Assessing the Supreme Court’s Security Jurisprudence vis-à-vis NSA
Article 22 of the Constitution of India establishes a wide framework under which preventive detention statutes may be passed. Preventative detention is typically utilized against hostile aliens in times of crisis like war or external aggression. However, India is one of the few nations whose preventative detention laws are constitutionally legitimate even in times of peace. One may guestimate that the requirement of it may be traced back to the tragic tale of betrayals throughout history when India was weakened from within, by people like Jai Chand or the Communists. To strengthen the security, unity, and integrity of India, legislation like the National Security Act, 1980 (for short “NSA”) was enacted. It established preventative detention law in the country, albeit it has received much criticism since then. It is often argued that these preventative detention laws are employed when the evidence available to the detaining authority is inadequate to assure the detainee’s quick conviction through the usual legal procedure. It is also argued that these laws imperil an individual’s personal liberty and have been routinely abused by the government. Many further claims that the NSA gives the government excessive powers. This raises questions like whether preventative detention laws are even necessary in the first place, or how they differ from those in effect in states, or preventive measures in the Code of Criminal Procedure, 1973. This, in turn, raises another question, had the statute been unconstitutional, the Supreme Court would have ruled so earlier. Or is the Supreme Court viewing this statute as a repressive tool? These are critical concerns that must be addressed, which the paper attempts to do. This research paper also aims to assess the Supreme Court’s security jurisprudence and how they view its application. The scope of this paper is confined to NSA only.
I. Introduction
It is often emphasized that crime is an unconscionable wrong against society.[1] It disrupts the fabric of society. It is in societal interest to find out the accused, try, and punish him. In order to do so, his rights need to be curtailed. This is where individual and societal interests come in conflict with each other. The constitutional essence lies in balancing them.[2] The preservation of individual interests is also in the interests of society, thus even if such curtailments are necessary, they must be kept to a minimum in order to protect their individual interest as well as advance societal interests. The fact that accountability and transparency remain present during the process of curtailment contributes to the balancing of interests. As a result, the fundamental values of the constitution—namely, justice, equity, good conscience, reasonableness, and non-arbitrariness, shall prevail in the process of curtailment. These fundamental constitutional principles are omnipresent and form the basis of each and every law. Under no circumstances may it be breached. And that is where the jurisprudential essence of most criminal statutes lies. However, the jurisprudential essence behind preventive detention laws lies in the anticipation of danger, which can be explained very well through the risk theory. But before turning to that, we must try to place this conflict in history.
This conflict between individual interest (civil liberties) and societal interest (national security) has been an age-old argument that was even at the center of the spat between the two titans of jurisprudence, Hobbes and Locke. Thomas Hobbes was persuaded of the need for a strong government because of the crimes and devastation caused by the English Civil War.[3] He believed that this was the only mechanism capable of defending the interests and welfare of the populace.[4] The most influential defence of the State’s unrestricted authority remains to be “Leviathan,” which was written in 1651.[5] In this, he asserts that the will of the people is a source of unending strife unless it is subservient to a superior political power.[6] The ‘Two Treatises of Government’ by Locke, on the other hand, were in conflict with Hobbes’ absolutist theory. He argued that the sovereign must be granted authority in the belief that it will rule in a way that lessens the state of suffering and anguish.[7] In case of its violation by the States, “the trust must unavoidably be surrendered, and authority devolves into the hands of those who granted it, who may put it again where they shall consider best for their safety and security.”[8] This conflict between civil liberties and national security has also been acknowledged by the majority of constitutional democracies across the world, yet there are countless occasions when one has prevailed over the other. This constant conflict between the two can be understood more deeply through the risk theory as well, which shares a similar nature with that of preventive detention laws.
Deborah Lupton has identified three approaches to preventive detention laws i.e., ‘cultural’, ‘governmentality’, and ‘risk society’.[9] These are three ways to define what is perceived as ‘risk.’[10] According to the ‘cultural’ approach, people in a community have common beliefs and
ideologies.[11] Communities having common cultural beliefs and principles perceive risk in a similar fashion.[12] Consequently, whatever threatens the belief system of the community is perceived as a risk.[13] Under this theory, certain marginalized groups can end up being seen as a threat to the community.[14] For example, Hindus in Pakistan are massively persecuted primarily because they are seen as a threat to the culture and ideologies of Muslims in the country. Forced conversions, rapes, and marriages of Hindu women are recurrent occurrences. Not just Hindus but Christians and other minority religions are also found to be persecuted in the Country. Certain reports suggest that over one thousand girls are annually abducted and forcefully converted to Islam.[15] Situations such as these, show one way of perceiving risk as defined by the cultural approach. As is clear, according to the cultural approach the idea of risk can differ with differing backgrounds, customs, and traditions. However, such a cultural approach to risk may not be justified. What may be culturally appropriate may not be universally accepted. For example, detaining Uighur Muslims by the Chinese government in camps under the pretext of re-educating them so as to prevent terrorist activities in the region reveals how the subjectivity of cultural risk can be employed to justify unethical and illegal detention by the government.[16] It showcases how government can jeopardize the human rights of communities that have different cultural ideologies. Therefore, such a cultural approach to risk might lead to arbitrariness. Basing preventive detention laws on the premises of cultural theory can be proved to be fatal and can also lead to police brutality.
Michael Foucault introduced the concept of governmentality.[17] The word describes the study of government and its mentality. The premise of the ‘governmentality’ approach to risk is drawn from Foucault’s idea of the government.[18] According to him, society entails self-governing capacities.[19] Due to this, the government has evolved over time and has moved from basic command theory to engaging more complex mechanisms to govern the self-governing entities.[20] The governmentality approach aims to mold the conduct of things that they seek to govern.[21] In this approach, the risk is perceived as a tool of governance. Risk is a statistical and
probabilistic approach in which a large number of occurrences are classified into a distribution, which is then used to make probabilistic predictions.[22] Using the technology, the government then identifies recurring characteristics that poses threat to the smooth functioning of government and society.[23] For example, under the Public Safety Act, 1978 (for short “PSA”), many people in the union territory of Jammu and Kashmir are detained if they are involved in any kind of protest.[24] The common ground for evaluation of risk under this act is participation in the protest. There must be a history of terrorists trying to bring unrest via protests and hence a general idea of finding high-risk personalities through this medium is preferred by government agencies. The lacuna in this theory is that it revolves around the power of the government. Government may also perceive risk as a voice of dissent. It might want to suppress everything which may come in its way of attaining power. For example, after the coup in Myanmar, the military regime detained around 3800 civilians. The detention was solely based on the grounds of voices of dissent against the illegal formation of a coup or elected government.[25] This can turn a democracy into tyranny. Therefore, this theory also does not completely justify the use of preventive detention laws against the perceived risks by the government.
Ulrich Beck explained the transition from an industrial society to a society concerned with problems of scientific and technological advancements by coining the term ‘risk society’.[26] He
characterized risks in society as a global phenomenon that is unpredictable in nature.[27] He was of the opinion that fear determines the perception of life.[28] It becomes essential to guard society against the threats that imbibes fear.[29] Consequently, security is supplanting ‘freedom and equality’ from the highest position on the scale of values.[30] Resulting in the implementation of stringent laws ultimately leading to ‘totalitarianism of defence against threats.’[31] His idea of risk society is not concerned with obtaining goods rather it revolves around the prevention of the worst.[32] These three sociological approaches to risk lay down the basis of society’s approach toward preventive detention laws. It highlights the government’s philosophy behind the adoption of detention laws.
Apart from the risk theory, traces of philosophical reasons behind preventive detention laws can also be found in the theory of ‘Incapacitation.’ This theory of punishment follows the utilitarian perspective to reduce crime in society by imprisoning the accused to prevent any future crimes from happening in society. Following the utilitarian perspective by reducing crime, it aims to enhance the overall happiness quotient of society. Originating in Britain between the 18th and 19th centuries, the theory seeks to incapacitate offenders in prisons to prevent future crimes. Preventive Detention laws follow the same analogy of incapacitating a person to reduce the chances of future risks. Although incapacitation theory of punishment becomes operational after the crime has been committed and preventive detention laws are pre-crime operations. However, both theories work on similar underlying principles, i.e., prevention of future risks.
