March 24, 2020
March 27, 2020

Preventive Detention: A Lawless Law

The recent developments in the Union Territory of Jammu and Kashmir have been a pool of political theatrics mixed with the unholy sanctity of law. Three former chief ministers, many cabinet ministers and a string of upper and lower-rung “mainstream” political leaders have been held under preventive detention using the dreaded Public Safety Act (PSA) that allows detention of any individual for up to two years without a trial or charge. The presumption and subjective satisfaction of the executive, that the detenu is a threat to the maintenance of public order has been at the heart of preventive detentions. This presumption has been used to a large extent in justifying the detention of political leaders, businessmen and prominent members of the civil society.     
Roots of preventive detention:
The seeds of preventive detention were sown in the Article 22 when the legislature initially guaranteed certain unequivocal rights to the detainee under clauses (1) and (2) of the act which includes: right to be immediately informed of the grounds of arrest, to be produced before a magistrate within twenty-four hours of the arrest, and to be defended by a counsel of choice, but followed this with an illogical continuation that was conferred in 22(3) which takes away these rights in case of preventive detention.  The expected fallout of this was witnessed in the first major preventive detention case i.e., AK Gopalan vs State of Madras where the petitioner had challenged the legality of his detention on the grounds that it was in violation of his right to personal liberty under Article 21. Article 21 of the constitution reads as: No person shall be deprived of his life or personal liberty except according to the procedure established by law. The term “procedure established by law” acts as a protective cover against state excesses. Prof PK Tripathi in his book “Spotlights on Constitutional Interpretation” writes that: What is laid down must be a procedure and not something like the exercise of authority by a victorious military commander over a vanquished territory following immediately after the conquest. The court in AK Gopalan read Article 22 and Article 21 in isolation and reasoned that the two articles were not interconnected.  The post Emergency arrests under the Maintenance of Internal Security Act, 1971 (MISA) reaped the harvest of the doctrine established in AK Gopalan. MISA allowed preventive detentions without trial, a consequence of which was the landmark case of ADM Jabalpur vs Shivkant Shukla.  The overwhelming majority of judges, in this case, treaded the government’s line and upheld the contention that rights under Article 21 would stand suspended in the face of Emergency.  The case turned the annals of the Indian judiciary’s history towards a dark chapter where personal liberty was made to stand at the peril of the executive’s whims and fancies. A constricted doctrine emerged later on in AK Roy vs Union of India where the Supreme Court adhered to the principle of reading Article 22 in congruence with the golden triangle of Article 14, 19 and 21 and subjected preventive detention to the satisfaction of the same. This was followed by a string of judgments in Arun Ghosh vs State of West Bengal, Sadanandan vs State of Kerala, Ram Manohar vs State of Bihar where the unreasonable exercise of power, bad faith, non-application of mind were grounds for quashing preventive detention.
Change in the court’s approach
The court’s approach towards personal liberties witnessed a marked change in KS Puttuswamy vs Union of India where a plurality of four judges while liberating the essence of the rights and expanding its horizons beyond the four walls of the Constitution overruled ADM Jabalpur vs Shivkant Shukla. This judgment was supposed to bury the ghost of ADM Jabalpur forever but history is never obliterated, it repeats itself in one manifestation or the other.

Recent red-herrings:

The judgment of the Jammu and Kashmir High Court in Mian Abdul Qayoom vs State of J&K, where the Jammu and Kashmir High Court Bar Association President’s detention under PSA was challenged, has raged the debate about the judiciary’s check on the executive’s heavy-handedness while dealing with cases that revolve around preventive detention.   A single-judge bench of Justice Tashi Rabstan delivered the judgment in Mian Qayoom’s case which seems to have infused soul into the skeleton of ADM Jabalpur. ­­The core aspects underlined in the judgment elucidated the inconvenient positioning vis-à-vis the right of detenu to be heard in conjecture with the liberty guaranteed beyond constitutional borders and the court’s assent to executive superiority over the former. The judgment reads: “Preventive detention is, thus, based on suspicion or anticipation and not on proof”.  The essence of KS Puttuswamy lay in its farsightedness and the court’s activist approach. The J&K High Court, on the other hand, refused to even examine preventive detentions as it effectively turned down its moral and legal obligations by taking the view that the court is not a “proper forum” to challenge such detentions.  The very least that the court could have done is ask for evidence from the executive that would prove that the detainee is a threat to law and order. The court instead liberated the law for the executive and chained it for the detainee in question by basing preventive detention on suspicion or anticipation. The court even refused to apply its reason on the subjective satisfaction of the executive as it expressly remarked that: “Subjective satisfaction of a detaining authority to detain a person or not, is not open to objective assessment by a Court”.  The High Court’s deference to the subjective satisfaction is a turn away from the liberal attitude of the Supreme Court in Bhut Nath Mete vs State of West Bengal where the court said that: “To make subjective satisfaction a sufficient prerequisite to detention is not to reduce judicial review to a brutum fulmen i.e., to make it meaningless. The Tashi Rabstan judgment further reads that: “It is often said and held that Courts do not even go into the question whether facts mentioned in grounds of detention are true or false”. This seems to be a negativist approach, leave aside positivist or activist. For the court to reduce the life and liberty of an individual to a tool in the hands of the executive, where even the basic principles of natural justice pertaining to truth and falsehood are left to the executive’s discretion, is reminiscent of the dark past of ADM Jabalpur and not the bright spot of KS Puttuswamy.

The thread of personal liberty is interwoven with the state’s stick that restricts its way beyond permissible limits. In Bhut Nath Mete vs State of West Bengal, Justice Krishna Iyyer eloquently spelt out the heart and soul of personal liberty’s fight against state’s subjective satisfaction when he wrote: “The humanist restraint so woven into the law against executive extravagance or difference must be strictly applied since casual, careless and uninformed disposal of other’s freedom is to break faith with constitutional tryst”. The constitutional tryst, to borrow from Jawaharlal Nehru – is a tryst with destiny. The destiny of many such detainees effectively rests in the state’s hands. The constitutional checks and balances, if dealt with the spirit of KS Puttuswamy would herald a new dawn for constitutionalism and rule of law, and would essentially curb the executive’s unrestricted idealism in dealing with preventive detentions, or else, the ghost of ADM Jabalpur would continue to haunt the judiciary and our collective sense of democratic values and principles.



Muazzam Nasir is a first-year undergraduate law student at Hidayatullah National Law University, Raipur.

In Content Picture Credit: The Wire

1 Comment

  1. Kshitij Awasthi says:

    Brilliant article, the author has brilliantly tried to link the law’s history and its current use, and how draconian can it really prove to be when left for Administrative Discretion, also really liked that how the author didn’t just underline the problems with it but also went to give some subtle suggestions. Keep it up!!!!

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