National Security Public Order and Rule of Law Notes | LL.M. Semester 1 | Mumbai University | munotes

That is not an accident of drafting and it is not a hidden contradiction to be exposed in an answer. It is the design. The framers wrote a bill of rights and, in the same Part, wrote the exceptions to it. What this paper studies is where those exceptions stop.

Four questions the whole book is answering

Every chapter after this one is an answer to one of these, and it helps to know which.

1. On what grounds may the State claim extraordinary power? War, external aggression and armed rebellion for a proclamation of emergency under article 352. The security of the State, public order, the maintenance of supplies and services, and the defence of India for a detention order. The grounds are not interchangeable and the choice of ground decides the validity of the action.

2. What does the State get when it claims it? Sometimes a great deal. A proclamation of emergency suspends the operation of article 19 by force of article 358, allows the President by order to suspend the right to move any court to enforce named fundamental rights under article 359, and lets Parliament legislate on the State List. A detention order gets much less: the power to hold one person, for a limited period, subject to a Board.

3. What is left of the citizen's protection? This is the heart of the paper. After the 44th Amendment of 1978, articles 20 and 21 can never be suspended, so a detenu can always reach a court. Before 1978 the answer was different, and [ADM Jabalpur v. Shivkant Shukla] is what it looked like.

4. Who decides? The official who forms the satisfaction, or the judge who reviews it? Almost every doctrine in this book is an answer to that question in a particular setting: subjective satisfaction, the justiciability of a proclamation, the scope of habeas corpus, the standard of scrutiny under a special statute.

How the four modules fit together

MU's own order is followed throughout, and it is a better order than it looks.

Module I sets out the vocabulary and then the least dramatic of the extraordinary powers, preventive detention. It is least dramatic because it is always available: no proclamation is needed, and the National Security Act 1980 is in force today.

Module II widens the lens twice. First to exceptional legislation, which is what Parliament does when ordinary criminal law is thought inadequate: special offences, special courts, special rules of evidence and bail. Then to emergency, which is what the Constitution itself allows when the State is threatened as a State.

Module III asks the question that decides whether any of this is controlled: can the citizen still get to a court? Access to courts and emergency is the article 359 question. Martial law is the extreme case, where the courts are displaced by the army altogether.

Module IV turns the whole thing round and looks at it from the side of the person: human rights in India, the constitutional philosophy behind them, the groups who need them most, and the machinery that is supposed to protect them.

A worked example

A State faces a campaign of bombings. It proposes to detain suspected organisers without trial, to try those it charges before a special court, and to declare an emergency if the campaign spreads.

Which idea in the title does each proposal engage? Detention without trial engages national security, because it is justified by a threat to the State rather than by proof of an offence. The special court engages public order, because it is a modification of the ordinary machinery for keeping the peace. And both engage the rule of law, because each removes the person from the ordinary process the third idea insists on.

Where does the tension bite hardest? On the first proposal, because a person detained on suspicion has broken no law that anyone has proved, so the first limb of the rule of law, that nobody may suffer except for a distinct breach established before the ordinary courts, is contradicted rather than qualified.

Is that the end of the matter? No. The Constitution's own answer is to permit the power and to condition it: article 22 authorises preventive detention and in the same breath prescribes grounds, an Advisory Board and a maximum period.

So what does this book have to decide? Not whether the three ideas conflict, which they plainly do, but whether the conditions the Constitution and the courts have attached are enough to keep the exception exceptional.

And where is that question answered? In the closing chapter, [National Security and Human Rights: An Assessment], on the evidence the four modules assemble.

What it does NOT mean

It does not mean the Constitution is hostile to liberty. A constitution that contains emergency provisions is not thereby an authoritarian one. Almost every written constitution has them, and article 4 of the International Covenant on Civil and Political Rights, to which India is a party, expressly contemplates derogation in a public emergency threatening the life of the nation. What matters is the conditions attached.

It does not mean the courts have surrendered. The most famous decision in this book, ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, went against the citizen, and students often write the paper as though it were the last word. It is not. It was undermined by constitutional amendment in 1978 and expressly overruled in 2017, and the chapters that follow show a court that has become steadily more willing to look at a detention order.

It does not mean the three ideas are ranked. An answer that says the rule of law must always yield to national security, or that national security is never a good reason for anything, is not an LL.M. answer. The examiner is asking for the conditions under which each prevails.

Quick revision

• The paper is the law of the tension between State power claimed for security and

the standard by which that claim is judged.

• National security is a purpose, undefined in Indian law.
• Public order is a legal category, judicially defined, and a great deal turns on it.
• The rule of law is a standard: government under law, known rules, equal

application, independent adjudication.

• The Constitution contains both the guarantee (article 21) and the exception

(article 22(3)); the paper studies where the exception stops.

• Four recurring questions: on what ground, what power, what protection survives,

and who decides.

• Modules run: vocabulary and detention; exceptional legislation and emergency;

access to courts and martial law; human rights.

Test yourself

1. A State Government detains a person because he has repeatedly assaulted his neighbours. Which of the three ideas in the title decides whether the order is good? Public order, as a legal category. The question is whether repeated assaults on named individuals disturb the even tempo of community life or are merely a law and order problem. The test is in [Law and Order, Public Order and Security of the State: The Three Concentric Circles].

2. Is "national security" defined anywhere in Indian law? No. It appears in the Constitution and in statutes without a definition clause, and that is why its content has to be built from the contexts in which it is used.

3. Why is it wrong to say the rule of law is simply the opposite of emergency power? Because emergency power is itself conferred by law, exercised under conditions laid down by law, and reviewable in defined respects by courts. The question the rule of law asks is not whether the power exists but whether its exercise is bounded and answerable. That distinction is drawn in [Rule by Law, and Why the Difference Decides This Paper].

4. Which two articles of the Constitution, read together, show the design tension this paper studies? Article 21, which guarantees that liberty may be taken only by procedure established by law, and article 22(3), which withdraws the ordinary safeguards from a person held under a preventive detention law.

"War or external aggression or armed rebellion", in article 352(1), which is the trigger for a proclamation of emergency. This is the constitutional high-water mark: it is the only place where a threat to the nation lets the Constitution's ordinary operation be altered.

Two further entries in List I matter for the same reason. Entry 1 is "Defence of India and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination to effective demobilisation." Entry 2 is "Naval, military and air forces; any other armed forces of the Union." Entry 2A, inserted in 1976, covers "Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power", together with the powers, jurisdiction, privileges and liabilities of the members of such forces while so deployed. Entry 2A is the constitutional foundation of the Armed Forces (Special Powers) Act 1958.

Where the statutes use it

Two uses are worth naming now because they recur through the book.

The National Security Act 1980 is named for it and does not define it. Its section 3 speaks of acting in a manner prejudicial to the defence of India, the relations of India with foreign powers, the security of India, the security of the State, the maintenance of public order, and the maintenance of supplies and services essential to the community. National security is the title, not the test.

The Right to Information Act 2005 exempts from disclosure, by section 8(1)(a), information the disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relations with foreign States or lead to incitement of an offence. That is the widest statutory statement of the interest in Indian law, and it shows the phrase's reach: economic interests sit in the same clause as the security of the State.

The judicial approach: a purpose that must be genuine, and then is deferred to

Two propositions have to be held together, and an answer that gives only one of them is half an answer.

First, the label does not settle the question. A Government cannot make an action lawful by saying the words. In Romesh Thappar v. State of Madras, AIR 1950 SC 124, the State of Madras banned the entry and circulation of the weekly Cross Roads under a public order statute, and defended it as necessary for public safety.

Facts. Romesh Thappar published Cross Roads, an English weekly printed in Bombay. Madras banned its circulation in the State under section 9(1-A) of the Madras Maintenance of Public Order Act 1949. He moved the Supreme Court directly under article 32, and the State objected that he should have gone to the High Court first.

Held. The preliminary objection failed: the Supreme Court is constituted the protector and guarantor of fundamental rights and cannot decline an application merely because a High Court has concurrent jurisdiction. On the merits, by a majority with Fazl Ali J. dissenting, the section was void. Freedom of speech includes freedom of propagation of ideas, which is ensured by freedom of circulation. Article 19(2) as it then stood saved only a law relating to a matter which undermines the security of, or tends to overthrow, the State, and a law aimed generally at public safety or public disorder went far beyond that.

Why it matters here. It is the earliest and clearest statement that the gravest ground is not available for the least grave facts. The State said security; the Court asked whether the statute was in truth directed at the security of the State, and held it was not. Note the sequel, which an answer should give: the Constitution (First Amendment) Act 1951 added public order to article 19(2) precisely because this decision and its companion had left the State without that ground.

Second, once the ground is genuinely engaged, courts defer. The clearest modern statement of the limits of that deference is Anuradha Bhasin v. Union of India, AIR 2020 SC 1308, which is worked in [National Security and the Freedom of Speech]. Its importance to this chapter is the framework it insists on: even where security is genuinely at stake, an order must be published, must be reasoned, must be the least restrictive measure available, and must be reviewed periodically. Deference is to the assessment of the threat, not to the manner of responding to it.

A worked example

The Ministry of Home Affairs directs that a mobile application be blocked because it is transmitting user data to servers outside India and this is said to prejudice national security.

Step one: which power is being used? Blocking rests on statute, not on the phrase. The answer must name the provision, because if there is no power there is no order, whatever the reason given.

Step two: is the recited purpose one the provision allows? A provision permitting blocking in the interests of the sovereignty and integrity of India or the security of the State is engaged; a provision permitting it only in the interests of public order would not be.

Step three: is the purpose genuine on the material? This is the Romesh Thappar question. If the material discloses only commercial rivalry, the recital does not save the order.

Step four: is the response proportionate and reviewable? This is the Anuradha Bhasin question: reasons, publication, the least restrictive alternative, and periodic review.

That four step sequence is a usable answer plan for any question in this paper that begins "the Government says it acted for reasons of national security".

Distinctions

What it does NOT mean

It is not a source of power. No authority may act because national security requires it. It must find a provision that confers the power, and the interest then supplies the justification for exercising it. The point is Dicey's first meaning in modern dress.

It is not the same as the security of the State. The second is a term with judicial content and a defined constitutional home; the first is a broader political idea. An answer that treats them as interchangeable will lose the marks that turn on the article 19(2) cases.

It is not automatically a trump card. The proposition that courts will not sit in judgment on an assessment of a security threat is not a proposition that courts will not look at whether the assessment was made at all, on what material, and by whom. That distinction is the whole of [Subjective Satisfaction, and How Far a Court May Examine It].

It does not require a proclamation. Almost everything in Modules I and II operates in ordinary times. Only articles 352 to 360 need a proclamation.

Limits and criticism

Definitional vagueness is the standing criticism, and it is a fair one. A ground that can be asserted and not defined invites use in cases far from its core: the detention of a person for a local dispute, the blocking of speech that is merely embarrassing, the refusal of information that is merely inconvenient.

The answer offered by the courts is procedural rather than definitional. Instead of defining the phrase, they have insisted on the quality of the material, the genuineness of the satisfaction, the giving of reasons and the availability of review. Whether that is enough is one of the arguments a student can develop in [Exceptional Legislation and the Rule of Law: An Assessment].

Comparative note. International human rights law faces the same difficulty and answers it the same way. Article 4 of the International Covenant on Civil and Political Rights permits derogation only in a public emergency which threatens the life of the nation and which is officially proclaimed, and only to the extent strictly required by the exigencies of the situation. It, too, defines the procedure rather than the threat.

Quick revision

• National security is undefined in Indian law. It is a purpose, not a rule, and not a source of power.
• The Constitution's related expressions: sovereignty and integrity of India and security of the State in article 19(2); security of India in List I Entry 9; war, external aggression or armed rebellion in article 352(1).
• List I Entries 1, 2 and 2A: defence, the armed forces, and their deployment in a State in aid of the civil power. Entry 2A underlies AFSPA.
• The National Security Act 1980 does not define the phrase; its section 3 lists six grounds instead.
• Romesh Thappar v. State of Madras, AIR 1950 SC 124: the label does not settle the question, and the First Amendment followed.
• Anuradha Bhasin v. Union of India, AIR 2020 SC 1308: even a genuine security ground requires reasons, publication, proportionality and review.
• The four step plan: which power, which purpose, genuine on the material, proportionate and reviewable.