Additionally, in the post-modern era, governments have been justifying the use of detention laws by basing their reasoning on the premises of the ‘precautionary principle’. Although the precautionary principle has its origin in environmental law. Still, an analogy can be drawn between the precautionary principle and the detention laws. The precautionary principle mandates the early use of forces to prevent any future catastrophe, which might be irreversible in nature. Accordingly, unpredictable and uncertain future harms can be avoided if action is taken before the disaster. The principle rejects the idea of the evidence-based approach to public policy. Drawing on the analogy of the precautionary principle, preventive detention laws can be best summarized in the words of the former Prime Minister of Australia, John Howard “it’s better to be safe than sorry.”[33]
Thus, a primary reflection of the philosophy behind preventive detention laws can be seen in risk theories. These define what constitutes as ‘dangerousness’ or ‘danger’, thus highlighting the importance of trying to curb that danger for a just, fair, and prosperous society. The ‘risk of future harm’ arises either from the lens of ‘cultural’ theory, ‘governmentality’ theory, or ‘risk society’ theory. These form the basis of justification for preventive detention laws. Other justifications can also be drawn from the overlap with the ideology of incapacitation which also tries to reduce future harm in society that a guilty proven person could bring. And lastly, detention laws are reasoned with the ‘precautionary principle’. Both showcase the similar ideology of ‘prevention is better than cure’. How so ever different these might seem; their goal is the same – to curb a large perceived risk to society before it takes shape and causes irreversible harm. It is an important objective for any society to function properly.
However, these theories nowhere address the problem of attaining a balance between the security of the State (societal interest) and the constitutional freedoms of society (individual interest). It is of utmost importance to define the ‘risk’ and ‘dangerousness’ globally. These words are so wide that they can be interpreted in any manner by one who is in power and uses the preventive detention laws to their own advantage.
Over the past several decades, there have been significant paradigm shifts in India’s view on this subject. The Constitution of India makes a commitment to protect societal interests through a number of inscribed articles. The framers of the Constitution understood that freedom cannot live in a vacuum and that it may result in a situation of societal instability if it is not restrained.[34] As a result, they included some limitations on these freedoms so that checks and balances may be implemented in the event of disorder or threat to the unity and integrity of India.[35] Geographical factors as well as the bloodbath our Country has seen throughout its history have led legislators to conclude that the limitations in the Constitution are insufficient and that protecting the inside of the Country is more crucial than maintaining its borders. Special laws pertaining to national security and preventive detention were thus developed as a result of this. The National Security Act, 1980 (for short “NSA”) is one manifestation of such laws.
This research paper has primarily been divided into two parts, which are covered mainly under chapters 2 and 3. The second chapter traces the chronology of this major security legislation, i.e., NSA since the colonial era. It also discusses the international and constitutional underpinnings of this legislation and the need for bringing such law in light of historical events. Thereafter, it discusses the constitutionality of this legislation by referring to its provisions as well as other preventive detention laws in place in the States, and lastly, it analyses the executive actions and tries to assess if it has been used as a weapon of repression. The third chapter covers an analysis of rulings by the Supreme Court and discusses how they view orders that are passed under NSA. It has been further divided into three sub-parts. The first sub-part discusses the legality of the NSA in light of the powers of the legislature to pass such legislation. The second sub-part discusses through several cases the approach of the Supreme Court that it usually adopts i.e., respecting executive authority. And finally, in the last sub-part, the jurisprudential essence behind balancing the conflicting interests has been thoroughly discussed through the rulings of the Supreme Court. In this chapter, the limited scope of judicial review in matters of national security is also highlighted.
[1] See definition of “Crime” by Salmond, Sergeant Stephen, Halsbury’s Laws of England; See also Sir William Blackstone, Commentaries on the Laws of England; State of Haryana v. Anand Kindo and Anr., 2022 SCC OnLine SC 1214, etc.
[2] People v. Defore, 242 NY 13, 24: 150 NE 585, 589 (1926); People v. Adams, 176 NY 351: 68 NE 636 (1903); Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424; Joginder Kumar v. State of U.P., (1994) 4 SCC 260, etc.
[3] “Hobbes’s Moral and Political Philosophy”, Stanford Encyclopedia of Philosophy (Feb 12, 2002), available at https://plato.stanford.edu/entries/hobbes-moral/ (last visited on November 22, 2022).
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] David Armitage, John Locke, Carolina, and the Two Treatises of Government, Vol. 32 No. 5, 602-627 (Political Theory, October 2004), available at https://scholar.harvard.edu/files/armitage/files/armitage-locke.pdf (last visited on November 22, 2022).
[8] John Locke, Locke and Liberty: Selections from the works of John Locke, 185 (Pall Mall Press, London, 1960).
[9] Bernadette McSherry, Managing Fear, 15 (Routledge, 2014).
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Ibid.
[15] Udeerna Tippabhatia, 5 things to know about Hindus in Pakistan (Hindu American Foundation, 13 October
2020), available at https://www.hinduamerican.org/blog/5-things-to-know-about-hindus-in-pakistan (last visited on November 22, 2022).
[16] BBC, Who are the Uyghurs and Why is China being Accused of Genocide? available at https://www.bbc.com/news/world-asia-china-22278037 (last visited on November 22, 2022).
[17] Supra note 9 at 16.
[18] Ibid.
[19] Ibid.
[20] Ibid.
[21] Pat O’ Malley, Governmentality and Risk 4-5 (Sydney Law School Research Paper 09/98, 2009), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1478289 (last visited on November 23, 2022).
[22] Ibid.
[23] Ibid.
[24] Naseer Ganai, Arrests under PSA amount to ‘Thought Crime’, say Kashmir Lawyer as 100s remain under detention (Outlook, October 3, 2019), available at https://www.outlookindia.com/website/story/india-news-arrests-underpsa-
amount-to-thought-crime-say-kashmir-lawyers-as-100s-remain-under-detention/339932 (Last visited on November 23, 2022).
[25] Bhupinder Singh, Over 750 dead, Thousands Detained: 100 Days of Myanmar’s Military Coup (2021), available at https://www.indiatimes.com/news/world/myanmar-military-coup-100-days-photo-gallery-540231.html (last visited on November 23, 2022).
[26] Supra note 9 at 17.
[27] Ibid.
[28] Ibid.
[29] Ibid.
[30] Ibid.
[31] Ibid.
[32] Ibid.
[33] Supra note 9 at 22.
[34] The Constitution of India, arts. 19, 21.
[35] Ibid.
II. The National Security Act, 1980
The term “security” is often understood as ‘freedom from danger and threat.’[1] This term, though prima facie, arouses the notions of military security (armed or defence forces) or border security, etc., in the reader’s mind, it has wider notions. For humans to be secure and safe, it is essential to not only safeguard our borders but also assure security within the State. Keeping this in mind, legislations like NSA, or the Armed Forces (Special Powers) Act, 1958 (for short “AFSPA”), etc., were developed which were intended to protect national interests as well as the Country’s unity and integrity from bad actors within the State. No doubt, any Country would require security legislation if the circumstance calls for it, such as in case of an emergency. However, India is one of the nations where such regulations are constantly in effect. These laws are frequently criticized in India for providing the State with unbridled and unregulated power. It is constantly argued and debated in the news that India’s security legislation such as NSA has been severely abused by the government, time and again, which will be analysed in this chapter.
Dr. D.Y. Chandrachud, J., serving as the Country’s 50th Chief Justice, says, “Dissent is a democracy’s safety valve. When the government imposes limitations on individuals’ personal liberties in order to further its own interests, it moves away from democratic ideals.”[2] As a result, it is important to consider if the security laws, particularly NSA, are enhancing or damaging democracy with their purported goal of promoting the unity and integrity of the Country. This cannot be understood properly without tracing the historical evolution of preventive detention and such laws, which we must now turn to.
[1] Security, Cambridge Advanced Learner’s Dictionary (Cambridge University Press, 4th edn., 2013); See also Security, Cambridge Dictionary, available at: https://dictionary.cambridge.org/dictionary/english/security (last visited on November 23, 2022).
[2] Ashok Dutta, Dissent is the safety valve of a democracy: Justice Chandrachud, (Hindustan times, February 15, 2020), available at https://www.hindustantimes.com/india-news/dissent-is-the-safety-valve-of-a-democracy-justice-chandrachud/story-1vOft3QfRvszjGuBBWSuLI.html (last visited on November 23, 2022).
