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Why Ex Civil Servants' Letter to Modi Govt on Reviewing Preventive Detention Cases Is Significant

Section 3 of the 44th Amendment Act, 1978, which provides for independent advisory boards, remains unnotified despite the passage of 43 years.

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New Delhi: One hundred former civil servants belonging to the New Delhi-based think tank, Constitutional Conduct, have written a open letter to the Union minister of law and justice, Kiren Rijiju, on Saturday, urging him to notify a date when Section 3 of the Constitution (44th Amendment) Act, 1978 will come into force.

Section 3 of the Act, amending Article 22(4) of the Constitution, provides that the Advisory Board, to be constituted for examining the justification for preventive detention under this Article, is to be appointed in accordance with the recommendation of the chief justice of the high court; it is to be headed by a sitting judge of the high court and have at least two serving/former judges of any high court as members of the Board. Section 3 also deletes Article 22(7)(a) of the Constitution which authorises preventive detention without obtaining the opinion of an Advisory Board.

These amendments were meant to curtail the arbitrary power of governments to appoint on the Advisory Board any person qualified to be a judge of a high court, and to ensure that no preventive detentions could be made, or continued, without obtaining the opinion of the Advisory Board within two months of the detention. These provisions have yet to come into force since a notification to give effect S.3 of the 44th Constitutional Amendment has not been issued by any of the successive governments at the Centre since 1978.

At present, any advocate who is qualified to be a judge of a high court can be appointed to the Advisory Board. In effect, any advocate with ten years or more of practice can sit on an Advisory Board. This provision, the open letter apprehends, is vulnerable to abuse by governments which, instead of appointing neutral, independent members to the Board, may appoint persons of their choice, including those owing allegiance to the party in power.

The open letter cites from the Objects and Reasons of the Constitution (44th Amendment) Bill, 1978 to explain why Parliament, soon after the experience of the Internal Emergency of 1975-77, considered it necessary to check arbitrary preventive detentions.

“Recent experience has shown that the fundamental rights, including those of life and liberty, granted to citizens by the Constitution are capable of being taken away by a transient majority. It is, therefore, necessary to provide adequate safeguards against the recurrence of such a contingency in the future and to ensure to the people themselves an effective voice in determining the form of government under which they are to live. This is one of the primary objects of this Bill.”

The provision empowering the Union government to notify the dates for the coming into force of different provisions of the 44th Amendment Act was intended to give the government some flexibility in this regard. “It will be a travesty if this provision is conveniently used by the government to negate the legislative intent by refusing to notify the date of coming into effect of the Constitution (44th Amendment) Act.  The unconscionable delay of 43 years in the issue of this notification has resulted in a brazen abuse of preventive detention laws in gross violation of human rights and a progressive erosion of our cherished democratic values,” the open letter reads.

Rationale of Acts not coming into force

When a legislature enacts an Act, it leaves it to the executive to decide when to enforce it, if in the view of the legislators, such a qualification is necessary to make adequate preparations to facilitate implementation. Thus some Acts passed by Parliament/state legislature have a specific provision enabling the government to bring some or all of the provisions of the Act into force at some future date of its choice through notification in the official gazette. If the Acts do not have such a provision, they come into force immediately, once they secure the assent of the president by virtue of Section 5(1) the General Clauses Act, 1897.

There is nothing wrong with this approach, as long as the executive relies on legitimate grounds to explain why it has not notified a particular Act, or some provisions in the Act, as envisaged in the Act itself.

The landmark case

In A.K. Roy v. Union of India (1982), the government’s failure to notify Section 3 of the 44th Constitution Amendment Act 1978 was under challenge. Roy, a member of parliament belonging to the CPI(M), was detained under the National Security Ordinance, 1980, by an order passed by the district magistrate, Dhanbad, on the ground that he was indulging in activities which were prejudicial to public order. Apart from challenging the ordinance making power and the vagueness of the Act which replaced it, the petitioners sought a mandamus from the court to the government to bring into force Section 3 of the Act without any further delay.

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Eminent civil liberty activist and senior advocate, the late V.M. Tarkunde, contended before the Supreme Court’s Constitution bench in this case that by refusing to bring Section 3 into force within a reasonable time without any valid reason, the Union government has flouted the constituent decision of the Parliament arbitrarily, which is violative of Article 21 of the Constitution.

Tarkunde further contended that no law of preventive detention could be valid unless it complied with Article 22 of the Constitution, particularly with clause (4) of that Article. Since the National Security Act does not provide for the constitution of Advisory Boards in accordance with Section 3 of the 44th Amendment Act, the whole Act is bad, he submitted. There was an obligation upon the Central Government to bring the whole of the 44th Amendment into force within a reasonable time, since Section 1 (2) cannot be construed as conferring a right of veto on the executive to nullify or negate a constitutional amendment, he added.

Tarkunde argued that the executive cannot defer or postpone giving effect to a constitutional amendment for policy reasons of its own which are opposed to the policy of the constituent body as reflected in the constitutional amendment. The fact that the National Security Ordinance provided by clause (9) for the constitution of Advisory Boards in accordance with the provisions of the 44th Amendment shows that no administrative difficulty was envisaged or felt in bringing the particular provision into force. The National Security Act which replaced the Ordinance, however, dissolved the Advisory Boards constituted under the ordinance in accordance with the 44th Amendment and substitutes them by Advisory Boards whose composition is contrary to the letter and spirit of that Amendment.