Test yourself

1. Is national security defined in the National Security Act 1980? No. The Act is named for it and never defines it; section 3 supplies six grounds instead, of which the security of India and the security of the State are two.

2. Which constitutional entry underlies the Armed Forces (Special Powers) Act 1958? Entry 2A of List I, covering the deployment of any armed force of the Union in any State in aid of the civil power, and the powers, jurisdiction, privileges and liabilities of its members while so deployed.

3. What did Romesh Thappar decide about the relationship between public disorder and the security of the State? That they are different, and that as article 19(2) then stood only a law aimed at undermining or overthrowing the security of the State was saved. A law directed generally at public safety or public disorder was outside the reservation and void.

4. Give the four step plan for testing an action taken in the name of national security. Identify the power; check that the recited purpose is one the power allows; ask whether the purpose is genuine on the material; and test the response for proportionality and reviewability.

5. Why is an undefined ground legally stronger than a defined one? Because it cannot be exhausted by a list, it travels across unrelated contexts, and it attracts judicial deference to the executive's assessment.

Article 19(2) as it now stands

Article 19(2) provides that nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

Three things follow.

1. Security of the State and public order are separate heads. The Constitution's own drafting therefore treats them as different, and an answer that runs them together contradicts the text.
2. Every head is subject to reasonableness. The restriction must be reasonable, and the burden of showing that lies on the State.
3. The words are "in the interests of". That is wider than "for the maintenance of", and it was so held in the article 19(2) cases: a law may be in the interests of the security of the State without being confined to acts that directly endanger it.

What counts as endangering the security of the State

The Supreme Court has never given an exhaustive list, and it is better not to pretend otherwise. What it has done is give the class of case.

The expression covers activities aimed at overthrowing the Government established by law by violent means, waging war against the State, armed rebellion and insurrection, and other grave subversion of the State as a political entity. It does not cover disturbances that leave the State itself untouched, however serious they are for the persons affected.

The clearest modern illustration is the way sedition survived. In Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, the offence was upheld only after being confined to speech carrying an intention or tendency to create public disorder or incite violence.

Facts. Kedar Nath Singh, a member of the Forward Communist Party in Bihar, was convicted under section 124A of the Indian Penal Code for a speech attacking the ruling party and the police. Other appeals raising the same question were heard with his, and the validity of section 124A was challenged as an unreasonable restriction under article 19(1)(a).

Held. Section 124A was upheld but read down. Disloyalty to the Government established by law is not the same thing as commenting in strong terms on the measures or acts of Government in order to secure their alteration by lawful means. Strong words expressing disapprobation of Government measures, with a view to their improvement or alteration by lawful means, do not come within the section. Comments, however strongly worded, expressing disapprobation of the actions of Government without exciting those feelings which generate the inclination to cause public disorder by acts of violence, are not penal.

Why it matters here. It shows the operative test. What makes speech a matter for the security of the State is not its hostility but its tendency to violence against the State. That is the line an answer should draw, and it is also the line that the successor provision inherits, on which see [Offences Against the State, and What Replaced Sedition].

Where else the expression appears

Entry 3 of the Concurrent List reads: "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; persons subjected to such detention." Note that the entry says "a State", meaning a constituent State of the Union, whereas Entry 9 of the Union List says "the security of India". The difference is the reason why some detention statutes are Union statutes and others are State statutes: see [Where the Power Comes From: Entry 9 of List I and Entry 3 of List III].

Section 3 of the National Security Act 1980 uses the security of India and the security of the State as two of its six grounds of detention.

Article 22(3)(a) speaks of an enemy alien, which is the wartime face of the same interest.

A worked example

Three sets of facts, one question: which of them engages the security of the State?

A. A speaker at a public meeting in Nagpur calls the Chief Minister corrupt and demands his resignation, in intemperate language. Crowds gather and the meeting becomes noisy.

Not the security of the State. On Kedar Nath this is disapprobation of the acts of Government, however strongly worded, and it excites no inclination to violence against the State. Whether it engages public order at all depends on the reach of the disturbance, on which see [Law and Order, Public Order and Security of the State: The Three Concentric Circles].

B. The same speaker urges the crowd to arm themselves and seize the district collectorate by force, and weapons are found at the venue.

The security of the State is engaged. This carries the tendency to violence against the Government established by law that Kedar Nath requires.

C. A newspaper publishes an accurate report that a bridge on the border is structurally weak. The Government says publication will assist a foreign adversary.

This is the hard case, and the answer is that the ground may be available but the material must show it. The interest asserted is the security of the State; whether it is genuine turns on whether the information is in truth of use to an adversary, and the answer must apply the four step plan in [National Security: What the Phrase Means in Law].

Distinctions

What it does NOT mean

It does not mean the security of the Government of the day. The State is not the Ministry. Criticism, however severe, of the persons in office is not an attack on the State, and Kedar Nath says so in terms.

It is not established by the seriousness of the offence. A murder is a grave crime and ordinarily engages nothing beyond law and order. Gravity to the victim and gravity to the State are different measures.

It is not confined to the article 19(2) context. The expression does the same work in detention law and in the law of official secrecy, and MU's question asks for the concept rather than for one of its applications.

Quick revision

• Security of the State: the safety of the State as an organised political entity, endangered by war, insurrection, armed rebellion, espionage and violent subversion.
• Narrower than public order, and narrower than national security.
• Article 19(2): a separate head from public order; restriction must be reasonable; the phrase is "in the interests of".
• Romesh Thappar, AIR 1950 SC 124, and Brij Bhushan, AIR 1950 SC 129, both 26 May 1950: a public order statute is not saved by the security of the State head. Result: the First Amendment 1951 added public order to article 19(2).
• Kedar Nath Singh, AIR 1962 SC 955: sedition valid only if confined to an intention or tendency to incite violence or create public disorder; strong criticism is not sedition.
• List III Entry 3 says "the security of a State"; List I Entry 9 says "the security of India". The difference decides which legislature may act.

Test yourself

1. Define the security of the State in one sentence fit for an exam. The safety of the State as an organised political entity against activities endangering its very existence, such as waging war against the State, insurrection, armed rebellion, espionage and violent subversion.

2. Why did Parliament amend article 19(2) in 1951? Because Romesh Thappar and Brij Bhushan had held that a law restricting speech in the interests of public safety or public order was not saved by the only relevant head then available, which was the security of the State. The First Amendment added public order and other heads.

3. A speaker says the Government is corrupt and should be thrown out at the next election, in violent language. Is the security of the State engaged? No. On Kedar Nath Singh that is disapprobation of Government measures directed at change by lawful means, and it lacks the tendency to violence that the offence requires.

4. Which is wider, public order or the security of the State, and where does the Constitution itself show the answer? Public order is wider. Article 19(2) lists both separately, which shows they are different, and the Romesh Thappar line of reasoning shows that public disorder embraces matters far short of endangering the State.

5. Give the two Seventh Schedule entries in which the expression appears, and the difference between them. Entry 9 of the Union List, preventive detention for reasons connected with defence, foreign affairs or the security of India; and Entry 3 of the Concurrent List, 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.

Entry 2 of the State List reads: "Police (including railway and village police) subject to the provisions of entry 2A of List I."

Entry 3 of the Concurrent List authorises 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.

Notice what that adds up to. Public order is a State subject for ordinary policing, and a concurrent subject for preventive detention. That is the constitutional reason a State may have its own detention Act while the Union has the National Security Act, and it is examined in [Where the Power Comes From: Entry 9 of List I and Entry 3 of List III].

The judicial definition

The definition every answer should give comes from Arun Ghosh v. State of West Bengal, AIR 1970 SC 1228, in Hidayatullah C.J.'s own words: public order is the even tempo of the life of the community taking the country as a whole or even a specified locality.

Three features of that definition are worth drawing out.

It is about the community, not about the victim. An act may be dreadful for the person it is done to and leave the community's tempo untouched.

It is local. The definition allows the community to be a locality. An act may disturb the public order of a small town without troubling the State.

It is about effect, not about gravity. The same act may or may not disturb public order depending on where and when it is done. Hidayatullah C.J. put it as a contrast between quality and potentiality: an act by itself is not determinant of its own gravity, and in its quality it may not differ from another, but in its potentiality it may be very different.

The two cases that supply it

In Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, the distinction was first drawn.

Facts. Rule 30(1)(b) of the Defence of India Rules 1962 let a State Government detain a person to prevent him acting prejudicially to public safety and the maintenance of public order. A District Magistrate in Bihar detained Dr. Ram Manohar Lohia, but the order as made recited satisfaction about the maintenance of law and order, although his own earlier note had used the words public order. A Presidential order under article 359(1) had suspended the right to move any court to enforce articles 21 and 22.

Held. The petition was maintainable in spite of the Presidential order, because that order bars a claim to enforce the suspended rights and does not bar a complaint that the authority acted outside the Act and the Rules altogether or in bad faith. On the merits the detention was bad: law and order and public order are not the same, and an order made on satisfaction about law and order is not an order the rule authorises. Public order embraces more of the community than law and order does.

Why it matters here. It establishes that the two expressions are legally distinct, and it does so on facts where the only difference was two words in the recital of an order. That is how exacting the distinction is.

In Arun Ghosh v. State of West Bengal, AIR 1970 SC 1228, the distinction was applied.

Facts. The District Magistrate of Malda detained Arun Ghosh under section 3(2) of the Preventive Detention Act to prevent him acting prejudicially to the maintenance of public order. The grounds listed eight incidents over about three years: teasing a young woman and assaulting her father when he protested; wrongfully restraining and assaulting one Deepak Kumar Ray with lathis and rods; attempting to assault the same man in hospital; threatening one Phanindra C. Das that he would insult his daughter publicly; embracing that man's daughter and throwing white powder on her face; obscenely teasing and beating her sister with chappals; teasing her again; and threatening Phanindra C. Das's life.

Held. The detention was quashed and Ghosh was ordered released. Public order is the even tempo of the life of the community. The question in every case is whether the act leads to a disturbance of the current of life of the community, or affects merely an individual leaving the tranquillity of society undisturbed. Here all the acts of molestation were directed against one family and the assaults were on individuals; however reprehensible the conduct, it did not amount to an apprehension of a breach of public order.

Why it matters here. It supplies the phrase, and it shows that eight separate criminal incidents over three years can still fall short. A student who remembers only that public order means serious crime will get this case backwards.

A worked example

Two sets of facts, drawn from Hidayatullah C.J.'s own illustrations in Arun Ghosh, put next to each other.

A. A guest in a hotel in Panvel makes unwanted advances to half a dozen chambermaids over a week. He annoys them and he annoys the management. He has a scuffle with the friends of one of them.

This is a breach of law and order. It is a matter for prosecution. The community's tempo is unaffected: nobody else in Panvel changes what they do.

B. A man molests women in lonely places on the road between two villages. As a result, girls going to school and women going about their business are in constant fear of being waylaid.

This disturbs public order. The acts are of the same quality as in A. Their potentiality is entirely different, because the community has changed its behaviour. Women no longer go out alone. That is the even tempo of the life of the community being disturbed.

The pair is the single most useful illustration in the whole paper, because it shows that the classification does not follow from the label on the offence.

What it does NOT mean

It does not mean any breach of the peace. A breach of the peace is a law and order matter unless its reach extends to the community. The next chapter draws the line.

It does not mean the same as the security of the State. It is wider. The Constitution lists them separately in article 19(2), and it does so because Romesh Thappar held the security of the State could not carry the weight of a public order statute.

It is not a question of how many offences there are. Eight incidents were not enough in Arun Ghosh, and one communal stabbing can be enough. The measure is reach, not count.

It is not fixed by the offence charged. The same section of the penal law may produce a law and order case in one place and a public order case in another. The Court said so: the question has to be faced in every case on facts and there is no formula by which one case can be distinguished from another.

Limits and criticism

The test is honest about being a question of degree, and that is also its weakness. The Court itself said there is no formula. That leaves a detaining authority with room to characterise, and it leaves a High Court with room to differ. The modern preventive detention decisions are full of orders quashed because the State called a law and order problem a public order problem, which shows both that the line is real and that it is regularly crossed.

The State List placement has a practical consequence students miss. Because public order and the police are State subjects, the quality of public order administration varies across the country, and the preventive detention Acts a student will actually encounter in Maharashtra are State Acts.