Historical Background
Preventive detention laws should have expired when India gained independence, but perhaps because the Republic of India was founded amid the civil unrest that resulted in significant losses in terms of lives and property, the framers of the Constitution decided to keep the practice in place as a way to stop the anti-national activity. Thus, in 1950, Parliament approved the Preventive Detention Act (for short “PD Act”). After this Act’s expiration in 1969, the Maintenance of Internal Security Act (for short “MISA”) was passed in 1971. This was followed by the Terrorism and Disruptive Activities (Prevention) Act (for short “TADA”), which was passed in 1985. The National Security Act, 1980 as well as laws with comparable provisions passed by the State governments, remain in effect despite the repeal of MISA and TADA.
The National Security Act is not the country’s first statute of its sort. When tracing the history of preventive detention laws in India, it goes back to the early years of British administration, when the Bengal Regulation—III, 1818 (also known as the Bengal State Prisoners Regulation) gave the government the authority to hold anybody on the basis of a single suspicion.[1] During the First World War, the Defence of India Act, 1858 (for short “DI Act”) was modified to allow the State to imprison a citizen proactively.[2] The severe and oppressive provisions of the DI Act were proposed to be kept in the law permanently by the Rowlatt Committee, which was ratified following the First World War.[3] The intriguing aspect of the Rowlatt Bills was that they allowed the State to imprison a person without granting them the ability to file a legal complaint or even access to legal counsel.[4] The opposition to these Rowlatt Bills culminated in the massacre in Jallianwala Bagh. The greatest way to sum up the Bills back then was “No vakil, no appeal, no daleel.”[5]
Another piece of wartime legislation, the Defence of India Act, 1939, contained Rule 26 that permitted the detention of a person if it was “satisfied with respect to that particular person that such detention was necessary to prevent his acting in any manner prejudicial” to the defence and safety of the nation.[6] Thereafter, the Government of India Act, 1935 granted the State the authority to detain people proactively for reasons related to defence, foreign policy, or the performance of Crown duties in its dealings with the Indian States.[7] Laws related to the maintenance of public order were also created by provincial legislatures.[8]
When the Indian Constitution was adopted, Article 21 provided that everyone had the right to life and personal liberty, which could not be violated without following the proper legal procedures. The Supreme Court stated that any procedure that was properly authorised would be a “procedure established by law” while defining the difference between “the procedure established by law” and “due process of law” in the case of A.K. Gopalan.[9] But in Maneka Gandhi’s case,[10] the Supreme Court overturned this belief, ruling that the “procedure established by law” must also be reasonable, just, and justifiable.
A preventive detention statute may be passed under the conditions outlined in Article 22 of the Constitution. The MISA Act, which was passed in 1971, replaced the PD Act, 1950 as the law in effect. In 1977, the MISA was abolished. And the three years between the repeal of the MISA in 1977 to the enactment of the NSA in 1980 were the only time in the Indian “republic” without a preventative detention statute.[11]
[1] Hallie Ludsin, Preventive Detention and the Democratic State, Ch. 4 (Cambridge University Press, March 2016).
[2] Supra note 38.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Emp. v. Sibnath A., 1945 P.C. l56.
[7] Supra note 38.
[8] Ibid.
[9] A.K. Gopalan v. State of Madras, 1950 SCC 228.
[10] Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
[11] Supra note 38.
International and Constitutional Underpinnings
Under the global justice system, preventive detention laws are mainly governed by International Human Rights Law (for short “IHRL”) and International Humanitarian Law (for short “IHL”). However, both differ in their application. While IHRL governs all preventive detention laws, IHL is only applicable in cases of armed conflict. Additionally, the Universal Declaration of Human Rights (for short “UDHR”), and the International Covenant on Civil and Political Rights (for short “ICCPR”) acts as a primary source. Some other sources such as Human Rights Committee’s comments though not binding in nature, persuade the law on preventive detention. The significant limitation imposed by international laws on the application of preventive detention is the use of arbitrary detention. Both IHL and IHRL treat the prohibition of arbitrary detention as customary international law. Additionally, Article 9 of both UDHR and ICCPR absolutely prohibits the use of arbitrary detention. The premise of the prohibition on arbitrary detention is majorly based on the right to liberty. Article 9 of ICCPR elucidates that the right to liberty can only be limited “on such grounds and in accordance with such procedure established by law”, not otherwise. Therefore, in light of principles and rules laid down under international law, it becomes essential for the States to ensure legality and non-arbitrariness while detaining under preventive detention laws. To ensure the legality of detention, States must specify the grounds for making arrests and ensure abidance to rule of law. The legality principle also demands the State to enlist the behaviour that might lead to detention. Furthermore, the Human Rights Committee holds the view, that states should guarantee procedural and substantive rights to the accused to abide by the principles of ICCPR. The States are also allowed under Article 4 of the ICCPR to adopt the principle of derogation. That is, it allows States to derogate from rights of liberty in cases of imminent threat or emergency. Although some States interpret emergency in a broad manner, however according to article 4 of ICCPR, it has to be interpreted in a limited fashion. Derogation under Article 4 would only be justified if the nature of an emergency is such that it threatens the ‘life of the nation’. Even though ICCPR allows derogation, the UN Human Rights Committee treats ‘prohibition on arbitrary detention as a peremptory norm that is not subject to derogation’. Therefore, it becomes all the more essential for States to apply preventive detention laws in proportion or strike a balance, as discussed above in the first chapter.
The Constitution of India under Entry 9 of List 1 of the Seventh Schedule confers power to the Parliament to draft laws regarding preventive detention. The grounds for drafting preventive detention laws in India are to safeguard the country and to maintain foreign affairs. Additionally, Entry 3 of List III grants concurrent power to the Parliament and the State Legislature to make laws with respect to preventive detention. The power to legislate can be invoked by the Parliament or State Legislature for matters relating to ‘preventive detention for reasons connected with the security of a state, the maintenance of public order, or the maintenance of supplies and services essential to the community.’ Additionally, Article 22(3) paves way for preventive detention laws. Article 22(3) overrides clauses (1) and (2). It legalizes detention without trial in two cases. First, during a situation of war, where a person can be arrested if he is an enemy alien. Second, the arrest is valid if it is made under preventive detention laws enacted by the State or the Parliament. Further Article 22(4) stipulates the maximum period of detention to be three months. However, it can be extended in case the advisory board thinks that there is sufficient cause to detain a person. Article 22(5) makes it necessary for the authorities to make detainees aware of the grounds of arrest and also afford the opportunity for legal representation. But, Article 22(6) makes the provisions in Article 22(5) redundant if authorities are of the opinion that disclosing the information might hamper the public interest. Further, Article 22(7) empowers Parliament to prescribe ‘circumstances or class (es) of cases in which a person may be detained for a period longer than three months.’
Need for NSA
The question of desirability is more of a socio-political question rather than a legal one. Despite the experience of witnessing the use of preventive detention laws during the colonial rule, the Constituent Assembly considered keeping provisions pertaining to preventive detention in the constitution. The debates on the right to individual liberty and provisions against arrest and detention were part of Articles 15 and 15 (A) during the functioning of the Constituent Assembly. The need for NSA can be better understood by tracing the societal conditions prevailing back then from the debates in the Constituent Assembly.
India established a constituent assembly post-independence in 1946 with the purpose of drafting the constitution, and one of the main points of discussion and debate was the inclusion of preventive detention laws. The Constituent Assembly faced a dilemma. On one hand the need was felt for providing the most extensive individual liberty in independent India and on the other hand, the need was felt for creating a strong government which could take care of the crisis present during independence. In other words, several members of the Constituent Assembly expressed their concern regarding the potential misuse of preventive detention, whereas some thought that the arbitrary force of preventive detention was a necessary compromise for securing India from the larger threats to its unity and democracy. The threats at the time were seen mainly because of the post-partition instability, rising black marketeers, thugs, and refugees, and rising communist resistance in Southern-India post 1948.[1] Moreover, the experience of colonial rule had made it apparent that governments and members of the executive could misuse preventive detention. This could severely inhibit personal liberty and would also hinder the application of due process of law.
Most assembly personnel were comfortable with the idea of preventive detention during emergencies. The tougher question was whether it should be allowed during peacetime. Those who believed the laws to be justified were of the view that disruptive elements of the society were hard to prosecute via normal procedures since they would intentionally tamper the evidence and threaten any witnesses.[2] They believed that such elements would disrupt the rights of the larger society hence found it justified to restrict their freedom.[3] Moreover, their belief that government would not use these powers abusively was strengthened by the support of leaders who themselves had suffered because of preventive detention under colonial rule.[4] Further, it was felt that the independent democratic Indian state would be vastly different from the colonial state in its functioning. Since India would function as a democracy after independence, the potential for misuse of power and the potential for the misuse of preventive detention would be very low. The democratic state would do its utmost to respect and further individual liberties. Yet, in order to safeguard the national interest, it was important to have provisions such as preventive detention.
