court and contest

that his deten tion is inva lid . As preventive

detenti on is a pre-emptive step to forestall

a particular type of activity defined in theAct, the decision-making process wil l have

to be a subjective assessment of the de

tain ing aut hor ity . Thi s subjective exercise

of power is by its very nature arbitrary.

The safeguards provided are to reduce the

arbitrariness. The power to act and its

subsequent validity are dependent on

scrupulous compliance with the safe

guards provided . The detain ing author ity

should serve the grounds of detention on

the person detained. These grounds do

not mean mere factual inferences. They

mean and include factual material which

lead to the factual inferences. They must

be self-sufficient and self-explanatory. If

any documents and other material are

referred to in the grounds, copies of such

documents and -material should be sup

plied to the detenu along with the

grounds. The grounds and the material

relied on in the grounds should be made

available in the language known to the

detenu. As the power to detain is entrusted

to the subjective satisfaction of the detain

ing authority the obligation implie d is that

he should while considering the material

for arrest take into account the pertinent

and the proxima te eschewing the irrelevant

and the remote with reference to every one

of the grounds.

The grounds should not be vague.

These safeguards are not provided in the

Act. They are read into and are part of

clause 5 of Article 22. These flow out of

the right of the detenu to obtai n info rma

tion regarding the grounds of his arrrest

and the consequential right to make a

representation questioning his detention.

This right is independent of the duration

of the period of detention and the provi

sions regarding the Advisory Board. Infraction of the safeguards read int o Ar t i

cle 22(5) will make the detention invalid

and the detenu has the right to approach

the court demanding his release fort hwi th.

The Supreme Court always regarded pre

ventive detention as a serious invasion of

personal liber ty, and vi olat ion of the

meagre safeguards provided by the Con

stitution against improper exercise of

power was annulled without any hesita

tion. The principle evolved was nothing

new and it was part of Anglo-Saxon

jurisprudence. Th e inn ov at io n was to read

them into Article 22(5) with a view topreventing the State from bringing forth

legislation whic h may shut out the courts

from reviewing orders of detention.

ATTEMPTS TO PREVENT SCRUTINY

The Indian state has been making at

tempts to prevent scrutiny of detention

orders by courts fro m the very incept ion.

The Preventive Detention Act 1950 con

tained provis ions which prohibi ted

disclosure of the grounds of detentio n or

any representation made against such

detention before any court. The injunc

tion was directed against the court from

receiving such information from the

detenu. No r can it call for the prod ucti on

of records containing such information

from any public officer, including the

proceedings of the Advisory Board. Any

such disclosure was made a punishable

offence. This prov isio n was struck down

by the Supreme Court unanimously in

A K Gopalan's case.

Atmaram Shridhar Vaidya, an active

trade unionist of A I T U C was arrested onAp ri l 21, 1950. On Ap r i l 29, 1950 he was

served with a detention order. Four

months after his detention order and one

month after he moved the court for hi.

release, the government served on him

supplemental grounds. In this case, the

Supreme Court held by a majority that the

person detained is entitled, in addi tio n to

having the detention order communicated

to him, to a further right to have parti

culars(as full an d adequate as the cir-

cumstances permit' furnished to him so as

to enable him to effectively make a

representation against the order of detenti on . It was also held that the second com

munication, if there be any, after the in

itial order of detention and service of

grounds is also justiciable. These rights

were declared to be part of Art ic le 22(5).

Ramkishan Bharadhwaj of the Hindu

Mahasabha questioned his detention

order in 1953. One of the grounds was

vague and it was contended that even if

one ground was vague it would infringe

the safeguards guaranteed by Article 22(5).

The argument of the State was that if a

ground is vague it was always open to the

person detained to ask for particulars

before making his representation.

The question however is not whether the

petitioner will in, fact be prejudicially af-

fected in the matter of securing his release

by his representation, but whether his con

stitutional safeguard has been infringed.

Preventive detention is a serious invasion of

personal liberty and such meagre safeguards

as the Const itut ion has provided against the

improper exercise of the power must be

jealously watched and enforced by the court.

In this case the petitioner has the right under

Art 22(5) as interpreted by this court by amajority to be furnished with particulars of

his detention sufficient to enable him to

make representation which on being consi

dered may give relief to him. We are of the

opinion that this constitutional requirement

must be satisfied with respect -to each of

the grounds communicated to the persons

detained subject of course to a claim of

privilege under clause (6) of Article 22.