Quick revision

• Public order: the even tempo of the life of the community, taking the country as a whole or even a specified locality. Arun Ghosh v. State of West Bengal, AIR 1970 SC 1228.
• It was not in article 19(2) as enacted. The First Amendment 1951 put it there, after Romesh Thappar and Brij Bhushan.
• Constitutional homes: article 19(2), (3) and (4); List II Entry 1, with the armed forces exclusion; List II Entry 2, police; List III Entry 3, preventive detention.
• Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740: law and order and public order are different, and a recital of the wrong one is fatal.
• Arun Ghosh: eight incidents against one family were not a disturbance of public order; the chambermaid and lonely road illustrations show quality against potentiality.
• The test is reach and degree, decided on facts, with no formula.

Test yourself

1. Give the definition of public order in the words the Supreme Court used. The even tempo of the life of the community taking the country as a whole or even a specified locality.

2. Public order is in which List of the Seventh Schedule, and what does the entry exclude? Entry 1 of the State List, excluding the use of any naval, military or air force or any other armed force of the Union, or any contingent or unit of it, in aid of the civil power.

3. Why is the First Amendment relevant to a question on public order? Because public order was not among the grounds in article 19(2) as enacted, and it was added by the First Amendment in 1951 after Romesh Thappar and Brij Bhushan struck down public safety statutes that could not be brought within the security of the State.

4. Eight incidents of assault and molestation over three years, all against one family. Public order or law and order? Law and order, on Arun Ghosh, because the acts were directed against individuals and did not disturb the current of life of the community.

5. Why can the same act be a public order matter in one place and not in another? Because the test is the reach and effect of the act upon the community, not the intrinsic gravity of the act. Hidayatullah C.J. put it as the difference between the quality of an act and its potentiality.

Four working propositions follow from it.

1. The measure is reach, not gravity. A murder in a private quarrel is graver than a scuffle at a communal procession and may sit in a smaller circle.
2. Quality is not potentiality. Two acts identical in what they consist of may differ entirely in what they do to the locality.
3. Number does not decide. Eight incidents were not enough in Arun Ghosh; one incident in a town with communal tension can be enough.
4. There is no formula. The Court said so in terms: the question has to be faced in every case on facts.

The two illustrations to give in an answer

Hidayatullah C.J. gave two pairs, and they are the best short answer to the question there is.

The first pair. A man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. Now take a town where there is communal tension, and a man stabs a member of the other community. The implications are deeper: it affects the even tempo of life, because the repercussions embrace large sections of the community and incite them to further breaches of the law.

The second pair. A guest at a hotel may kiss or make advances to half a dozen chambermaids; he annoys them and the management, and may even have a fracas with the friends of one of the girls, but it is a breach of law and order only. A man who molests women in lonely places is doing something not different in essential quality, but girls going to colleges and schools are then in constant danger and fear, and women going about their business are afraid of being waylaid. He disturbs the society and the community.

A worked example

The District Magistrate of Solapur proposes to detain Ganesh under section 3(2) of the National Security Act 1980 on the ground that he is acting in a manner prejudicial to the maintenance of public order. The grounds served on him are these.

1. On 4 January he assaulted his business rival Salim outside Salim's shop after an argument about a debt.
2. On 19 February he assaulted Salim's brother in the same street.
3. On 3 March he stood outside Salim's shop shouting that no Muslim trader would be allowed to do business in that market, a crowd of about two hundred gathered, shops in the market closed for the rest of the day, and traders of both communities kept their shops shut for the following two days.

Ground 1. A private assault arising from a debt. Law and order. It affects Salim; the market opens as usual the next morning.

Ground 2. The same. A second individual, the same quarrel.

Ground 3. Different in kind. The words were addressed to a community, a crowd gathered, and the behaviour of the whole market changed for three days. On the Arun Ghosh test, the current of life of the community was disturbed. This is public order.

What follows. The order can be supported, but only on ground 3. That matters, because a detention order founded partly on grounds that do not sustain it is vulnerable: the rule on irrelevant grounds is worked in [The Grounds of Detention: Vague, Irrelevant and Stale]. And nothing here approaches the security of the State: nobody is waging war or attempting to subvert the Government.

That is the shape of a full answer to a problem question in this paper: classify each ground separately, say which circle it falls in, and then say what follows for the order.

Distinctions

What it does NOT mean

The circles are not three separate boxes. They are nested. An answer that says an act is either a law and order matter or a public order matter has misdrawn the diagram: a public order matter is also a law and order matter.

A serious offence is not automatically a public order matter. This is the mistake most often made in exam answers and most often made by detaining authorities. Gravity to the victim is not reach into the community.

The classification is not the end of the enquiry. Even where the facts genuinely reach public order, a detention order must still satisfy everything in [The Safeguards Gathered, and the Safeguards Against Misuse]. Correct classification is necessary and not sufficient.

The test is not confined to detention law. It decides article 19(2) questions as well, which is where it began.

Limits and criticism

The absence of a formula is deliberate and it has a cost. A test of degree gives a High Court the flexibility to do justice on facts and gives a detaining authority room to characterise. The reported cases show both.

The modern decisions apply it with more scepticism than the old ones. The direction of travel over the last fifteen years has been to insist that a State which cannot show reach into the community must prosecute rather than detain, and that ordinary criminal law is the normal course. That line of authority is gathered in [The Recent Judicial Trend on Preventive Detention].

Quick revision

• Three concentric circles: law and order is widest, public order inside it, security of the State at the centre. Hidayatullah J. in Ram Manohar Lohia, AIR 1966 SC 740.
• The question: does the act disturb the current of life of the community, or affect merely an individual leaving the tranquillity of society undisturbed? Arun Ghosh, AIR 1970 SC 1228.
• Reach, not gravity. Potentiality, not quality. Number does not decide. No formula.
• The stabbing pair and the chambermaid pair are the illustrations to give.
• Classify each ground separately in a problem, then say what follows for the order.

Test yourself

1. Draw the three circles and say which is widest. Law and order is the widest; public order sits inside it; the security of the State is the innermost.

2. State the Arun Ghosh question in one sentence. Does the act lead to a disturbance of the current of life of the community so as to amount to a disturbance of public order, or does it affect merely an individual leaving the tranquillity of society undisturbed?

3. A man is murdered in a village over a land dispute. The village is calm the next day. Which circle? Law and order. The act is grave but its reach does not extend beyond the parties.

4. Why did the detention in Ram Manohar Lohia fail? Because the order recited satisfaction about the maintenance of law and order while the rule authorised detention only to prevent acts prejudicial to public order, and the two are not the same.

5. A detention order rests on three grounds, of which only one discloses a disturbance of public order. What is the consequence? The classification issue is only the first step: the order is then vulnerable on the separate rule about grounds that are irrelevant or do not sustain the order, which is taken up in [The Grounds of Detention: Vague, Irrelevant and Stale].

Article 248. Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or the State List, which is the residuary power, and Entry 97 of List I is its counterpart in the Schedule.

Why these three matter in this paper. Because the two decisions that uphold exceptional legislation rest on them. Kartar Singh v. State of Punjab, (1994) 3 SCC 569, held TADA to be within article 248 read with Entry 97 of List I, and possibly within Entry 1 of List I, precisely because it was not a law on public order under Entry 1 of List II. And article 245's opening words, subject to the provisions of this Constitution, are what make a competent law still answerable to Part III: competence and validity are two questions, and an answer that runs them together has lost half the marks.

The entries, in the Constitution's own words

Union List, Entry 1. Defence of India and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination to effective demobilisation.

Union List, Entry 2. Naval, military and air forces; any other armed forces of the Union.

Union List, Entry 2A. Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment.

Union List, Entry 9. Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India; persons subjected to such detention.

State List, Entry 1. Public order (but not including the use of any naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof in aid of the civil power).

State List, Entry 2. Police (including railway and village police) subject to the provisions of entry 2A of List I.

Concurrent List, Entry 3. 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; persons subjected to such detention.

Concurrent List, Entry 4. Removal from one State to another State of prisoners, accused persons and persons subjected to preventive detention for reasons specified in entry 3 of this List.

How to read the two detention entries together

The two entries do not overlap. They divide the field by the reason for the detention, not by the person detained and not by the place.

Compare that table with section 3 of the National Security Act 1980, which lists six grounds. It is a Union Act, so it may use all six: three from Entry 9 and three from Entry 3. A State Act may use only the three in Entry 3.

Article 250 and the emergency exception

While a proclamation of emergency under article 352 is in operation, article 250 empowers Parliament to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List. A law so made ceases to have effect on the expiration of six months after the proclamation ceases to operate, except as to things done or omitted before that.

That is the point at which this chapter meets Module II. During a proclamation the distribution above is suspended in effect: Parliament may legislate about public order and the police directly, and does not need to rely on Entry 3 at all. It is worked in [What a Proclamation Switches On].

Repugnancy: the trap in a concurrent subject

Because Entry 3 is concurrent, both legislatures may occupy it, and article 254 decides what happens when they collide. If a State law is repugnant to a Union law on the same concurrent matter, the Union law prevails and the State law is void to the extent of the repugnancy, unless the State law was reserved for and received the President's assent, in which case it prevails in that State.

The practical consequence for a student answering a problem is a two step check: first, is the reason for the detention one that the legislature which made this Act may use? Second, if it is a State Act on the concurrent field, is there a Union law it contradicts, and did it receive Presidential assent?

A worked example

The Legislature of a State passes an Act allowing the detention of a person for up to a year to prevent him acting in a manner prejudicial to the defence of India.

Step one: which entry? Defence of India is Entry 9 of the Union List. It is exclusive to Parliament.

Step two: is the State competent? No. Entry 3 of the Concurrent List gives a State the security of a State, public order and essential supplies and services, and nothing else. Defence of India is not among them.

Result. The Act is beyond the competence of the State Legislature to that extent, and no question of repugnancy arises: an incompetent legislature does not reach article 254 at all.

Change the facts. The same State Act instead allows detention to prevent acts prejudicial to the maintenance of supplies and services essential to the community, and Parliament's National Security Act covers the same ground.

Step one: the ground is within Entry 3, so the State is competent.

Step two: both Acts are on a concurrent matter, so article 254 applies. If the two are repugnant, the State Act is void to the extent of the repugnancy unless it was reserved for the President's consideration and received his assent.

What it does NOT mean

It does not mean a State cannot detain for reasons of security at all. It can, for the security of a State. What it cannot do is legislate for the security of India.

It does not mean the Union cannot legislate about public order. Entry 3 is concurrent, and Parliament has used it: the National Security Act's public order ground rests on it.

Entry 1 of the State List does not stop the Union's forces being used. It excludes their use from the State's own legislative field, and Entry 2A of the Union List then confers that field on the Union. The result is that the Union legislates for what its forces may do in a State; it is not that nobody may.

Quick revision

• List II Entry 1: public order, excluding the use of the Union's armed forces in aid of the civil power. Entry 2: police, subject to Entry 2A of List I.
• List I Entries 1, 2 and 2A: defence, the armed forces, and their deployment in a State in aid of the civil power. Entry 2A is the base of AFSPA.
• List I Entry 9: preventive detention for defence, foreign affairs or the security of India. Exclusive to Parliament.
• List III Entry 3: preventive detention for the security of a State, public order, or essential supplies and services. Concurrent.
• The division is by the REASON for detaining.
• Article 250: during a proclamation of emergency Parliament may legislate on State List matters, and such a law lapses six months after the proclamation ends.
• Article 254: on a concurrent matter the Union law prevails, unless the State law received the President's assent.

Test yourself

1. A State passes a preventive detention Act to prevent acts prejudicial to the relations of India with foreign powers. Valid? No. That ground falls under Entry 9 of the Union List, which is exclusive to Parliament, and it is not within Entry 3 of the Concurrent List.

2. Which entry is the constitutional foundation of the Armed Forces (Special Powers) Act 1958? Entry 2A of the Union List: deployment of any armed force of the Union in any State in aid of the civil power, and the powers, jurisdiction, privileges and liabilities of its members while so deployed.

3. Why can both the Union and Maharashtra have preventive detention Acts covering public order? Because preventive detention for reasons connected with the maintenance of public order is Entry 3 of the Concurrent List, over which both legislatures are competent.

4. What happens to a Parliamentary law made on a State List subject under article 250 when the proclamation of emergency ends? It ceases to have effect on the expiration of six months after the proclamation ceases to operate, except as to things done or omitted to be done before that.