Members, who were critical of this idea, perceived the government as being no different from the colonial masters if the detention powers were to be allowed during peacetime. They saw it as a severe violation of democratic principles. They believed that this could open doors towards tyranny that could lead to rebellion among the people.[5] They also believed this could be used as an easier route to incarceration instead of taking the lengthier route of prosecution.[6] And some doubted the trust being placed in the current leaders of the nation, for they would not be there forever. A constituent assembly member, H.V. Kamath, argued exactly this.[7] He imagined the possibility that if someone who was completely in opposition to the ideals of democracy were to come into power, he would use the same laws to repress the country and the liberty of its people. Some members also brought up the Japanese Constitution, which had acted as a reference for certain provisions in the Indian constitution, as an example that did not allow preventive detention even in the post-World War II instability.[8] They further noted that India’s situation was much better than Japan’s.[9]
In response to this, it was argued that the security threats that India faced at the time of independence were too grave to be ignored and hence provisions such as preventive detention were necessary. It was also suggested that procedural protections would be provided in order to check for the potential misuse of preventive detention. It has been argued that the justification for including the provisions on preventive detention in the Indian constitution rested on the anxieties present at the time of independence. These anxieties were a product of the violence faced during partition and the political fragility of independent India. Given these circumstances, it was considered viable to have a provision for using preventive detention even during peacetime. In the end, advocates of the preventive detention laws stood out. The Indian constitution allowed both the State and Central governments the authority to ordain preventive detention in peacetime. Perhaps the best explanation for this was given by the assembly member B.M. Gupte. He noted that even though the sympathy goes out to the high principles of democracy that they themselves had upheld and propagated during the struggle for independence, the wariness of the most influential leaders, who have mass representation in the country is a matter of much significance. These leaders warned everyone of severe dangers to the liberty of India looming wide. And thus, in situations such as these, noted B.M. Gupte, one cannot take chances.[10]
Another important debate was held in this context with regard to the ‘due process of law’ and the ‘procedure established by law’. This debate related to whether the legislature or the judiciary was to be trusted more as being the protector of individual liberty. Due process of law would enable the judiciary to be the interpreter and protector of individual rights whereas procedure established by law, would empower the legislature to have the last word on the matter. When the matter was put to vote, the phrase ‘procedure established by law’ was chosen by the Constituent Assembly. By so doing, the power of the judiciary was reduced in the contest of questioning the validity of the law with respect to due process.
If we look at ancient India, there is a famous saying that at the time of the attack, “the doors of India were always opened from within” than outside. This takes us to the famous story of “Jaichand”, where he conspired with the Muslim invaders of Ghor which led to the defeat and capture of Prithviraj, eventually turning Jaichand into a traitor. Such tragic tales of betrayal can be traced back to the history of the Indian subcontinent.[11] Even the king, Jiwaji Rao Scindia, after the revolution of 1857, did not raise the army with the British and got Tatya Tope and Laxmibai killed in the hands of the British due to his loyalty to British rule. Eventually, the king was given the title of Knights Grand Commander by the British.[12] There was another instance of Raja Ranvir Singh who also betrayed the Country and joined hands with the British by providing an army and weapons to them to end the ongoing Sikh rebellion in Punjab.[13] Raja Rai Bahadur Lal of the princely state of India also played the role of a traitor and kept his doors open for the British. It is said that the father of this king was King Raghunath Bahadur who was the Chief Minister of Aurangzeb.[14] To befriend the British, he became a slave to British rule and betrayed the Country. Mir Jafar’s betrayal serves as another instance where he joined with the British and defeated the Nawab of Bengal Siraj-Ud-Dala in the Battle of Plassey and took power as Bengal.[15] Eventually, Mir Jafar accepted the slavery of the British by becoming blind to the greed for power, which greatly helped the British in keeping the Country as a slave. In the recent past, the attacks on parliament in 2001, and the Mumbai attacks in 2008, culminated due to the help terrorists received from within India.[16] The assassination of the two prime ministers of India or the voices of cessation or the role played by communists in weakening the Country are a few instances that assert strongly the desirability of preventive detention laws in India.
[1] Supra note 38 at 88.
[2] Supra note 38 at 89.
[3] G. Durgabai, Constituent Assembly of India Debates (Proceedings), Vol. IX (16 September 1949), available at http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C16091949.html (last visited on November 24, 2022).
[4] Supra note 61.
[5] Supra note 61.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Dr. Bakshi Tekchand, Constituent Assembly of India Debates (Proceedings), Vol. IX (15 September 1949), available at https://indiankanoon.org/doc/213750/ (last visited on November 24, 2022).
[10] Supra note 38 at 91.
[11] News Crab on Daily Hunt Platform, available at https://m.dailyhunt.in/news/india/english/newscrab-epaper-dh32db2fdb07694f23a2e9e08cf334911b/because+of+these+5+traitors+and+the+greedy+kings+of+india+india+was+a+slave+of+the+british-newsid-n168572604 (last visited on November 24, 2022).
[12] Ibid.
[13] Ibid.
[14] Ibid.
[15] Ibid.
[16] Ramesh Vinayak, 10 biggest National Security Failures, (India Today, Dec. 29, 2008) available at https://www.indiatoday.in/magazine/nation/story/20081229-10-biggest-national-security-failures-738579-2008-12-19 (last visited on November 24, 2022).
Is it Constitutional?
The constitutionality of an Act can be viewed from two perspectives: First, whether the provisions violate the Constitution, and Second, has the Act or provisions have been declared so by the Court. As for the former part, after reading the Act, one may conclude that the provisions are not violative of the Constitution, though they confer excessive power to the government. There has been a trend of abusing these laws (which would be discussed in the next heading) to hide the flaws in the criminal justice system and to avoid the constitutional and statutory rights afforded to the accused. Moreover, it seems to be more of a policy issue than the legal one, which would be thoroughly discussed in the next head. As for the latter part, the Judiciary of India with its independent status and power of judicial review has developed the judicial jurisprudence of preventive detention laws since independence. It has used its interpretative tools to evolve the understanding of legislative provisions and held them to be constitutional.
With the passing of the PDA Act in the year 1950, A.K. Gopalan filed a writ petition in the Supreme Court of India challenging the validity of the Act.[1] The arguments, in this case, proceeded on hypothetical scenarios because PDA Act prevented A.K. Gopalan to disclose the papers of his detention. The majority of the judges on the bench ruled in favour of the validity of the Act. It was held that law in preventive detention should only be judged through the provisions of Article 22. The law does not have to satisfy the requirements laid down in Articles 14, 19, and 21. Although A.K. Gopalan was a bad law, it still pointed out the despotic rules laid down by such laws, which did not allow A.K. Gopalan to defend himself in Court. Almost after 25 years, the Supreme court reversed the bad law laid down in the A.K. Gopalan case. The court in the case of Haradhan Saha[2] held that preventive detention laws are not limited to the scrutiny of Article 22 but also have to stand the test of Articles 14,19 and 21. The Court also observed that the idea is not to debar the executive authorities from passing the detention order under preventive detention laws, but the executive should exercise their authority to detain under preventive detention laws only after exhausting the remedies available under the criminal law of India. Then in the case of Khudiram Das v. State of West Bengal,[3] the constitutional validity of MISA was in question. The supreme court was of the opinion that all preventive detention is justified according to Article 22 of the Constitution. However, it would only be legitimate if it satisfies the condition laid down in Articles 14, 19, and 21. In the case of Sunil Fulchand Shah v. Union of India,[4] the Court recognised that personal liberty is the foundation of democracy. It is the most significant of all the other freedoms given under the constitution of India. Only when a person has liberty, he can enjoy other rights. To protect the realm of personal liberty, the founding fathers of the constitution provided safeguards from arrest and detention under Article 22 of the Constitution of India. Whenever detention is ordered under Article 22, it has to stand the scrutiny of Article 21. Therefore, the restrictions imposed on a person under preventive detention laws have to be minimal.[5] Time and again apex court has acted as a pillar to safeguard the rights of the pool. In the case of Khajja Bilal Ahmed v. State of Telangana,[6] the Court held that state and irrelevant incidents cannot form the basis of preventive detention. In yet another case the Supreme court held that if one of the grounds is non-existent, misconceived, or irrelevant in a detention order under the NSA, it will be invalid.[7] Further, in the case of A.K Roy v. Union of India,[8] Court examined the validity of the NSA. The Court established the fact that “it is excellent to have a giant’s strength but it is tyrannical to use it as a giant and therefore, the Constitution has chalked out various checks and balances to ensure a reasonable exercise of power”.[9] Further, the Court held that the personal liberty of an individual can be restricted under NSA. However, the extent of restriction should be limited. Also, the provisions should be established following reasoned and fair procedure keeping in mind the principles of natural justice.[10]
In the recent case of Banka Sneha Sheela v. The State of Telangana,[11] the apex Court relied on the case of Ram Manohar Lohia v. State of Bihar[12] to distinguish between mere law and order disturbance and a public order disturbance. It was observed that a disturbance of ‘law and order’ situation is of less gravity than a disturbance of ‘public order’. The Court also opined that “Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and England, except during war. Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise, we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal.”[13] The Court held the view that “Preventive detention must fall within the four corners of Article 21 read with Article 22 and the statute in question. For public order to be disturbed, there must in turn be public disorder.”[14] In the case of Justice K. S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors., Justice Chandrachud established three requirements for an infringement of an individual’s personal liberty: (i) validity, which presumes the existence of a law; (ii) need, identified as a legitimate state goal; and (iii) proportionality, which ensures a just balance between the goals and the means used to achieve them.