The late Ram Jethmalani, who also argued before the A.K.Roy bench, submitted that even if Section 3 of the 44th Amendment Act had not been brought into force, the wisdom of that Amendment, in so far as it bears on the composition of Advisory Boards, is available to the court. The view of the Constituent body on that question cannot but be regarded as reasonable, and to the extent that the provisions of the impugned Act run counter to that view, that Act must be held to be unreasonable and for that reason, struck down.

The Constitution bench in A.K.Roy, while expressing its difficulty in issuing a mandamus to the Central Government to notify Section 3 of the 44th Amendment Act, nevertheless agreed with the spirit of the arguments of the senior counsel, representing the petitioners.  The bench observed:

“We do hope that the Parliament will take the earliest opportunity to amend section 9 of the Act by bringing it in line with section 3 of the 44th Amendment as the ordinance did and that, the Central Government and the State Governments will constitute Advisory Boards in their respective jurisdictions in accordance with section 3, whether or not section 9 of the Act is so amended. We are informed that some enlightened State Governments have already given that lead. We hope that the other Governments will follow suit. After all, the executive must strive to reach the highest standards of justice and fairness in all its actions, whether or not it is compellable by law to adopt those standards. Advisory Boards consisting of serving or retired Judges of High Courts, preferably serving, and drawn from a panel recommended by the Chief Justice of the concerned High Court will give credibility to their proceedings. There will then be a reasonable assurance that Advisory Boards will express their opinion on the sufficiency of the cause for detention, with objectivity, fairness and competence. That way, the implicit promise of the Constitution shall have been fulfilled.”

Two dissenting judges in A.K.Roy, Justices A.C. Gupta and V.D. Tulzapurkar, had observed: “Parliament must have taken into consideration the practical difficulties in the way of the executive in bringing into operation all the provisions of the Act immediately, and by enacting section 1(2) it relied on the Central Government to give effect to them. Now when more than two and a half years have passed since the Constitution (Forty-Forth Amendment) Act, 1978 received the assent of the President, it seems impossible that any such difficulty should still persist preventing the Government from giving effect to section 3 of the Amendment Act.” For the two dissenting judges, there could be no difficulty in giving effect to Section 3 of the Act after 2.5 years of the president’s assent. The passage of 43 years without the law coming into force since then truly makes them prescient.

The dissenting judge, Justice Gupta, added:

“It is interesting to note that clause 9 of the National Security ordinance, 1980 provided for the constitution of Advisory Boards in conformity with article 22 of the Constitution as amended by section 3 of the Constitution (Forty-Fourth Amendment) Act, 1978. This makes it clear that non- implementation of the provisions of section 3 was not due to any practical or administrative difficulty. However, the National Security Act, 1980 which replaced the ordinance does not retain the provision of clause 9 of the ordinance and prescribes the constitution of the Advisory Boards in section 9 in accordance with unamended article 22(4). I do not think it can be seriously suggested that a provision like section 1(2) of the Constitution (Forty-Fourth Amendment) Act empowered the executive to scotch an amendment of the Constitution passed by Parliament and assented to by the President. The Parliament is competent to take appropriate steps if it considered that the executive had betrayed its trust.  It does not make the default lawful or relieve this Court of its duty. I would therefore issue a writ of mandamus directing the Central Government to issue a notification under section 1(2) of the Constitution (Forty- Fourth Amendment) Act, 1978 bringing into force the provisions of section 3 of the Act within two months from this date.”

The majority three judges, through the then chief justice, Y.V. Chandrachud, held that it could not issue a mandamus to the government to notify a constitutional amendment. “The power to issue a notification for bringing into force the provisions of a Constitutional amendment is not a constituent power because, it does not carry with it the power to amend the Constitution in any manner. It is, therefore, permissible to the Parliament to vest in an outside agency the power to bring a Constitutional amendment into Force,” the majority judges explained.

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“The Parliament having left this question to the unfettered judgment of the Central Government it is not for the Court to compel the Government to do that which according to the mandate of Parliament, lies in its discretion to do when it considers it opportune to do it. The executive is responsible to the Parliament and if the Parliament considers that the executive has betrayed its trust by not bringing any provision of the Amendment into force, it can censure the executive. It would be quite anomalous that the inaction of the executive should have the approval of the Parliament and yet the court should show its disapproval of it by mandamus,” the majority judges further reasoned.

Centre’s defence

In response to my application under the Right to Information Act, as to the government’s thinking in the matter, the then Central Assistant Public Information Officer, O.P. Bagri, of the Department of Legal Affairs (Implementation Cell) of the Ministry of Law and Justice, Government of India, sent a reply in 2010, as follows:

“Bringing into force Section 3 of the Constitution (44th Amendment) Act, 1978 was considered by the Government on different occasions, but it did not materialise due to several reasons as for bringing into force the said amendment, it was felt necessary to amend certain Central and State laws concerning preventive detention so as to bring them in line with the above amendment.”

Another response in the same year by the Ministry of Law and Justice defended its inaction thus: “It cannot notify the provision independently as the other concerned ministries need to be consulted”.

Does the Union government consider it a legal duty to bring the provision into force? The ministry’s reply in 2010 was that it is a policy matter and as such not covered under the definition of ‘information’ under section 2(f) of the RTI Act, 2005.

Will the change of the governments at the Centre since 2010 mean any welcome change in its responses to pleas to notify Section 3 of the 44th Amendment Act? It seems unlikely, given the fact that the current Narendra Modi government at the Centre has made preventive detentions without accountability the essence of its unabashed control of expression of political dissent.