5. Section 3 of the National Security Act uses six grounds. Which three could a State Act not use? The defence of India, the relations of India with foreign powers, and the security of India, all of which fall under Entry 9 of the Union List.

Notice what these sections are. They are preventive detention's judicial cousin: they act on a prediction about future conduct, exactly as a detention order does, but the decision is a Magistrate's, made after notice and a hearing, and the sanction is a bond. An answer that contrasts them with the National Security Act has the strongest available criticism of executive detention.

2. Dispersal of assemblies: sections 148 to 151

Section 148. Any Executive Magistrate, or the officer in charge of a police station, or in his absence any police officer not below the rank of sub-inspector, may command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse, and the members are then bound to disperse. If they do not, or if without being commanded they show a determination not to disperse, the assembly may be dispersed by force, and any person other than a member of the armed forces may be required to assist.

Section 149. If such an assembly cannot otherwise be dispersed and it is necessary for the public security that it should be, the District Magistrate or an Executive Magistrate authorised by him who is present may cause it to be dispersed by the armed forces, and may require an officer in command to do so and to arrest and confine those forming part of it.

Section 149(3) contains the sentence that matters most in a paper about the rule of law. Every such officer of the armed forces shall obey the requisition in such manner as he thinks fit, but in so doing he shall use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly. That is proportionality written into the ordinary criminal procedure, and it is the standard against which the powers in [The Armed Forces (Special Powers) Act 1958] should be measured.

Section 150. Where the public security is manifestly endangered and no Executive Magistrate can be communicated with, a commissioned or gazetted officer of the armed forces may disperse the assembly himself, but must communicate with a Magistrate as soon as it becomes practicable and thereafter obey the Magistrate's instructions.

Section 151. Protection against prosecution: no prosecution for an act purporting to be done under sections 148, 149 or 150 may be instituted except with sanction. This is a milder ancestor of the immunity in section 6 of the Armed Forces (Special Powers) Act 1958, and the comparison is worth making.

3. Orders in urgent cases: section 163

This is the successor to section 144 of the repealed Code, and it is the most used and most litigated of all the powers in this chapter.

Section 163(1). Where in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government there is sufficient ground for proceeding and immediate prevention or speedy remedy is desirable, the Magistrate may by a written order stating the material facts of the case direct any person to abstain from a certain act or to take certain order with respect to property in his possession or management, if he considers that the direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray.

Section 163(2). In an emergency, or where the circumstances do not admit of serving notice in due time, the order may be passed ex parte.

Section 163(3). The order may be directed to a particular individual, to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.

Section 163(4). No order shall remain in force for more than two months, extendable by the State Government by notification for a further period not exceeding six months where it considers it necessary for preventing danger to human life, health or safety or for preventing a riot or affray.

Section 163(5) and (6). Any Magistrate may rescind or alter his own order or one made by a subordinate or a predecessor; and the State Government may rescind or alter an order made by it under the proviso to sub-section (4).

Section 163(7). On an application to rescind or alter, the Magistrate or the State Government must give the applicant an early opportunity of appearing, in person or by an advocate, and showing cause; and if the application is rejected wholly or in part, the reasons must be recorded in writing.

The nuisance and dispute powers, sections 152 to 167

The Sanhita's public order Chapter does not end at section 163, and a complete answer on the ordinary powers should be able to place the rest of it.

Sections 152 to 162: conditional orders for the removal of a nuisance. Section 152 empowers a District Magistrate, a Sub-divisional Magistrate or an authorised Executive Magistrate, on a police report or other information and after taking such evidence as he thinks fit, to make a conditional order requiring a person to remove an unlawful obstruction or nuisance from a public place, to desist from a trade or occupation or to remove goods injurious to health, to prevent or stop a construction or dispose of a substance likely to cause a conflagration or explosion, to fence a tank, well or excavation, or to destroy, confine or dispose of a dangerous animal. Section 153 provides for the service of that order, section 154 requires the person either to perform the act or to appear and show cause, and section 155 makes his failure to do either an offence and permits the order to be made absolute.

Sections 156 to 160 are the inquiry: where the person appears and shows cause the Magistrate takes evidence as in a summons case; section 158 permits a local investigation or the examination of an expert; section 159 governs the local investigation and the expert's costs; and section 160 provides for a notice requiring performance once the order is made absolute, with a penalty and the power to have the act done at the person's cost. Section 161 empowers the Magistrate, pending the inquiry, to issue an injunction where immediate measures are needed to prevent imminent danger or injury of a serious kind to the public, and to use his own means if the person fails. Section 162 permits a Magistrate to prohibit the repetition or continuance of a public nuisance.

Sections 164 to 167: disputes as to immovable property. Section 164 is the successor to the old section 145: where an Executive Magistrate is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning land or water, he makes a written order stating the grounds, requires the parties to attend and to put in written statements of their claims as to actual possession, and decides who was in possession, forbidding disturbance until eviction in due course of law. Section 165 empowers him to attach the subject of dispute where there is an emergency or he cannot decide who was in possession. Section 166 deals with disputes as to a right of use of land or water. Section 167 permits a local inquiry for the purposes of sections 164 to 166.

Why these belong in this paper. They are the ordinary preventive jurisdiction of a Magistrate over public order, exercised on a satisfaction and without a trial, and they are the model from which the exceptional statutes in Module II depart. Each of them is subject to a hearing before the order is made absolute, which is the feature the special statutes remove, and each is confined to a specific mischief rather than to a class of person.

What the Supreme Court has added to section 163

The directions in Anuradha Bhasin v. Union of India, AIR 2020 SC 1308, were given about section 144 of the repealed Code, and they apply unchanged to its successor because the language is materially the same.

Facts. After the constitutional changes of 5 August 2019 in Jammu and Kashmir, movement was restricted by orders under section 144 and mobile, internet and landline services were suspended. The Executive Editor of the Kashmir Times and a member of Parliament petitioned under article 32, complaining that a newspaper could not be published, that movement was impossible, and that the orders had not even been published.

Held. Fifteen directions were issued. On the section 144 power specifically: the power is remedial as well as preventive and may be exercised on an apprehension of danger and not only on a present danger, but the danger contemplated must be in the nature of an emergency; the power cannot be used to suppress the legitimate expression of opinion or grievance; the order must state the material facts so that it can be judicially reviewed and must show application of mind; the Magistrate is duty bound to balance rights and restrictions on the principle of proportionality and to apply the least intrusive measure; and repetitive orders would be an abuse of power. All orders under section 144, and all orders suspending telecom services, must be published so that affected persons can challenge them. On the internet specifically, the freedoms in articles 19(1)(a) and 19(1)(g) extend to the medium, an indefinite suspension is impermissible, and the Review Committee must review every seven working days.

Why it matters here. It is the answer to any question about how the rule of law bites on an executive order made for public order. Publication, reasons on material facts, proportionality, the least intrusive measure, a time limit and periodic review. A student can use those six words as a checklist against any power in this book.

4. Preventive action by the police: sections 168 to 173

Section 168 onwards allow a police officer to interpose to prevent the commission of a cognizable offence. Section 170(1) allows a police officer knowing of a design to commit a cognizable offence to arrest the person so designing, without a warrant and without an order from a Magistrate, if it appears that the commission of the offence cannot otherwise be prevented. Section 170(2) is the safeguard: no person so arrested shall be detained for more than twenty four hours unless his further detention is required or authorised under any other provision.

Section 170 is the closest thing in ordinary law to a preventive detention power, and the contrast is instructive: twenty four hours, on a specific design, and only where the offence cannot otherwise be prevented.

A worked example

A political party announces a march through a market area in Thane where communal tension has been reported. The District Magistrate is asked to act.

Option A, section 163. A written order stating the material facts, directed to the public generally when frequenting that area, prohibiting assembly of more than four persons for a stated period not exceeding two months. On Anuradha Bhasin, the order must state the facts, must show application of mind, must be proportionate and the least intrusive measure, and must be published so it can be challenged.

Option B, section 126. If the concern is one named individual with a record of inflammatory speeches, proceedings requiring him to show cause why he should not execute a bond for keeping the peace for up to a year, with notice and a hearing before a Magistrate.

Option C, sections 148 and 149. If the march takes place and turns violent, dispersal by command and then by force, and only if that fails, dispersal by the armed forces with the section 149(3) limit on the force used.

Option D, the National Security Act 1980. Detention of the organiser for three months without charge.

D is available only if A, B and C will not answer the case. That is not sentiment; it is the necessity requirement built into every detention statute, and it is why this chapter comes before Module I's detention chapters.

Distinctions

What it does NOT mean

Section 163 is not a power to ban criticism. Anuradha Bhasin says in terms that it cannot be used to suppress the legitimate expression of opinion or grievance.

It is not a standing power. Two months is the outer limit of a Magistrate's order, extendable only by the State Government by notification and only on the grounds stated, and repetitive orders are an abuse.

A dispersal order is not a licence to use any force. Section 149(3) requires as little force and as little injury as is consistent with dispersing the assembly.

These powers do not disappear when a special statute exists. A State that has the National Security Act still has section 163 and section 126, and the availability of the milder power is an argument against the necessity of the harsher one.

Quick revision

• Security for keeping the peace: BNSS s.126, bond for up to one year, on a show cause notice before a Magistrate. Good behaviour: ss.127 and 129.
• Dispersal: s.148 by command and civil force; s.149 by the armed forces on a Magistrate's requisition, with s.149(3) requiring as little force as possible; s.150 where no Magistrate can be reached; s.151 sanction before prosecution.
• Section 163, formerly section 144 of the repealed Code: written order stating material facts, may be ex parte, may be addressed to the public generally, two months, extendable by the State Government to a further six, rescindable on application with a hearing and recorded reasons.
• Anuradha Bhasin v. Union of India, AIR 2020 SC 1308: publish the order, state material facts, show application of mind, proportionality, least intrusive measure, no repetitive orders; internet suspension temporary only, with review every seven working days.
• Police preventive arrest: s.170, on a design to commit a cognizable offence that cannot otherwise be prevented, twenty four hours only.

Test yourself

1. What is the new number of section 144 of the Code of Criminal Procedure, and why does it matter in this paper? Section 163 of the Bharatiya Nagarik Suraksha Sanhita 2023. It matters because MU's 17 August 2024 circular puts this paper on the new criminal laws, so an answer written in the old numbering is describing a repealed Code.

2. How long may a section 163 order remain in force? Two months from the making of it, extendable by the State Government by notification for a further period not exceeding six months, and only for preventing danger to human life, health or safety or preventing a riot or affray.

3. Give three of the Anuradha Bhasin requirements for an order restricting freedoms on a public order ground. Any three of: publication of the order; a statement of the material facts showing application of mind; proportionality; the least intrusive measure; no repetitive orders; a time limit with periodic review.

4. What limit does the Sanhita place on the force used by the armed forces dispersing an assembly? Section 149(3): the officer shall use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly and arresting and detaining such persons.

5. Why does a chapter on ordinary powers belong in a paper about extraordinary ones? Because necessity is an element of every extraordinary power, and necessity cannot be assessed without knowing what the ordinary law already permits.

The Explanation is important and often forgotten: an assembly which was not unlawful when it assembled may subsequently become an unlawful assembly. A lawful procession can turn into an unlawful assembly without anybody arriving or leaving.

The offences in the same section. Being a member of an unlawful assembly knowing the facts that make it one, six months, fine, or both, by sub-section (2). Joining or continuing after it has been lawfully commanded to disperse, two years, by sub-section (3). Being a member while armed with a deadly weapon, two years, by sub-section (4). Knowingly joining or continuing in any assembly of five or more likely to cause a disturbance of the public peace after it has been lawfully commanded to disperse, six months, by sub-section (5). Hiring or employing persons to join an unlawful assembly, punishable as a member, by sub-section (6). Harbouring such persons, six months, by sub-section (7). Being engaged or hired, six months, by sub-section (8), and going armed when so hired, two years, by sub-section (9).

Sub-sections (3) and (5) are the criminal counterpart of section 148 of the procedural Sanhita. The Magistrate commands the assembly to disperse; if it does not, the members commit an offence at that moment.

Old numbering. Section 189 corresponds to sections 141, 142, 143, 144, 145, 150, 157 and 158 of the repealed Penal Code, consolidated into one section.

Section 190: constructive liability

If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence is a member of the same assembly is guilty of that offence.