At this point, it is also impertinent to differentiate the provisions of NSA from the Jammu and Kashmir Public Safety Act, 1978 (for short “PSA”) and preventive detention measures in the Code of Criminal Procedure, 1973 (for short “Cr.P.C.).
The PSA was sculpted under the government of then Chief Minister Sheikh Abdullah in the year 1978. The 1978 Act was the reflection of the Public Security Act, 1946, promulgated in the colonial era to hold up revolutionaries on the grounds of “public order”.[15] In the post-colonial era, the Act was succeeded by Preventive Detention Act, 1954. This Act was to automatically terminate at the end of five years. However, prior to the expiry of the Act, it was amended and replaced by Preventive Detention Amendment Act, 1958. The 1958 Act was further amended twice in the year 1964 and 1967. Subsequently, Sheikh Abdullah introduced the Jammu and Kashmir Safety Ordinance Act (for short “SOA”) in the year 1977, culminating in Jammu and Kashmir Public Safety Act, 1978. The Act was devised to protect the forest cover from timber smugglers. However, with the boiling tensions between India and Pakistan, the state of Affairs of Jammu and Kashmir was disrupted. The government then had to use the wide powers under Section 8 of the Act, to discourage the militant activities taking place in Jammu and Kashmir over the period of time.
Section 8(1)(a)(i) of the Act authorizes the government to detain any individual “with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of the public order.”[16] Although section 13(1) of the Act makes it mandatory that detainees must be made aware of the grounds of their arrest and also allow for legal representation. However, the safeguard is limited by Section 13(2). It empowers the authority to not “disclose the facts which it considers to be against the public interest”.[17] This means that a detainee may not be allowed to represent himself or have a lawyer if the detaining authority considers it to be a threat to the larger public interest. Consequently, any alternative interpretation of the situation can be turned against the accused, leaving too much power in the hands of the detaining authority unchecked. Thus, making the Act more susceptible to being abused by the authorities. Further, Section 10-A of the Act makes the grounds of detention severable in nature. Meaning, if an individual is detained on two or more grounds and either of the ground is “vague”, “non-existent” or “not relevant”.[18] Then the relevant ground can be severed from the non-relevant one, thereby making the order of detention valid in nature. The Act paves way for the rectification of errors carried out by authorities. Thereby, making the Act more prone to be misused by the government. Also, Section 22 of the Act gives a clear pass to the authorities from any legal action against them for carrying out the detention in accordance with the Act. It assumes that the authority will always act in good faith. In addition, Under Section 19(1), the government can choose to cancel or modify any detention at any point in time. However, subsection (2) to Section 19 adds a slight variation to the power of revocation. It states that there is no impediment to establishing a new order of detention against a person based on the identical circumstances as an earlier order of detention when the order is cancelled owing to illegality due to a ‘technical defect’.[19] That is to say, Section 19(2) permits authorities to arrest and detain a person again based on the same circumstances, even after the incarceration has been revoked. This results in a vicious cycle and a significant gap in the Public Safety Act. Furthermore, it creates opportunities for harassment against the same individual who is arrested again.
On the other hand, Section 3 of the NSA empowers the Central and the State government to detain any person “with a view to preventing him from acting in any manner prejudicial to the security of the state”[20] or public order. Similar to PSA, Section 8 of the Act makes it obligatory for the authorities to make the detainee aware of the grounds of his arrest within a maximum period of 15 days.[21] However, section 8(2) grants discretionary powers to authority to not disclose grounds of arrest in view of “public interest”.[22] Such expansive discretionary powers in the hands of authorities can jeopardize the rights of the detainee. Section 9(1) of the Act makes provision for the constitution of an advisory board to review the detention, comprising 3 members “who are or have been, or are qualified as, judges of a High Court”.[23] But the major setback of the provision is that the appointment of board members has to be done by the government. It’s similar to an executive review of the executive’s decision, except that the executive may also choose members who are ready to work hand in hand with the government, giving it unparalleled ability to act on its will. A further hitch to the rights of the accused emerges under Section 11(4) of the Act. According to the Section the proceedings carried out by the advisory board have to be ‘confidential’.[24] It also states that “Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board”.[25] Consequently, leading to the violation of the principles of natural justice of fair and unbiased hearing.
Further, Section 13 provides intemperate powers to the government to ‘revoke or modify the detention order’.[26] Similar to PSA, this Act also contemplates the principle of good faith in favour of the detaining authorities, excusing them from any legal liability for actions taken under Act.[27] Also, Section 14(2) expressly indicates that a new order can be issued regardless of whether the preceding order has been revoked or has expired. If the government seeks the same, it may result in longer detention. Even if an individual is imprisoned for clearly illegitimate reasons, he will not be freed as long as government officials are able to include one of the grounds for imprisonment in the detention order. This highlights a noteworthy crevice within the National Security Act and further increases the chances of badgering against the person who is captured again.
When we look at the preventive measures under Cr.P.C., they are mainly covered under Sections 149, 150, and 151 of the Cr.P.C., which talks about the preventive measures to be taken by police. According to Section 149 of Cr.P.C., every police officer is empowered to interpose and make his best efforts in preventing a cognizable offence. A police officer is therefore granted a duty as well as an authority at the same time. According to Section 150 of Cr.P.C., every police officer on receiving information of a potential design to commit any cognizable offence, shall communicate such information to the officer whom he is subordinate to, and to any other such officer who has the authority to deal with the prevention of commission of such cognizable offence. According to Section 151(1), Cr.P.C., a police officer by knowing of or receiving a design that has a potential to commit any cognizable offence may arrest such person so designing, without a warrant or the orders from a Magistrate, provided it appears to the police officer that the commission of the offence can’t be prevented by any other way. Section 151(2), Cr.P.C., says that the person so arrested shall not be detained in custody for more than twenty-four hours from the time of his arrest unless his further detention is ordered by the Magistrate. While exercising preventive measures under Cr.P.C., police are bound by the safeguards that are in place under the said code, and hence, this is what makes these provisions different from NSA.
[1] A.K. Gopalan v. Union of India, (1950) SCC 88.
[2] Haradhan Saha v. State of West Bengal, (1975) 3 SCC 198.
[3] Khudiram Das v. State of West Bengal and Others, (1975) 2 SCC 81.
[4] Sunil Fulchand Shah v. Union of India, (2000) 3 SCC 409.
[5] Ibid.
[6] Khaja Bilal Ahmed v. State of Telangana, 2019 SCC OnLine SC 1657.
[7] Pebam Ningol Mikoi Devi v. State of Manipur, (2010) 9 SCC 618.
[8] A.K. Roy v. Union of India, AIR 1982 SC 710.
[9] Ananya Bajpai, Constitutional Law: AK Roy Case (Lex Life India, 27 July 2020), available at https://lexlife.in/2020/07/27/constitutional-law-ak-roy-case/ (last visited on November 25, 2022).