After this decision the court has not resil

ed from this position.

NEW STRATEGY

The government evolved a new strategy,

ft realised that a single Preventive Deten

tion Att for all classes and categories of

people was the mistake Nehru had com

mitted. Why should one Jump commu

nists, socialists, members of communal

organisations, lumpens, black-marketeers,

smugglers, etc, together? Separate laws for

each category or class would divide the

protest and that way there would be less

scope for challenge in courts. A draconianpiece of legislation against lumpen

elements or a smuggler is not likely to

evoke protest. We may not even challenge

such a measure because we tend to take

a moralistic stand and justify the draco

nian measure. Courts may also take a

moral is t ic v iew and uphold such

measures. If it stands the test of public

opinion, and if courts uphold such a

measure a prin cip le is lai d down . It is then

time to extend the principle to other sen

sitive spheres of activ ity wh ic h need to be

suppressed, The arbitrary provision gets

legitimised and dons the mantle of legalityand survives from then on as an abstract

ju ri st ic pr inci pl e.

The Conservation of Foreign Exchange

and Prevention of Smuggling Activities

Act was passed in 1974. Immediately after

Emergency was proclaimed Section 5-A

was introduced. The provision in terms

seeks to nullify the safeguards contained

in Article 22(5) as laid down by the

Supreme Court. If a person has been de

tained in pursuance to an order of deten

tion on two or more grounds such order

shall be deemed to have been made on

each of such grounds and hence suchdetention shall not be invalid merely

because one or some grounds is or axe

vague, irrelevant, remote or non-existent.

The va lidi ty of this provisi on has never

been challenged. The provision seeks to

sustain the valid ity of the detentio n order

on a legislative fiction . Ho w can a fictio n

take the place of 'satisfaction' of the de

taining authority at the time of passing

an order of detention? The provision

dispenses with the necessity of application

of mi nd by the detaining autho rity as also

bis satisfaction that the material placed

before him relates to the classes andcategories of activities which are sought

to be prevented by the arrest. Ho w can the

detaining authority be presumed to pass

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May 4, 1985 ECONOMIC AND POLITICAL WEEKLY

several orders of detention when in fact

he has passed only one? Legal sophistry

in and by courts can be totally divorced

from reality as was ably demonstrated by

the majority in A D M Jabalpur's case.

Add to this the tendency to write disser

tations instead of judgments and to make

general observations which are not relevant for the decision of the case. Such

observations are taken note of by the

executive and offered as explanation for

introducing unpopular and undemocratic

measures, as was done by Narasimha Rao

in Parliament.

The classic instance is that of Justice

Varadarajan delivering judg ment for him

self and on behalf of Justice Chinnappa

Reddy. While quashing the order of deten

tion under the National Security Act, in

a case coming from Madhya Pradesh it was

observed:

Now there is no provision in the National

Security Act 1980 similar to Sec 5-A of the

Conservation of Foreign Exchange and

Prevention of Smuggling Activities Act,

1974, which says that where a person has

been detained in pursuance of an order of

detention under sub-section(l) of Section 3

which has been made on two or more

grounds, such order of detention shall be

deemed to have been made separately on

each of such grounds and accordingly,

(a) such order shall not be deemed to be in

valid or inoperative merely because one or

some of the grounds is or are vague, nonexistent, non-relevant, not connected or not

proximately conneeted with such persons or

invalid for any other reason and it is not

therefore possible to hold that the govern

ment or officer making such order would

have been satisfied as provided in sub-section(l)

of Section 3 with reference to the remain

ing ground or grounds and made the order

of detention; and (b) the government or of

ficer making the order of detention shall be

deemed to have made the order of detention

under the said sub-section(l) are being

satisfied as provided in that sub-section with

reference to the remaining ground or grounds(AIR 1984 SC 211).

In short the learned judge said in so many

words that had there been a similar pro

visi on in the Nati on al Security Act, 1980,

we would have upheld the detention order.

A piece of gratuitous advice.

The learned judge when he made this

statement did not verify the long catena

of cases wherein the Supreme Court has

read into Article 22(5) safeguards which

cannot be defeated by such legislative

devices as are contained in COFEPOSA

or the Second Amendment to the NSA.

Way back in 1970 to put down the Nax-alite movement, the Andhra Pradesh

legislature passed the AP Preventive

Detention Act. It contained a provision

similar to the one found in the

COFEPOSA and the Second Amendment

to the National Security Act. It read as

follows:

See 6(a): No detention order shall be invalid

or inoperative merely by reason that one or

more of the grounds on which the order is

made, is or are vague, or irrelevant, when theother ground or grounds does not or do not

suffer from any such infirmity.