This is the provision that makes a crowd offence work, and it is the reason a person who threw no stone can be convicted of the offence the crowd committed. It corresponds to section 149 of the repealed Code, and its two limbs, the common object and what the members knew to be likely, are unchanged.

Section 191: rioting

Whenever force or violence is used by an unlawful assembly, or by any member of it, in prosecution of the common object of the assembly, every member of that assembly is guilty of the offence of rioting.

The distinction between an unlawful assembly and a riot is therefore a single element: force or violence used in prosecution of the common object. Until that happens there is an unlawful assembly; from that moment there is a riot. Section 191 also provides an aggravated offence where the rioter is armed with a deadly weapon.

Old numbering. Sections 146, 147 and 148 of the repealed Code.

Sections 193 to 195

Section 193 places a liability on the owner or occupier of land on which an unlawful assembly or riot takes place, and on the person having an interest in it, in defined circumstances.

Section 194 is affray: when two or more persons, by fighting in a public place, disturb the public peace, they are said to commit an affray. The distinguishing features are that it is a fight, that it is in a public place, and that the public peace is disturbed. Two people are enough, where an unlawful assembly needs five.

Section 195 punishes assaulting or obstructing a public servant, or using criminal force on him, when suppressing a riot or an affray.

Section 196: promoting enmity between groups

This is the provision that does the most work in a communal disturbance, and it corresponds to section 153A of the repealed Code.

It punishes, in outline, promoting or attempting to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities; committing any act prejudicial to the maintenance of harmony between such groups which disturbs or is likely to disturb the public tranquillity; and organising or participating in any exercise with the intention that participants shall use or be trained to use criminal force against any such group. An aggravated offence is provided where the act is committed in a place of worship.

Section 197: imputations prejudicial to national integration

Section 197(1) punishes a person who, by words spoken or written, by signs, by visible representations, through electronic communication or otherwise:

(a) makes or publishes any imputation that any class of persons cannot, by reason of being members of a religious, racial, language or regional group or caste or community, bear true faith and allegiance to the Constitution of India as by law established or uphold the sovereignty and integrity of India;

(b) asserts, counsels, advises, propagates or publishes that any class of persons shall, by reason of such membership, be denied or deprived of their rights as citizens of India;

(c) makes or publishes any assertion, counsel, plea or appeal concerning the obligation of any class of persons by reason of such membership, where it causes or is likely to cause disharmony or feelings of enmity or hatred or ill will between such members and other persons; or

(d) makes or publishes false or misleading information, jeopardising the sovereignty, unity and integrity or security of India.

The punishment is imprisonment up to three years, or fine, or both, and up to five years with fine where the offence is committed in a place of worship or in an assembly engaged in religious worship or ceremonies.

Clause (d) is new. The repealed section 153B of the Penal Code had clauses corresponding to (a), (b) and (c) but nothing corresponding to (d). The offence of publishing false or misleading information jeopardising the sovereignty, unity and integrity or security of India is an addition made by the Sanhita, and it is the single most examinable change in this chapter for a paper about national security and free speech. A student writing about the new criminal laws should notice that this is a speech offence framed by reference to the security of India, and that it therefore has to be read subject to article 19(2) and to the Kedar Nath line of construction in [Offences Against the State, and What Replaced Sedition].

A worked example

A crowd of about sixty gathers outside a municipal office in Kalyan to protest a demolition notice. Speeches are made. Someone shouts that people of one community are behind the demolitions and cannot be loyal to the country. The crowd then pushes past the barricade, and a group inside it throws stones, injuring a clerk.

When did it become an unlawful assembly? Not when it assembled: a protest is lawful. It became one when the common object turned to resisting the execution of a legal process, or to overawing a public servant in the exercise of his lawful power, under section 189(1)(a) or (b). The Explanation to section 189(1) covers exactly this.

Is it a riot? Yes, from the moment force or violence was used in prosecution of the common object, under section 191.

Who is liable for the injury to the clerk? On section 190, every person who was a member of the assembly at the time, if the offence was committed in prosecution of the common object or was such as the members knew to be likely.

What about the speech? Section 196 if it promoted enmity between groups or was prejudicial to the maintenance of harmony and likely to disturb the public tranquillity; section 197(1)(a) if it imputed that a class of persons cannot bear true faith and allegiance by reason of their community.

And the executive response? Command to disperse under section 148 of the procedural Sanhita, force if the command is disobeyed, and if the crowd cannot otherwise be dispersed and public security requires it, the armed forces under section 149 with the least force consistent with dispersal.

Distinctions

What it does NOT mean

A large crowd is not an unlawful assembly. The common object must be one of the five in section 189(1). A peaceful demonstration of a thousand people is not within the section.

Rioting is not a separate assembly. It is the same assembly after force has been used.

Section 190 is not vicarious liability without limit. The offence must be committed in prosecution of the common object, or be such as the members knew to be likely to be committed in prosecution of that object.

These offences do not by themselves show a disturbance of public order in the constitutional sense. A riot ordinarily will, but the test is still reach into the community, and an affray between two men in a lane may be law and order only.

Quick revision

• Chapter XI of the BNS 2023, ss.189 to 197: offences against the public tranquillity, formerly Chapter VIII of the IPC.
• s.189: unlawful assembly, five or more, one of five common objects; a lawful assembly may become unlawful later; membership, continuing after a command to disperse, going armed, hiring and harbouring are all punished.
• s.190: every member liable for an offence committed in prosecution of the common object or known to be likely. Formerly s.149 IPC.
• s.191: rioting, force or violence used in prosecution of the common object.
• s.194: affray, two or more fighting in a public place and disturbing the public peace.
• s.196: promoting enmity between groups, formerly s.153A.
• s.197: imputations prejudicial to national integration, formerly s.153B, with a NEW clause (d) on false or misleading information jeopardising the sovereignty, unity and integrity or security of India.

Test yourself

1. When does an unlawful assembly become a riot? When force or violence is used by the assembly or by any member of it in prosecution of the common object. Section 191.

2. Can an assembly that was lawful when it gathered become unlawful? Yes. The Explanation to section 189(1) says so in terms.

3. What is new in section 197 compared with the repealed section 153B? Clause (d), which punishes making or publishing false or misleading information jeopardising the sovereignty, unity and integrity or security of India.

4. A man who threw no stone stands in a rioting crowd. Is he guilty of the injury caused? He may be, under section 190, if the offence was committed in prosecution of the common object of the assembly of which he was then a member, or was such as the members knew to be likely to be committed in prosecution of that object.

5. How many people are needed for an affray, and where must it happen? Two or more, fighting in a public place, and the public peace must be disturbed.

Section 151. Assaulting the President or a Governor with intent to compel or restrain the exercise of any lawful power. Up to seven years and fine.

Section 152. Act endangering sovereignty, unity and integrity of India. Set out in full below.

Sections 153 to 158. Waging war against the Government of any foreign State at peace with the Government of India; committing depredation on the territories of such a State; receiving property taken in the course of such war or depredation; a public servant voluntarily allowing a State prisoner or prisoner of war to escape; the same negligently; and knowingly aiding or assisting the escape or rescue of a State prisoner or prisoner of war.

Section 152 in full

"Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years, and shall also be liable to fine."

"Explanation. Comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section do not constitute an offence under this section."

What changed, and what did not

This is the comparison an examiner is looking for, and it should be given as a list rather than as an impression.

The target changed. Section 124A of the repealed Code punished bringing or attempting to bring into hatred or contempt, or exciting or attempting to excite disaffection towards, the Government established by law in India. Section 152 does not mention the Government at all in its operative part. Its targets are secession, armed rebellion, subversive activities, feelings of separatist activities, and the sovereignty or unity and integrity of India.

That is the single most important sentence in this chapter. Disaffection towards the Government is no longer the gravamen of the offence. What is punished is action against the integrity of the country.

The mental element is now express. Section 152 opens with "purposely or knowingly". Section 124A had no such opening words, and the requirement of intention had to be read in.

The means are wider. Section 152 names electronic communication and use of financial mean in addition to words, signs and visible representation. Section 124A named words, signs and visible representation only.

The punishment is different. Section 124A carried imprisonment for life or up to three years, with fine. Section 152 carries imprisonment for life or up to seven years, with fine. The lesser alternative is therefore considerably heavier.

The Kedar Nath gloss is now statutory. The Explanations to section 124A protected comments expressing disapprobation of the measures or the administrative action of Government with a view to obtaining their alteration by lawful means, and Kedar Nath made that protection the condition of the section's validity. Section 152's single Explanation carries the same protection forward in almost the same words, and adds the crucial qualification "without exciting or attempting to excite the activities referred to in this section".

The Official Secrets Act 1923

The other statute that punishes conduct against the State, and one MU's exceptional legislation topic reaches, is the Official Secrets Act 1923. It is short and an answer should be able to place its sixteen sections.

Sections 1 and 2. Short title, extent and application, and the definitions, including prohibited place, which is defined at length and covers defence establishments, arsenals, factories, dockyards and any place declared by the Government.

Section 3: penalties for spying. The offence is committed where a person, for any purpose prejudicial to the safety or interests of the State, approaches, inspects, passes over, is in the vicinity of or enters a prohibited place; makes a sketch, plan, model or note calculated to be or intended to be directly or indirectly useful to an enemy; or obtains, collects, records, publishes or communicates to any other person any secret official code or password or any such sketch, plan, article or information.

Section 4. Communications with a foreign agent are made evidence of the commission of certain offences, which is a presumption of the kind Module II examines.

Section 5: wrongful communication of information. The section most often used, and the one that reaches a public servant who parts with information he holds by virtue of his office, and the person who receives it.

Sections 6 to 10. Unauthorised use of uniforms, falsification of reports, forgery, personation and false documents; interfering with officers of the police or members of the Armed Forces; the duty of giving information as to the commission of an offence; attempts and incitements; and the penalty for harbouring spies.

Sections 11 to 15. Search warrants; the application of the approver provision of the old Code; the restriction of trial of offences, requiring the sanction of the appropriate Government; the exclusion of the public from proceedings on the application of the prosecution where publication would be prejudicial to the safety of the State; and offences by companies. Section 16 is repealed.

What to say about it in an answer. It is a pre-constitutional statute, continued by article 372, whose central concepts, prejudicial purpose, prohibited place and official secret, are undefined in the sense that matters, and whose section 5 has been criticised for reaching any official information rather than information whose disclosure endangers the State. Its section 14 is a statutory in camera trial of the kind [TADA 1987: The Scheme] shows in a modern statute, and its section 4 is a statutory presumption of the kind [The Reverse Burden and the Presumption of Innocence] examines.

The case that still governs the construction

Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, is worked in [Security of the State]. Its holding, that the offence is constitutional only if confined to acts having an intention or tendency to create disorder or disturbance of law and order or incitement to violence, and that strong words expressing disapprobation of Government measures with a view to their alteration by lawful means are outside it, is the reason section 124A survived for sixty two years.

Does it survive the repeal? The honest answer, and the one to give, is that its reasoning survives even though its subject does not.

1. The reasoning was constitutional, not merely interpretive. It held that a speech offence of this kind is a reasonable restriction under article 19(2) only if confined to incitement to violence or public disorder. That constraint binds any successor provision.
2. Section 152's own Explanation reproduces the protection Kedar Nath insisted on, which is a legislative acceptance of the point.
3. Section 152 is in any event drafted around secession, armed rebellion and subversive activities, which are on the violent side of the line Kedar Nath drew.

What cannot be said is that section 152 is section 124A renumbered. It is not, and an answer that treats them as identical will be wrong on the target of the offence, on the mental element, on the means and on the punishment.

The abeyance order, and why the sequence matters

Two decisions between Kedar Nath and the repeal are worth naming.

In Vinod Dua v. Union of India, AIR 2021 SC 3239, the Supreme Court quashed a first information report charging sedition against a journalist, applying Kedar Nath and holding that a journalist is entitled to the protection of that decision. The case is in the queue of this book's case bank and is worked in [National Security and the Freedom of Speech].

In 2022, while the constitutional validity of section 124A was under challenge before it, the Supreme Court directed that the provision be kept in abeyance and that no fresh case be registered under it pending the Union of India's re-examination of the offence. That order is the immediate background to the Sanhita. It is an interim order rather than a judgment on the merits, and this book does not cite it as an authority for any proposition of law.