[10] Supra note 84.
[11] Banka Sneha Sheela v. State of Telangana and Others, 2021 SCC OnLine Sc 530.
[12] Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740.
[13] Supra note 86.
[14] Ibid.
[15] Mohmad Abid Bhat, Preventive Detention in Counter-insurgencies: The Case of Kashmir, 55 (Insight Turkey, 2019), available at https://www.researchgate.net/publication/337870818 (last visited on November 25, 2022).
[16] The Jammu and Kashmir Public Safety (Amendment) Act, 2018, sec. 8(1)(a)(i).
[17] PSA, sec. 13(2).
[18] PSA, sec. 10-A.
[19] PSA, sec. 19(2).
[20] NSA, sec. 3.
[21] NSA, sec. 8.
[22] NSA, sec. 8(2).
[23] NSA, sec. 9(1).
[24] NSA, sec. 11(4).
[25] Ibid.
[26] NSA, sec. 13.
[27] NSA, sec. 16.
A weapon of repression?
There are significant lacunas in the current form of preventive detention laws. Widely expansive and unchecked powers under the preventive detention laws allow the government to book almost anyone under ambiguous charges. Furthermore, the government gets a clean chit even if an individual is wrongly incarcerated. With such weaknesses in place, there have been many instances in the past as well as the present where the government has used this tool to repress dissent, minority voices, and opposition parties.
Back in 1977, the Shah Commission released a detailed report on the sheer abuses of power that were done under the garb of MISA during the emergency period that was declared by Indira Gandhi to curb the rise of communist opposition. The report pointed out that almost 35000 people were detained under MISA and a third of that number were members of political parties. The report mentioned that on the night when an emergency was declared by Indira Gandhi, 67 members of the opposition party members were detained in New Delhi alone.[1] The carnage of the democratic fabric did not stop with these horrors of the past. They continue to date. For instance, in a report[2] submitted by Amnesty International, it was stated that PSA violates India’s International Human Rights Obligation. It further elucidates the fact that the PSA is used to arbitrarily detain political activists and supporters instead of using the ordinary criminal justice system. Individuals are detained without sufficient evidence of trial or conviction, majorly to keep them “out of Circulation”.[3] This is a clear and severe violation of the right to life and liberty. How can justice happen in cases such as these where the accused is sans legal aid, or in other words, absolutely powerless? Consequently, one of the foremost protectors of human rights, Amnesty International, was recently forced to leave India due to government intervention with the forceful closing of their bank account. As claimed by Amnesty they had to halt their operations in India due to acts of reprisal. These few examples are indicative of the fact that the use of limitless and arbitrary use of power can bring cause huge repercussions in the future.
Even though the Courts have always stepped up against any infringement of the highly cherished fundamental rights of citizens, the fact is that the high backlog of pending cases that are currently overburdening courts results in it taking several months to get writ petitions against preventive detention orders heard. Hence, it is the process that becomes persecution. That is why it is often said that preventive detention acts as a tool for executive tyranny. If we understand this term, in absolute terms, tyranny is a form of governance that has no sense of constitution or laws or welfare or justice in the society. It is a form of repression meant to subjugate the masses and fulfill the ‘whims’, ‘fancies’, or desires of those that are governing above everything else. Such rulers are called tyrants. Mainly, they protect their position by brute force or violence and not wider opinion.[4] Tyranny, however, may not be limited to a single ruler. Varying types of governments like autocracy, oligarchy, or democracy can be accused of tyranny.
India is a parliamentary form of democracy where the party that wins the maximum seats in the general elections forms the government. Thus, the government that is formed has superior
control over the Parliament’s legislative plans. Significant control of the parliament can allow
the majoritarian government to pass certain legislations that are, on the face of it, for the larger good but also leave a big space for misuse. By passing such legislation, the government has behaved like a demagogue, very similar to what Plato had theorized regarding tyranny. He noted that a tyrant is a demagogue who appears to be just at the outset but only ends up playing with the emotions of the masses. He appeases their prejudices and comes to power.[5] Similarly, under the garb of security threats that cannot be managed with normal prosecution, the government of India has played with the insecurities of the citizens. They have used these laws to create a political stronghold rather than for the security of the country. For instance, according to a 2018 report by National Herald, NSA has been used against Muslims and Dalits in the Muzaffarnagar district of west UP with such high frequency that even a minor brawl between children of different communities led to the detention of the members of the minority community. The preventive detention laws were passed in the hope that they would be used judiciously and sparingly. However, these laws are rampantly used, even for cases that should have been part of the normal path to prosecution. Not just this but these laws have been used to crush dissent of minority voices as well as against opposition political parties. Dr. Kafeel Khan was detained under the NSA for participating in protests against the CAA. He was kept in jail for three days even though he had a bail order. After that, he was served a detention order under NSA. His detention was quashed after 7 months by the Allahabad high court. During this time his family had to request the Supreme Court to get his case expedited in the High Court. These are acts of mass repression and create fear in society. Such fear is extremely dangerous for a democracy. It is a severe violation of the fundamental right of speech and expression and is nothing short of tyranny. The evidence of the tyrannical usage of preventive detention in India is immense and keeps on building every day. The cost to our country rises with every false incarceration and the fabric of our democracy weakens.
[1] Supra note 38 at 117.
[2] Amnesty International India, Tyranny of a ‘Lawless Law’: Detention without charges or trial under the J&K
Public Safety Act, available at https://www.amnesty.org/en/wp-content/uploads/2021/06/asa200122011en.pdf (last visited on November 25, 2022).
[3] Ibid.
[4] Antonis Coumoundouros, Plato’s View of Tyranny, 71 (2006), available at https://dsc.duq.edu/cgi/viewcontent.cgi?article=1448&context=etd (last visited on November 25, 2022).
[5] Sean Illing, The People’s Tyrant: What Plato can Teach us about Donald Trump, (Vox, 2016), available at https://www.vox.com/policy-and-politics/2016/11/7/13512960/donald-trump-plato-democracy-tyranny-fascism-2016-elections (last visited on November 25, 2022).
III. How Supreme Court views orders under NSA
The Courts are designated with the function of interpreting laws and the Constitution. The Constitution being the fundamental law of the land falls upon the judges to ascertain and determine the essence of it and also of the legislative Act. In case of a conflict between the two, the judges are under an absolute obligation to declare the Constitution as the higher law and the irreconcilable difference between the two to be resolved by declaring the statute void. There is no doubt that the Courts have stated the object of preventive detention laws to not punish but prevent the detainee from doing anything prejudicial to the security of the State. Article 22 was in fact a measure to ‘protect’, rather than curtail, the right to life and personal liberty.
As Prof. Anurag Deep puts it “A constitutional democracy is ‘preserved, protected and promoted’ by the power of judicial review. Judicial review shapes and makes the present as well as the future of democracy. The security of the state is equally essential for the democratic survival of the State. Liberty and security are two wheels of the chariot called a democratic republic. The Supreme Court is the sarthi (pilot) of that chariot and has to navigate it in the direction mapped in the Preamble of the Constitution of India. The sarthi has to move the chariot on the highway to protect the fundamental rights of citizens. It has to be fast and swift against the arbitrary decisions of the State. But every highway has some signboard, like go slow-school ahead, sharp turn, etc. While exercising its power of judicial review the Supreme Court is required to take note of these signboards. In the constitutional vocabulary, these sign boards come in various forms where the judiciary has to follow the policy of “go slow”. One such signboard is “national security”. As national security is not a license for the State to take any decision, judicial review is not a license to determine every aspect of executive discretion. The scope of judicial review in national security cases is very limited to the extent of examination of the process and not merit.”
In the case of the NSA, the Supreme Court views the orders passed under NSA in three main categories: Firstly, it holds that the legislature does have jurisdiction and legitimacy to pass laws with respect to preventive detention and such laws are constitutional. Secondly, the judiciary respects the executive authority i.e., it allows the person to be in preventive detention and upholds the executive order passed under section 3 of the NSA. Thirdly, the Court tries to attain a balance between individual interests as well as societal interests. These three aspects are discussed below.
Legality and Legislative legitimacy: A false equivalence?