Revolutionary writers Charabanda Raju,

Nikhileswar and Jwalamukhi were arrested

under this Act for their writings and

speeches. The validity of this provision

was challenged in the Hig h Cou rt. Justice

Chinnappa Reddy and Justice A D V Reddy

struck down the provision as violative of.

Article 22(5) wnerein they traced the en

tire history of the safeguards read into

Article 22(5) (ILR 1972 AP 1025).

This was the first of the series of the

measures introduced by Indira Gandhi'sgovernment taking advantage of the

Punjab situation.

TELUGU DESAM FOLLOWS SUIT

The Telugu Desam government, not to

be left behind, has passed a Preventive

Detention Act covering commu nal offen

ders. 'Communal offenders' is defined by

reference to the relevant provisions of the

Indian Penal Code. Indictable offences

have been made the basis of preventive

detention orders and courts have been

examining them in the context of public

order. Classification of offences and of

fenders in a penal code is perhaps the ac

cepted method of management of crimes

by the state. But classification of suspects

for purposes of preventive detention and

passing of different sets of laws covering

various categories of suspects is to replace

a just procedure by a wholly arbitrary

oneto give up indictment followed by

trial and to introduce subjective satisfac

ti on as a measure to punish pre-emptively

suspects without proof and with flimsy

procedural safeguards.

The process of classification of suspectsmay not stop here. Already there are four

enactments covering the entire spectrum

of political dissidents and economic of

fenders. Telugu Desam has introduced a

fresh Bill to check bootlegging, land-

grabbing, etc The pattern of legislation

and the fate of accusatory procedure arc

visible for anyone to see. With the Punjab

issue converted into a question of the

integri ty of the natio n, we are trapped in

the threat-to-national-security syndrome.

Security, as the good of the nation, is

incompatible with the permanent inse

curity of the people. The very idea of athreat to security invites repressive

measures and with these follow arbitrary

arrests, illega l confinements and custodial

violence. State does not any longer repre

sent the value system it is intended to

promote and sustain, but works towards

the sytematic destruction of the value

system for which so many people laid

down their lives.

Sometimes it becomes necessary to dig

into the past to understand the extent ofdistortions that have been introduced into

the legal system almost imperceptibly and

always in times of crisis. Many members

of the Constituent Assembly felt that

Article 21 as it was approved "gave to

Parliament a carte blanche to provide for

the arrest of any person under any circum

stances it deemed fit". Therefore the pre

sent Arti cle 22 was introduced to curtail

the power of the executive to make arrests.

When this Article was being debated,

Mahavir Tyagi alone was able to foresee

the distortion that in fact has taken place

when he said that "the adoptio n of Ar t i cle 15-A [present 22] would change the

character of fundamental rights into a

penal code worse than the Defence of

India Rules of the old government. The

business of the Constitution makers was

to guarantee the rights of people and not

to make laws to deprive them of their

rights."

Polar Industries

PO LA R INDUS TRI ES, a dividend pay

ing company engaged in the manufacture

of electric fans, is coming to the marketwith a public issue of 8.10 lakh equity

shares of Rs 10 each to raise a pa rt of the

finance required for expansion of installed

capacity from 1.50 lakh fans to 3,60 lakh

fans per annum. The issue wil l open on

May 7. The project is expected to be com

missioned by August next. The company's

factory is situated at New Okhla In

dustrial Development Area (NO ID A) in

Ghaziabad district of UP. The state

government has granted the company ex

emp tio n from sales tax for six years, which

is of great advantage to the company. It

is promoted by Sajjan Kumar Aggarwalwho has been associated with the electric

fan industry for the last 20 years. With a

well-established product brand name in

the market, the company envisages no dif

ficult y in mark etin g its expanded produc

tion. The demand for electric fan is ex

pected to rise steadily. The company

started manufacturing activities in

December 1982 and turned out good

wor kin g results from the very first year of

operation. Sales turnover increased from

Rs 104 lakh in 1982-83 to Rs 210 lakh in

1983-84 and profit before tax doubled

over the same period. The companydeclared a maiden dividend of 12 per cent

for the year ended September 30,1984, the

first ful l year of operations.

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PREVENTIVE DETENTION Erosion of Constitutional Safeguards