The sequence to state in an answer: Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, in 1962, upholding but reading down; the abeyance order of 2022; the repeal of the Penal Code with effect from 1 July 2024; and section 152 of the Sanhita as the provision now in force.

A worked example

Four statements, made in Mumbai in 2026. Which of them is within section 152?

A. "This Government is corrupt and incompetent and should be voted out." Not within the section. It is comment on the measures and actions of Government with a view to alteration by lawful means, and the Explanation protects it. It would also have been outside section 124A on Kedar Nath.

B. "The people of this region should form their own country and should take up arms to do it." Within section 152: it excites secession and armed rebellion. It would also have been within section 124A.

C. "This State is treated unfairly by the Union and should be given greater autonomy under the Constitution." Not within the section. Advocacy of constitutional change by lawful means is not encouraging separatist activities, and the Explanation protects it.

D. A person transfers funds to an organisation whose object is armed secession. Within section 152 on its face, because the section names the use of financial mean as a mode of the offence. This is the clearest example of a case section 124A could not reach and section 152 can, and it also overlaps with the terrorist funding offences of the Unlawful Activities (Prevention) Act 1967 in [The UAPA: The Terrorist Act and the Terrorist Organisation].

Distinctions

What it does NOT mean

Sedition has not simply been renamed. The offence of exciting disaffection towards the Government no longer exists in Indian law in that form.

Section 152 is not confined to speech. It punishes a person who "indulges in or commits any such act", so conduct is within it as well.

Waging war does not require a battlefield. The illustration to section 147 is joining an insurrection.

These offences are not the only law protecting the State. The Unlawful Activities (Prevention) Act 1967 covers terrorist acts and unlawful associations; the Official Secrets Act 1923 covers spying and the wrongful communication of information.

Quick revision

• BNS Chapter VII, ss.147 to 158: offences against the State.
• s.147 waging war, death or life and fine. s.148 conspiracy. s.149 collecting arms. s.150 concealing a design. s.151 assaulting the President or a Governor.
• s.152: purposely or knowingly, by words, signs, visible representation, electronic communication or use of financial mean, exciting or attempting to excite secession, armed rebellion or subversive activities, or encouraging separatist feelings, or endangering sovereignty or unity and integrity of India. Life or up to seven years, and fine.
• s.152 Explanation protects comments expressing disapprobation of Government measures with a view to alteration by lawful means, provided they do not excite the activities the section names.
• Section 124A IPC is repealed from 1 July 2024. Section 152 is not the same offence.
• Kedar Nath Singh, AIR 1962 SC 955, still governs the constitutional constraint: a speech offence of this kind must be confined to incitement to violence or public disorder.

Test yourself

1. Is section 152 of the Sanhita the same offence as section 124A of the Penal Code? No. Section 124A punished exciting disaffection towards the Government established by law; section 152 punishes exciting secession, armed rebellion or subversive activities, encouraging separatist feelings, or endangering the sovereignty or unity and integrity of India.

2. Name two modes of committing the offence that section 152 has and section 124A did not. Electronic communication, and the use of financial mean.

3. Does Kedar Nath Singh still matter after the repeal? Yes. Its constitutional reasoning, that a speech offence of this kind is a reasonable restriction only if confined to incitement to violence or public disorder, binds any successor provision, and section 152's Explanation reproduces the protection it required.

4. What does the Explanation to section 152 protect, and what qualification does it carry? Comments expressing disapprobation of the measures or administrative or other action of Government with a view to obtaining their alteration by lawful means, provided they do not excite or attempt to excite the activities referred to in the section.

5. What is the maximum punishment under section 152? Imprisonment for life, or imprisonment which may extend to seven years, and in either case liability to fine.

Why it matters here. It is the clearest modern application of the closed list. Annoyance, inconvenience and insult are not grounds in article 19(2), so a section built on them cannot stand however real the underlying problem. And it shows the other half of the same coin: a blocking power that operates by reasoned order with a hearing, on grounds tied to article 19(2), survives.

2. The gravest ground is not available for the least grave facts: Romesh Thappar and Brij Bhushan

Both are worked in [Public Order] and [Security of the State]. Their contribution to this chapter is the proposition that a State cannot reach the security head by describing ordinary disorder in security language, and that the remedy for a genuinely missing ground is a constitutional amendment, not a wider reading.

3. Even where the ground is genuine, the machinery must be reviewable: Anuradha Bhasin

Anuradha Bhasin v. Union of India, AIR 2020 SC 1308.

Facts. After the constitutional changes of 5 August 2019 in Jammu and Kashmir, movement was restricted by orders under section 144 of the Code of Criminal Procedure 1973 and mobile, internet and landline services were suspended. The Executive Editor of the Kashmir Times and a member of Parliament petitioned under article 32, saying that a newspaper could not be published, that movement was impossible, and that the orders had not even been published so they could not be challenged.

Held. Fifteen directions were issued. Freedom of speech and expression and the freedom to practise any profession or carry on any trade, business or occupation over the medium of the internet enjoy constitutional protection under articles 19(1)(a) and 19(1)(g), and restrictions must be in consonance with articles 19(2) and 19(6) inclusive of the test of proportionality. All orders in force and any future orders under section 144 and for suspension of telecom services must be published to enable affected persons to challenge them. An order suspending internet services indefinitely is impermissible; suspension may be for a temporary duration only, must adhere to proportionality, must not extend beyond the necessary duration, and is subject to judicial review. Because the Suspension Rules provided for neither periodic review nor a time limit, the Review Committee was directed to review every seven working days. On section 144, the power is remedial as well as preventive and may be used on an apprehension of danger, but the danger must be in the nature of an emergency; it cannot be used to suppress legitimate expression of opinion or grievance; the order must state the material facts to enable judicial review and must show application of mind; the Magistrate must balance rights and restrictions on the principle of proportionality and apply the least intrusive measure; and repetitive orders are an abuse of power.

Why it matters here. It converts deference into a procedure. The Court did not decide whether the security assessment was right. It held that the assessment must be recorded, that the order must be published, that the measure must be the least intrusive one, and that it must be reviewed. That is the rule of law operating on a security power without second-guessing the security judgment, and it is the best single answer a student can give to the question whether courts can control national security decisions.

4. A security power exercised in secret still needs safeguards: PUCL on telephone tapping

People's Union for Civil Liberties v. Union of India (Telephone Tapping), AIR 1997 SC 568.

Facts. A report on the tapping of politicians' telephones led to a petition challenging the exercise of the power under section 5(2) of the Indian Telegraph Act 1885, which allows interception on the occurrence of a public emergency or in the interest of public safety, on specified grounds including the sovereignty and integrity of India, the security of the State, friendly relations with foreign States and public order. No rules had been framed under section 7(2)(b) although the power to make them had existed for over a century.

Held. Since the Act itself did not provide for prior judicial scrutiny, the Court could not create it, but until the Central Government framed a just, fair and reasonable procedure the right to privacy had to be safeguarded, so procedural safeguards were laid down. An order may be issued only by the Home Secretary of the Central Government or of a State Government, delegable in an urgent case to an officer not below the rank of Joint Secretary, with a copy to the Review Committee within one week. The matters to be considered must include whether the information could reasonably be acquired by other means. The order must specify the addresses or premises. The order ceases to have effect after two months unless renewed, and the total period may not exceed six months. Records must be kept of the intercepted communications, the extent of disclosure, the identity of those to whom it is disclosed, and the copies made. Use must be limited to the minimum necessary, and each copy destroyed as soon as retention is no longer necessary.

Why it matters here. It is the earliest sustained example of the technique Anuradha Bhasin later generalised: where the Court cannot control the substance of a security decision it controls its procedure. Note also the third direction, that the authority must consider whether the information could reasonably be acquired by other means. That is necessity, stated twenty three years before proportionality became the standard vocabulary.

Speech, sedition and the journalist

Vinod Dua v. Union of India, AIR 2021 SC 3239.

Facts. A first information report was registered in Himachal Pradesh against the journalist Vinod Dua in respect of a broadcast, alleging offences including sedition under section 124A and public mischief under section 505 of the Indian Penal Code. He petitioned under article 32 to quash the FIR, and additionally asked for a direction that no FIR be registered against a media person of at least ten years' standing unless cleared by a committee.

Held. The FIR was quashed. Every journalist is entitled to protection in terms of Kedar Nath Singh, and every prosecution under sections 124A and 505 must be in strict conformity with the scope and ambit of those sections as explained in, and completely in tune with, the law laid down in Kedar Nath Singh. The second prayer was rejected: constituting such a committee would be outside the statutory framework and would amount to encroachment upon the field reserved for the legislature.

Why it matters here. Two things, and both are examinable. First, it applies the Kedar Nath construction to a modern prosecution and shows that the construction is not a historical curiosity. Second, its refusal of the committee is a lesson about the limits of judicial protection: the Court will quash an individual FIR and will not build a screening mechanism, because that is legislation.

A worked example

A State Government directs a news website to take down a report on troop movements, and blocks the site, saying the report endangers national security. No written order is served and none is published.

Is the ground within article 19(2)? The security of the State, and possibly the sovereignty and integrity of India, are enumerated grounds. So far so good.

Is there a law? The direction must be traced to a statutory power. If none exists the direction is void on Dicey's first meaning and on Shreya Singhal's insistence that only unlawful acts relatable to article 19(2) may be reached.

Has the machinery been observed? On Shreya Singhal, a blocking order must be a reasoned order made after the safeguards, including a hearing. On Anuradha Bhasin, it must be published so that it can be challenged, must state the material facts, must be the least intrusive measure, and must be limited in time.

Result. The unpublished, unreasoned direction fails, not because a court has decided that the report was harmless, but because the State has not shown that it exercised a power the law gives it in the manner the law requires.

What it does NOT mean

It does not mean national security can never justify restricting speech. It plainly can. Article 19(2) says so.

It does not mean the courts assess the threat. They assess whether a power existed, whether the ground was one the Constitution allows, whether the measure was proportionate, and whether the decision can be reviewed.

Striking down a provision is not the same as approving the conduct. Shreya Singhal struck down section 66A while leaving the blocking power intact, and Vinod Dua quashed one FIR while refusing to create a general immunity for journalists.

Quick revision

• Article 19(2) is a closed list. A restriction not referable to a named ground is void.
• Widened twice, both times in response to decisions: First Amendment 1951 after Romesh Thappar and Brij Bhushan; Sixteenth Amendment 1963 adding the sovereignty and integrity of India.
• Shreya Singhal, AIR 2015 SC 1523: section 66A struck down entirely; section 69A and the 2009 Blocking Rules valid; section 79(3)(b) and Rule 3(4) read down to actual knowledge from a court order or a Government notification about acts relatable to article 19(2).
• Anuradha Bhasin, AIR 2020 SC 1308: publication, reasons on material facts, proportionality, least intrusive measure, time limit, periodic review; the internet is within articles 19(1)(a) and 19(1)(g).
• PUCL, AIR 1997 SC 568: interception safeguards, Home Secretary, Review Committee, two months renewable to six, records, minimum use, destruction of copies, and consideration whether the information could be got by other means.
• Vinod Dua, AIR 2021 SC 3239: every journalist entitled to the Kedar Nath protection; a screening committee for media persons refused as legislation.

Test yourself

1. Why was section 66A struck down when section 69A survived? Because section 66A rested on annoyance, inconvenience and insult, which are not grounds in article 19(2), while section 69A operates by reasoned order after procedural safeguards on grounds tied to article 19(2).

2. Give three of the interception safeguards laid down in PUCL. Any three of: the order may be made only by a Home Secretary, delegable in urgency to an officer not below Joint Secretary; a copy to the Review Committee within a week; the authority must consider whether the information could reasonably be acquired by other means; the order lapses after two months unless renewed and may not run beyond six; records must be kept; use limited to the minimum necessary; copies destroyed when retention is no longer necessary.

3. What did Anuradha Bhasin decide about publishing orders, and why does it matter to the rule of law? That all orders under section 144 and all telecom suspension orders must be published so that affected persons can challenge them. An unpublished order is unchallengeable, and a power that cannot be challenged is not subject to law.

4. What did Vinod Dua refuse to do, and on what ground? It refused to direct that no FIR be registered against a media person of ten years' standing without clearance by a committee, on the ground that this would be outside the statutory framework and would encroach on the field reserved for the legislature.