On a range of issues across several petitions, the Supreme Court repeatedly underlines that the Indian Parliament had full authority to pass the law at issue, and therefore the particular provision at issue. The Court treats its affirmative response to the initial question of whether the Parliament could legislate on a particular subject matter as decisive on the very different question of whether a specific legal provision was compatible with the Constitution. However, simply because an institution exercises legitimate authority does not inexorably mean that the outcome of that exercise will, in substance, be legitimate.
The Supreme Court privileges the first step of its inquiry and avoids the heart of the matter i.e., interpreting what the Constitution demands and allows. To evaluate whether a provision of ordinary law is compatible with the higher law of the Constitution, the Court should explicate what the relevant constitutional provisions mean. If the meaning of particular provisions has been explored in previous decisions, drawing upon those precedents might suffice. Elucidating the necessarily general words of Constitutional provisions is particularly important where statutory provisions seem, on the face of it, to be limiting fundamental rights guaranteed by the Constitution. It is important where these statutory provisions depart from long-established legal
standards within a jurisdiction, as many provisions in NSA, TADA, POTA, and AFSPA do. Previous jurisprudence, developed around challenges to ordinary criminal law, might not address the questions raised by these new, far more extensive, provisions.
In AK Roy, when interpreting the rather loosely worded constitutional provisions on the executive’s ability to pass ordinances that limit fundamental rights, the Court declares that the Constitution “is what it says and not what one would like it to be”.[1] The Court does not acknowledge that in interpreting constitutional provisions abstract enough to accommodate a range of meanings, it shapes the content and scope of those provisions. Avoiding its own activist interpretive stance in other types of decisions,[2] the Supreme Court chooses a far more perfunctory role for itself when reviewing security laws.[3]
In AK Roy, the Supreme Court did, indeed, consider what rights Article 22 of the Constitution
granted to persons who were preventively detained. In its subsequent decisions, however, the Court did not grapple with the content of constitutional rights implicated by the statutory provisions at issue, which included in particular the rights to a fair trial, equality, freedom of association, and life and liberty. In these decisions, the Court simply declares that a contested statutory provision does not violate a particular constitutional right. A more rigorous way to reach the same result would be to acknowledge that the provision in question limits a constitutional right, but on considering the content of the right, find that the limitation is an acceptable one. A disaggregated analysis that acknowledges rather than elides a limit would be more transparent. However, clarity is not its only advantage. Such analysis also serves to protect constitutional rights better over the long term. When the Court simply asserts that, for example, special court trials conducted inside prisons, or custodial confessions admitted as evidence against co-defendants, do not raise, even prima facie, any fair trial concerns, this affects the ambit of the right itself. Such reasoning paves the way for arguments that the right to a fair trial does not include trials in open court or strong safeguards against coerced confessions. By contrast, acknowledging that a particular measure constrains how an individual can exercise a constitutional right, but justifying that constraint would help to limit that constraint to situations where a compelling justification exists.
In a few instances, the Supreme Court takes a step beyond simply asserting that a statutory provision is constitutionally valid. The Court notes in addition that the Constitution allows a particular constitutional right – whether the right to a fair trial or the right to equality or freedom of association – to be limited. However, this approach is also an elision. Very few rights are absolute, but simply because a right can be limited does not mean that any limit is permissible, as the Court’s articulation would imply. The Supreme Court treated the legislature’s choice about how far to limit a right – or, more accurately, the executive’s choice on this question – as decisive. For example, the Court ignored some arguments about potential discrimination under security laws[4] and rebutted others in a manner that entirely begged the question at hand. Petitioners argued the special regulation created by security laws, coupled with wide executive discretion and overlap with ordinary law, created the potential for discrimination because, for substantially similar actions, one person might be investigated and prosecuted under one set of rules, and another person under a different, more onerous set of rules. The Supreme Court consistently responded that differential regulation was not discriminatory because the relevant law created such regulation and that individuals processed under different rules fell into a special category.[5] While upholding the NSA’s provisions on advisory board procedure in AK Roy, the Court dismissed the argument that procedural rights be proportionate to the loss involved – loss of freedom in this instance – for the individual.[6] It rejected the idea of a “prescribed standard of reasonableness”, stating instead that the “availability of rights…can’t be decided generally” and has to be decided “on the basis of statutory provisions which govern the proceedings, provided that provisions are constitutionally valid”.[7] Rather than evaluating whether statutory provisions conformed to constitutional norms, the Court deflected challenges to statutory standards by circular reliance on those very statutory standards. Thus, through this decision, the Supreme Court envisions Constitutional rights not as binding constraints, but as what is left over after the executive enhances its powers to use force and detain individuals.[8]
[1] Supra note 83.
[2] See Christine M. Forster and Vedna Jivan, Public Interest Litigation and Human Rights Implementation: The Indian and Australian Experience, 3 Asian Journal of Comparative Law 1 (2008) at 4-6; See also Sangeeta Ahuja, People, Law, and Justice: A Case- Book on Public-Interest Litigation (Orient Longman, 1997) and Surabhi Chopra, Holding the State Accountable for Hunger, XLIV Economic & Political Weekly 8 (2009).
[3] Mrinal Satish & Aparna Chandra, Of Maternal State and Minimalist Judiciary: The Indian Supreme Court’s Approach to Terror-Related Adjudication, 21 NAT’L L. SCH. INDIA REV. 51 (2009). In this, they argue that the Indian Supreme Court interprets statutes, rather than the constitution, when it reviews anti-terror laws and engages in minimalist interpretation when doing so, deciding cases on the narrowest grounds sufficient to decide the issues
before the Court. While their case-specific analysis is compelling, the researcher argues in contrast to Satish & Chandra that the Supreme Court’s omissions and evasions serve to propound a particular, very limited conception of constitutional rights.
[4] People’s Union of Civil Liberties v. Union of India, (2004) 9 S.C.C. 580, pgs. 35-42, where the Court ignores arguments based on the right to equality while upholding statutory provisions giving the police power to compel individuals, including lawyers and journalists, to disclose information and provisions related to classifying an organization as “terrorist” without notice, publicly declared reasons or a hearing.
[5] See, for example, Kartar Singh v. State of Punjab, (1994) 3 S. C.C. 569, pg. 222 and Naga People’s Movement of Human Rights v. Union of India, AIR 1998 SC 432, pgs. 47-55.
[6] Supra note 83 at 88.
[7] Supra note 83 at 89.
[8] See Connor Gearty, Escaping Hobbes: Liberty and Security for our Democratic (Not Anti-Terrorist) Age, (2010) LSE Law, Society and Economy Working Papers (London: London School of Economics). Gearty argues that, in the early 1800s, a Hobbesian conception of unconstrained armed force as a necessary bulwark against chaos gained more influence than competing ideas of security that valued individual autonomy and the constraints this implied for state power. He argues that the common law reflected and reproduced this Hobbesian view of security as the most important function of the state. The corollary to this was an arid conception of individual liberty as the residue that remains after the sovereign has secured law and order.
Respecting Executive Authority
On one hand, the Supreme Court stressed its special responsibility for upholding rights and curbing unlawful State behaviour. On the other hand, it deferred greatly to the executive and to the legislature in several petitions and was reluctant to actually wield the review powers that it had emphasized.
In AK Roy, the Court upheld the devolution of preventive detention powers to district-level officials.[1] It noted that “a certain amount of minimal latitude has to be conceded” to make the law effective, without acknowledging that executive discretion under the NSA is considerably more than minimal.[2] In the case of Wasiuddin Ahmed v. D.M.,[3] it was held that the detenu’s right to make representation against detention order and right to be heard by the advisory board, the requirement to apprise detenu of his rights is mandatory. But failure to do so would not vitiate the detention order where the detenu, being an enlightened person, is well aware of his rights. Moreover, failure to furnish copies of FIRs filed against him would not deprive him of his right to make effective representation. Further, the detaining authority is not bound to disclose and supply to the detenu intelligence report or history sheet, relied upon in passing detention order. Here as well the Court went a step ahead in respecting the executive authority while limited its power of review to bare minimum. Further, in the case of Ashok Kumar v. Delhi Admn.,[4] while differentiating between ‘Public order’ and ‘law and order’, the Supreme Court asserted as to when can preventive detention measures be resorted to. They held that activities of theft, robbery and ornament snatching by use of knives or guns in particular residential areas of a metropolitan city like Delhi consistently for several years by dangerous and desperate characters, would disrupt public order and hence detention of such persons were justified. In this case, the scope of application of executive authority was in a way increased.
In the case of Dropti Devi v. Union of India,[5] the essence of preventive detention was discussed. The Supreme Court held that generally, the concept of preventive detention is not to punish for an act done but to prevent person concerned in anticipation of doing an illegal activity prejudicial to security of state, etc. It was further held that an act may not be declared as an offence under law but still for such an act, which is an illegal activity, the law can provide for preventive detention if such act is prejudicial to the security of the state. So, the main essence of it is to prevent the security of the state from any act prejudicial to it. In the case of Anil Dey v. State of West Bengal,[6] it was held that the law of preventive detention is a different field of criminology which has its own guidelines, and the Court has to go by them without telescoping into them what a criminal Court expects in a trial of an accused brought before it. Court’s jurisdiction is confined to the examination of violation of those guidelines which have been woven into a consistent fabric by the decisions of the Supreme Court over the years. It was further held that the prejudicial act of the petitioner is alleged to have committed, the law ordinarily forbids judicial scrutiny of the veracity thereof unless it could be shown to be patently incorrect as, for example, by an indisputable dark and has to be understood in its correct setting, grave proportions and clear implications. Further in the case of Bhut Nath Mete v. State of W.B.,[7] It was held that the order passed by advisory board or the government while approving or advising continuance of detention need not be a speaking order. This has been the position of Supreme Court in around 34 petitions out of 88 that came to it challenging the order of detention.
[1] Supra note 83 at 77.
[2] Supra note 83 at 66.
[3] (1981) 4 SCC 521.
[4] (1982) 2 SCC 403.
[5] (2012) 7 SCC 499.
[6] (1974) 4 SCC 514.
[7] (1974) 1 SCC 645.
Striking a Balance: A functional way
Since the jurisprudential essence of most of the criminal law lies in balancing of the conflicting interest, in this case, security of the state (societal interest) as well as personal liberty (individual interest), the Supreme Court in most of the cases, ranging up to 50s strike a balance between these two. In doing so, the Court while setting aside the order of detention, tries to assert or clarify on the safeguards that are there with the detenu. Moreover, in any case where the Court finds that the government authority has proceeded with malice or lack of good faith, it has rejected its order outrightly.
In the case of Aidal Singh v. State of M.P.,[1] the Supreme Court held that neither maintenance of public security nor maintenance of law and order can justify detention under s. 3(2) of the NSA. In Rahamatullah v. State of Bihar,[2] it was held that in case of preventive detention of a citizen, the obligation of the appropriate government is two-fold: i) to afford the detenu the opportunity to make a representation and to consider the representation which may result in the release of detenu, and ii) to constitute a board and to communicate the representation of the detenu along with other materials to the board to enable it to form its opinion and to obtain such opinion. While appraising the facts of this case, the Supreme Court acknowledged that the state govt. failed to discharge the first of the two-fold obligation and waited till the receipt of the advisory board’s opinion which resulted in non-consideration of the presentation for an unexplained period of twenty-four days. This shows that there was no independent consideration of the representation by the state government which is clear non-compliance of article 22(5) of the Constitution and therefore, the detention order was held to be illegal and was eventually quashed.
In the case of Devi Lal Mahto v. State of Bihar,[3] the Detenu was already in jail at the time of passing detention order. There was no reference made in this regard in detention order or affidavit justifying the order by the detaining authority. The Supreme Court held that the detaining authority’s awareness about detenu’s pre-existing confinement was not shown, hence, detention order was vitiated on the ground of non-application of mind. In State of Punjab v. Jagdev Singh Talwandi,[4] it was held that the burden to establish that proper opportunity was afforded to the detenu rests strictly on the State. This position of law was reiterated in the latest case of Sarabjeet Singh Mokha v. District Magistrate, Jabalpur.[5] In the case of Shafiq Ahmad v. D.M.,[6] the Supreme Court smelling a sense of malice found that the explanation of the detaining authority about the police force being remained extremely busy in tackling the serious law and order problem then prevailing in the city was considered not a proper explanation for delay in arresting the detenu. It was held that a failure to property explain the inordinate delay, on facts, rendered the order bad and liable to be set aside.
In the case of Anil Dey v. State of West Bengal,[7] it was also held that though, the veil of subjective satisfaction of the detaining authority cannot be lifted by the Courts with a view to appreciate its objective sufficiency, nevertheless, the opinion of the officer must be honest and real, and not so fanciful or imaginary that on the facts alleged no rational individual will entertain the opinion necessary to justify detention. So also, if the ground relied on have nothing to do with the prejudicial purposes stipulated in the statute, no nexus exists and the other is bad. Even if the incident attributed to the detenu has some connection with the obnoxious activities, it would not be too trivial in substance not too stale in point of time as to snap the rational link that must exist between the vicious episode and the prejudicial activity sought to be interdicted. Moreover, in the case of Bhut Nath Mete v. State of W.B.,[8] it was held that the strict construction of the statute setting the Court’s face sternly against encroachment on individual liberty, keeping the delicate balance between social security and citizen’s freedom, is perfectly warranted. This approach is only an application of the insistence of fairness when power is exercised to affect other’s rights, particularly the most sensitive of all rights – personal freedom. Natural justice is the index of fairness, although in the application of the concept of fair play there must be real flexibility as that very different situations may be met without producing procedures unsuitable to the object in hand. This also emphasises on the balance to be stricken between security and liberty. It was further held that no doubt, the soul of article 22 is the fair chance to be heard on all particulars relied on to condemn the detenu to preventive confinement. But section 3(3) does not or cannot transcend this trammel and never states that particulars conveyed to the government and eventually to the board may be behind the back of the detenu. Reading the provisions liberally and as owing allegiance to article 22(5) of the Constitution, it is right to say that all particulars transmitted under section 3(3) beyond the grounds of detention must, if they have a bearing on the determination to detain, in no way detract from the effectiveness of the detenu’s right to representation about them. The guarantee of article 22(5) colours the construction of section 3. So viewed, there is no inconsistency with or erosion of the “opportunity of making a representation against the order.”
[1] (1981) 4 SCC 428.
[2] (1981) 4 SCC 559.
[3] (1982) 3 SCC 328.
[4] (1984) 1 SCC 596.
[5] 2021 SCC OnLine SC 1019.
[6] (1989) 4 SCC 556.
[7] Supra note 121.
[8] Supra note 122.
IV. Way forward: Conclusion
The provisions for preventive detention were provided in the Indian Constitution as emergency provisions to be used in dire circumstances. However, over a period of time the use of preventive detention laws or the presence of these provisions for preventive detention in extra-ordinary laws seems to have become a regular feature in India. It can be argued that there is merit in the argument that preventive detention needs to be present in order to ensure the security of the Indian State and citizens. However, it is important to ensure that there exist sufficient safeguards for those held under preventive detention. It is critical to ensure that the provisions for preventive detention are not misused.
The above discussion highlights various legislative lacunas present in the current structure of preventive detention laws. First and foremost, the situations that commanded the inculcation of Preventive Detention in India have changed drastically over the years. These preventive detention laws go against the principles of natural justice and are in violation of the theory of Social Contract. The icing on the cake is the fact that the detainee’s right to information regarding his charges can be easily revoked and the detainee is kept sans legal aid. The detainee’s family must shuttle between Courts on their own dime and time to prove innocence while the authorities that manipulate are going normally about their lives. Such a despotic provision is naturally supportive of a military-like order rather than being human-centric. The laws have been practiced by placing ludicrous charges on people especially those of political importance. Genuine activists that should have complete freedom of peaceful protests are wrapped around in a laid-back system, left to suffer the treachery of jails and mental harassment. By giving authorities impunity it has promoted ridiculous investigations and framing of charges, vengeful settling of personal vendettas, and a constriction of the political space. When it comes to the Supreme Court to resolve the conflict between the two interests, the judges are under an absolute obligation to declare the Constitution as the higher law and the irreconcilable difference between the two to be resolved by either balancing them or declaring an executive order illegal. Most of the time, the Supreme Court has tried to strike a balance between the two, while upholding the safeguards available with the detenu, given their limited scope of judicial review. As put by Prof. Dr. Anurag Deep “A constitutional democracy is ‘preserved, protected and promoted’ by the power of judicial review.” In order to further the principles of democracy, the Supreme Court being the sarthi (pilot) of that chariot (democracy) has to navigate it in the direction mapped in the Preamble of the Constitution of India, i.e., to assure dignity of an individual as well as unity and integrity of the nation.
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