5. Which two amendments widened article 19(2), and what prompted each? The First Amendment 1951, prompted by Romesh Thappar and Brij Bhushan, and the Sixteenth Amendment 1963, which added the sovereignty and integrity of India.

Dicey contrasted this with the wide discretionary authority of a government that can imprison on suspicion. In his own words the rule of law in this sense is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary or discretionary powers of constraint.

This is the meaning that matters most in this paper, and it is worth pausing on. A preventive detention order breaches all three limbs at once. There is no distinct breach of law: the detenu has not been charged with an offence. It is not established in the ordinary legal manner: there is no evidence, no witness and no cross-examination. It is not before the ordinary courts: the detaining authority is an executive officer and the reviewing body is an Advisory Board. A student who can state that in an exam has understood both halves of the paper's title at once. Whether the Indian Constitution's own authorisation of such orders is a departure from the rule of law, or an exception within it, is the argument in [Exceptional Legislation and the Rule of Law: An Assessment].

Second meaning: equality before the law

No person is above the law; every person, whatever their rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.

Dicey's point was that in England a Secretary of State who commits a trespass is sued in the ordinary courts by the ordinary law of trespass, exactly as a private person would be. There is no special law and no special court for officials.

The classic illustration, and the one to give in an answer, is Entick v. Carrington. This book has not read an English report of it, so it is cited here as the Supreme Court of India itself cites it, in Tofan Singh v. State of Tamil Nadu, AIR 2020 SC 5592, which gives the reference as 95 ER 807.

Facts. King's messengers acting on a warrant issued by a Secretary of State entered John Entick's house and seized his papers. He sued them in trespass.

Held. As the Supreme Court records it, Lord Camden held that an illegal search warrant was subversive of all the comforts of society, and that the issue of such a warrant for the seizure of the whole of a man's papers, and not only those alleged to be criminal in nature, was contrary to the genius of the law of England.

Why it matters here. It is the purest example of Dicey's second meaning at work. The officers were servants of the Crown acting on the order of a Secretary of State, and they were answerable in the ordinary courts under the ordinary law of trespass because no law authorised what they did.

Third meaning: the constitution is the result of the ordinary law of the land

The general principles of the English constitution, and particularly the liberties of the subject, are the result of judicial decisions determining the rights of private persons in particular cases brought before the courts, rather than the consequence of a declaration of rights in a written constitution.

Dicey's claim was that English liberty is safer for being built up case by case, because a right that has been enforced in a hundred cases is harder to take away than a right written in a document that can be suspended.

What each meaning is worth today, and what it is not

This is where an LL.M. answer separates itself from an LL.B. one. Dicey must be stated and then examined.

The first meaning survives, and it is the core. Nobody now disputes that public power should rest on legal authority and that punishment should follow a proved breach of a known rule. Every modern formulation in [Rule of Law: The Modern Formulations] contains it.

The first meaning's hostility to all discretion does not survive. Dicey thought discretionary power was in itself the enemy. A modern State cannot function without it: a licensing authority, a planning authority, a detaining authority and a tax authority all exercise discretion. The modern answer is not to abolish discretion but to structure and confine it: powers conferred by clear statutory language, exercised for the purpose for which they were given, on relevant considerations, subject to reasons and to review. That is the whole subject of administrative law, and it is why this paper's sibling in Group I is called Administrative Process.

The second meaning is sound as a principle and was wrong as a description. Even in Dicey's England, officials had privileges and immunities that private persons did not. In India, article 361 gives the President and the Governors personal immunity from court process, section 197 of the repealed Code of Criminal Procedure and its successor require sanction before a public servant can be prosecuted for an act done in the discharge of official duty, and section 6 of the Armed Forces (Special Powers) Act 1958 requires the previous sanction of the Central Government before any prosecution of a person acting under that Act. Whether those are breaches of the second meaning or justified exceptions to it is a real question, and [The Armed Forces (Special Powers) Act 1958] takes it up.

The third meaning is the weakest and should be criticised. Dicey was contrasting judge-made liberty with written guarantees, and preferring the former. India took the opposite view deliberately and wrote a bill of rights, with article 32 as an enforceable remedy, precisely because the framers did not trust liberty to survive on judicial habit alone. Events proved the point in both directions: a written article 21 did not save the detenus in 1975, but a written article 359 as amended in 1978 now makes it impossible to suspend article 21 again. An answer that repeats Dicey's third meaning approvingly, without noticing that the Indian Constitution rejects it, has missed the examiner's point.

And the contrast with droit administratif was overdrawn. Dicey took the French system to mean that officials escaped legal control. Later scholarship, including the work of the French Conseil d'Etat itself, showed that French administrative law is often more searching than English judicial review, not less.

A worked example

Ravi runs a printing press in Nashik. The District Magistrate is told that Ravi has printed a pamphlet that will inflame communal feeling. Consider three responses and test each against Dicey's first meaning.

Response A. The Magistrate telephones the police and has the press locked up for a fortnight to be safe. No order, no statute named, no record. This fails every limb: no distinct breach of law, nothing established in any legal manner, no court. It is the paradigm of arbitrary power.

Response B. The Magistrate passes a written order under section 163 of the Bharatiya Nagarik Suraksha Sanhita 2023, reciting the material before him and the apprehension of danger, prohibiting distribution of the pamphlet for two months, and Ravi may move the High Court against it. This satisfies the first meaning in form: there is a legal power, exercised in the manner the law lays down, reviewable by a court. Whether it satisfies it in substance depends on whether the recital is genuine, which is the question examined in [Subjective Satisfaction, and How Far a Court May Examine It].

Response C. The State Government makes an order under section 3 of the National Security Act 1980 detaining Ravi for three months to prevent him from acting in a manner prejudicial to the maintenance of public order. There is a statute, there are grounds, there is a Board. But there is no offence, no charge, no trial and no ordinary court. This is the case where the Constitution itself has authorised a departure from Dicey's first meaning, and the whole of Module I is about how far that departure goes.

Distinctions

That table is the most useful thing in this chapter for an exam, and it is developed in [Rule by Law, and Why the Difference Decides This Paper].

What it does NOT mean

It does not mean that everything the government does must be authorised by an Act of Parliament. A power may come from the Constitution, from a statute, from subordinate legislation validly made, or in a narrow class of cases from the common law. What it may not come from is nothing at all.

It does not mean rule by judges. The rule of law requires an independent court to decide whether a power was exercised lawfully. It does not require the court to decide whether the power was exercised wisely.

It does not mean the law must be just. Dicey's formulation is procedural. A law can be harsh and still satisfy it. That is precisely why later writers added content, and it is why [Rule of Law: The Modern Formulations] exists.

It is not the same as the separation of powers. They are related and often argued together, but they are different propositions. The separation of powers is about which organ exercises which function; the rule of law is about whether any organ's exercise of power is bounded and answerable.

Quick revision

• Dicey, Introduction to the Study of the Law of the Constitution, 1885.
• Meaning one: no punishment except for a distinct breach of law, established in the ordinary manner, before the ordinary courts. Opposed to arbitrary and wide discretionary power.
• Meaning two: equality before the law; officials subject to the ordinary law and the ordinary courts. Entick v. Carrington, (1765) 19 State Trials 1029.
• Meaning three: the constitution is the product of ordinary judicial decisions, not of a written declaration of rights.
• Criticism: discretion is unavoidable and is now structured rather than abolished; officials do enjoy immunities; the third meaning is rejected by the Indian Constitution's own design.
• Preventive detention offends all three limbs of the first meaning, and the Constitution authorises it anyway. That tension is the paper.

Test yourself

1. State Dicey's first meaning in one sentence and say which limb a preventive detention order offends. No person may be punished except for a distinct breach of law established in the ordinary legal manner before the ordinary courts. A detention order offends all three limbs: there is no breach of law, nothing is established in the ordinary manner, and the decision is executive rather than judicial.

2. Why is Dicey's third meaning a poor fit for India? Because India deliberately adopted the opposite technique. It wrote a bill of rights in Part III and made the remedy for its breach a fundamental right in article 32, rather than leaving liberty to be built up case by case.

3. Give one Indian provision that is in tension with Dicey's second meaning. Section 6 of the Armed Forces (Special Powers) Act 1958, which requires the previous sanction of the Central Government before any prosecution of a person acting under that Act. Article 361 and the sanction requirement for prosecuting public servants are equally good answers.

4. Is a discretionary power necessarily contrary to the rule of law on the modern view? No. The modern position is that discretion is unavoidable in a functioning State, and that the rule of law requires it to be conferred in clear terms, exercised for its proper purpose on relevant considerations, and made answerable through reasons and judicial review.

5. What does Entick v. Carrington illustrate, and why is the quotation useful? That an official acting without legal authority is liable in the ordinary courts like any private person. Lord Camden's proposition, that if it is law it will be found in our books and if it is not to be found there it is not law, is the cleanest statement of the requirement of legal authority.

Raz's famous provocation is worth stating exactly because students garble it. He argued that the rule of law is one virtue among others, like the sharpness of a knife, and that a non-democratic legal system may in principle conform to it better than a democratic one. He did not say that such a system is good. His point was that conflating the rule of law with all political good makes the phrase useless as an analytical tool.

Note his last principle. The discretion of the crime-preventing agencies should not be allowed to pervert the law. That is a proposition about exactly the powers this paper studies, and it comes from the thinnest of the modern accounts.

The substantive conception: what the law must contain

The Delhi Declaration, 1959. The International Commission of Jurists held a Congress in New Delhi in 1959, attended by jurists from many countries, and its declaration is the formulation Indian courts and Indian writers most often quote. Its central proposition is that the rule of law is a dynamic concept which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which the individual's legitimate aspirations and dignity may be realised.

Three consequences follow and are worth listing in an answer.

1. The rule of law is not only a restraint on the State. It imposes positive obligations: to provide conditions in which people can live decently.
2. It has a social and economic content, which is why it fits the Indian Constitution's Part IV so naturally.
3. It is dynamic, meaning that its content grows as a society's capacity grows.

Lord Bingham, The Rule of Law (2010). Bingham, formerly Senior Law Lord in the United Kingdom, proposed eight principles, and they are the most usable modern checklist there is.

1. The law must be accessible and so far as possible intelligible, clear and predictable.
2. Questions of legal right and liability should ordinarily be resolved by application of the law and not by the exercise of discretion.
3. The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.
4. Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.
5. The law must afford adequate protection of fundamental human rights.
6. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.
7. Adjudicative procedures provided by the state should be fair.
8. The state must comply with its obligations in international law.

Principle five is the substantive claim, and Bingham defended it directly against Raz. Principle four is the whole of administrative law in one sentence, and it is the standard against which every discretionary power in this book should be tested.

A worked example: the two conceptions applied to this paper's subject matter

Take the National Security Act 1980 and ask what each conception says.

On the formal conception it does well. The Act is published, prospective and general. The grounds are stated. The procedure is laid down. The courts retain review powers, which is Raz's sixth principle, and the detenu can reach a court, which is his seventh.

On the formal conception it does badly in one specific way. Raz's last principle is that the discretion of the crime-preventing agencies should not be allowed to pervert the law. A power to imprison for three months on suspicion, exercised by the same executive that would otherwise have to prosecute, is exactly the discretion he had in mind.

On the substantive conception it does badly. Bingham's second principle is that questions of legal right and liability should ordinarily be resolved by the application of the law rather than by the exercise of discretion, and his seventh is that adjudicative procedures should be fair. A detention order resolves the most important question of liberty there is by discretion, and the Advisory Board's procedure excludes a lawyer.

That is a complete answer to MU's question about the rule of law and national security, and it can be written in three paragraphs.

Distinctions

What it does NOT mean

Raz was not defending dictatorship. He was distinguishing the rule of law from democracy and from justice, so that each can be assessed separately.

The Delhi Declaration is not a treaty. It is the statement of a Congress of jurists, and it binds nobody. Its authority is persuasive, and it is quoted so often in India because it matches the Constitution's own design.

Fuller's eight are failures, not commandments. His argument was that a system that fails badly enough on any of them ceases to be a legal system, which is a stronger claim than that it would be a bad one.

Adopting the substantive conception does not dissolve the formal one. Publicity, prospectivity and clarity remain necessary; the substantive account adds to them.

Quick revision

• Two families: formal or thin, and substantive or thick.
• Fuller, The Morality of Law 1964: eight ways to fail to make law, including retroactivity, obscurity, contradiction, constant change, and divergence between rules as announced and as administered.
• Raz 1977: prospective, open, clear, relatively stable law; particular laws guided by general rules; judicial independence; natural justice; review powers; accessible courts; and the discretion of crime-preventing agencies not to pervert the law. The rule of law is one virtue among others.
• Delhi Declaration 1959, International Commission of Jurists: a dynamic concept, safeguarding civil and political rights and establishing the social, economic, educational and cultural conditions for dignity.
• Bingham 2010, eight principles, of which the fifth is adequate protection of fundamental human rights and the fourth is that officials must act in good faith, fairly, for the proper purpose, within their powers and not unreasonably.
• Applied to the NSA: it satisfies the formal account except for Raz's last principle, and it fails the substantive account on Bingham's second and seventh.

Test yourself

1. State the Delhi Declaration's formulation in one sentence. The rule of law is a dynamic concept to be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish the social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realised.

2. Which of Raz's principles bears directly on preventive detention? The last: the discretion of the crime-preventing agencies should not be allowed to pervert the law.

3. What did Raz mean by comparing the rule of law to the sharpness of a knife? That it is one virtue among others and not the sum of political good, so that a system may score well on it and badly on democracy or justice, and each has to be assessed separately.

4. Give Bingham's fourth principle and say why it matters to this paper. Ministers and public officers must exercise their powers in good faith, fairly, for the purpose for which the powers were conferred, without exceeding their limits and not unreasonably. It is the standard against which every discretionary power in this book is tested, including the satisfaction of a detaining authority.

5. Why is Dicey alone insufficient for an LL.M. answer? Because a State can satisfy his formal requirements while authorising detention without trial, because his hostility to all discretion is unworkable in a modern State, and because his third meaning is a description of England that the Indian Constitution deliberately rejected.

The rule of law as part of the basic structure

The proposition that the rule of law is part of the basic structure comes from the second of the two decisions below, and it is worth stating exactly what each contributes.

In Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, a Bench of thirteen judges held that Parliament's power to amend the Constitution under article 368 does not extend to altering its basic structure or framework.

Facts. The petitioner, the head of a religious mutt in Kerala, challenged the Kerala land reforms legislation, and the case became the vehicle for a challenge to the Constitution (Twenty-fourth), (Twenty-fifth) and (Twenty-ninth) Amendment Acts. The question was whether the amending power in article 368 is unlimited.

Held. By a majority, the amending power is wide but not unlimited: a constitutional amendment may not damage or destroy the basic structure of the Constitution. The judges did not agree on an exhaustive list of what the basic structure contains, and the decision does not purport to give one.

Why it matters here. It creates the category into which the rule of law was later placed. Without it, no principle of this kind could survive a determined Parliament.

In Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, the category was used for the first time to strike down a constitutional amendment, and the rule of law was one of the grounds.

Facts. The Allahabad High Court had set aside the election of the Prime Minister on grounds of corrupt practice, and her appeal was pending in the Supreme Court. During the Emergency, Parliament enacted the Constitution (Thirty-ninth Amendment) Act 1975, inserting article 329A. Clause (4) of that article declared that the election of a person holding the office of Prime Minister or Speaker, if already declared void by a court, should be deemed void as if the amending statutes had always been in force, and that no court should have jurisdiction over such an election; in effect it declared the Prime Minister's election valid and put it beyond challenge in any forum under any law.

Held. Clause (4) of article 329A was struck down in its entirety as violating the basic structure. Its vice was not merely that it made the existing election law inapplicable to the challenge, but that it made no other election law applicable and conferred jurisdiction on no other authority: without prescribing a law and without providing a forum for adjudicating the grounds of challenge, the constituent authority had itself declared the election valid. To confer absolute validity on one particular election and to prescribe that its validity shall not be questioned before any forum or under any law is to say that however gross the improprieties and however flagrant the malpractices, nothing may be examined. The different parts of clause (4) were held to be so integrally connected that they could not be severed, so the clause fell as a whole.

Why it matters here. It is the strongest Indian authority on the rule of law available, and it is authority in the strict sense rather than dicta. It says that Parliament, exercising constituent power, may not resolve a particular dispute in favour of a particular person by declaration, without a law and without a forum. That is Bingham's second principle and Dicey's second meaning enforced against a constitutional amendment made during an emergency.

There is a further point examiners like. The decision was given on 7 November 1975, four months into the Emergency, and it went against the Prime Minister on the constitutional question while upholding her election on the merits under the amended Representation of the People Act. A student writing about the 1975 Emergency should know that the Court's record in that period is not uniform, and this is the case on the other side of the ledger from [ADM Jabalpur v. Shivkant Shukla].

What the rule of law does in Indian law, in practice

Four working consequences, each of which decides cases in this book.

1. Every exercise of public power must be traceable to a law. No provision, no power. This is why the first question in the four step plan in [National Security: What the Phrase Means in Law] is which power is being used.

2. Arbitrary action offends article 14 even where no other right is engaged. A detention order made without application of mind is bad on this ground alone, whatever the merits.

3. Judicial review is not merely available but structurally guaranteed. Article 32 is a fundamental right; the High Courts' power under article 226 has been held to be part of the basic structure, on which see [Tribunals After L. Chandra Kumar].

4. The rule of law survives an emergency, though its content narrows. After the 44th Amendment, articles 20 and 21 can never be suspended, so the proposition that there is no remedy at all can never be true again. That is worked in [The Non-Suspendability of Articles 20 and 21].

A worked example

Parliament, during a proclamation of emergency, enacts a law providing that the detention of a named person shall be deemed valid and shall not be questioned in any court.

Is this a law? In form yes. It is passed by the competent legislature and published.

Does it survive? No, and the reasoning is Indira Nehru Gandhi. A legislature may change the law that governs a dispute; it may not decide the dispute by declaration while providing neither a law to apply nor a forum to apply it. That is not an exercise of legislative power at all.

What if it were done by constitutional amendment? The same answer, and a fortiori, since that is what was actually done in 1975 and struck down.

What if it merely made the detention lawful under a general rule applying to a class? Then the objection changes. It would be a law, and the question would become whether it is consistent with articles 14, 21 and 22, which is the subject of the rest of Module I.

What it does NOT mean

The rule of law is not a free-standing ground of challenge. A petition does not succeed by saying that a statute offends the rule of law. It succeeds by locating the objection in article 14, article 21, article 19, legislative competence, or the basic structure.

The basic structure doctrine does not apply to ordinary legislation. An ordinary statute is tested against the Constitution's provisions, not against the basic structure. The doctrine limits the amending power.

Article 14 does not forbid classification. It forbids unreasonable classification and arbitrary action. Every special statute in Module II is a classification, and the question is always whether it is a reasonable one.

Quick revision

• The phrase appears nowhere in the text; the principle is structural.
• Textual homes: article 14 equality before the law; article 13 supremacy of the Constitution over laws; article 21 procedure established by law; articles 32 and 226 remedies; article 265 no tax without authority of law.
• Kesavananda Bharati, AIR 1973 SC 1461: the amending power cannot damage or destroy the basic structure.
• Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299: clause (4) of article 329A struck down in its entirety; a constituent authority may not declare one election valid without prescribing a law or providing a forum.
• Four working consequences: power must be traceable to law; arbitrariness offends article 14; judicial review is structurally guaranteed; and after 1978 articles 20 and 21 can never be suspended.

Test yourself

1. Where in the Constitution is the rule of law written? Nowhere. It is a structural principle, located in articles 13, 14, 21, 32, 226 and 265, and held to be part of the basic structure.

2. What exactly did Indira Nehru Gandhi strike down, and on what ground? Clause (4) of article 329A, inserted by the Constitution (Thirty-ninth Amendment) Act 1975, in its entirety, on the ground that it violated the basic structure by declaring a particular election valid without prescribing any law to govern the dispute or providing any forum to decide it.

3. Can a petitioner succeed simply by arguing that a statute offends the rule of law? No. The objection has to be located in a provision of the Constitution or, against an amendment, in the basic structure.

4. Which limb of article 14 is Dicey's, and which is American? Equality before the law is Dicey's phrase; the equal protection of the laws comes from the Fourteenth Amendment to the United States Constitution.

5. Why is Kesavananda Bharati relevant to a question about the rule of law? Because it created the basic structure limitation on the amending power, without which no principle of this kind could survive a constitutional amendment, and it is the doctrinal foundation on which Indira Nehru Gandhi placed the rule of law.

Q3. Is there independent adjudication, and how much of the decision can it reach? An Advisory Board of three persons who are, have been, or are qualified to be Judges of a High Court, appointed by the detaining Government, sitting in confidence, with no lawyer for the detenu, is not a court. A High Court on habeas corpus is.

Q4. Could the person have known in advance what would bring the power down on them? A detention order rests on a prediction about future conduct, so the answer is structurally weaker here than for a criminal offence.

A worked example: applying the test to a detention order

Q1. Yes. Section 3 of the National Security Act 1980 confers the power, states who may exercise it and on what grounds.

Q2. Partly. The Act binds the detaining authority to procedure, but section 16 gives protection for anything done in good faith, and the practical effect is that an official whose order is quashed faces no consequence.

Q3. Two answers. The Advisory Board is not independent adjudication in the full sense: it is constituted by the same Government, it sits in confidence, and section 11(4) provides that nothing in that section entitles the detenu to appear by any legal practitioner. The High Court on habeas corpus is independent, but it cannot examine the sufficiency of the grounds, which is the subject of [Subjective Satisfaction, and How Far a Court May Examine It].

Q4. Weak. The Act names grounds like the maintenance of public order, and whether a person's conduct falls within them is decided afterwards by an official.

Conclusion for an answer. Preventive detention in India sits between the two conceptions. It is unquestionably rule through law: the power is conferred, limited and reviewable. It is not the full rule of law: the reviewing body is not a court, the review does not reach the merits, and the citizen cannot know in advance. Whether the gap is justified by necessity is the argument in [Exceptional Legislation and the Rule of Law: An Assessment], and it is the argument MU is really setting when it puts national security and the rule of law in the same title.

The same test applied to an emergency

Q1. Yes. Article 352 confers the power to proclaim.

Q2. Yes and more so after 1978. The proclamation must be on written Cabinet advice, must be approved by both Houses by special majorities, and lapses if it is not.

Q3. Yes in part. The proclamation itself is subject to judicial review on limited grounds, and articles 20 and 21 can never be suspended.

Q4. Yes. The grounds are stated in article 352(1) and the consequences in articles 353 to 360.

The comparison is instructive and worth making in an answer: the emergency provisions, which sound more drastic, satisfy the rule of law test better than the detention statutes do, because they were rewritten in 1978 by a Parliament that had just seen them abused, while the detention statutes were not.

What it does NOT mean

It is not a claim that Indian law is rule by law. India has an enforceable bill of rights, judicial review as part of the basic structure, and an independent judiciary. The distinction is a tool for testing particular powers, not a verdict on a system.

It is not the same as good law and bad law. A law may be unwise and still satisfy the rule of law, and a well-intentioned law may fail it.

It does not mean discretion is rule by law. Discretion conferred in clear terms, exercised for the proper purpose on relevant considerations and subject to review, is compatible with the rule of law. Unconfined discretion is not.

Quick revision

• Rule by law: the State acts through legal forms; content unconstrained; the State not effectively bound.
• Rule of law: adds standards of content, binds officials, requires independent adjudication and prospective knowable rules.
• Four differences: content, whether the State is bound, independent adjudication, knowability in advance.
• The four question test: is there a legal source; does the law bind the official; is there independent adjudication and how far does it reach; could the person have known in advance.
• Applied to preventive detention: satisfies the first, partly the second, imperfectly the third, weakly the fourth.
• Applied to the emergency provisions after 1978: satisfies all four better, because Parliament rewrote them after the abuse.

Test yourself

1. State the difference in one sentence. Rule by law means the government governs through law; the rule of law means the government is itself governed by law.

2. Which provision of the National Security Act is the place to look when asking whether the law binds the official? Section 16, which provides that no suit, prosecution or other legal proceeding shall lie against the Government or any person for anything done in good faith in pursuance of the Act.

3. Why is an Advisory Board not independent adjudication in the full sense? Because it is constituted by the same Government that detains, its proceedings and report are confidential save for the part stating its opinion, and section 11(4) of the Act provides that nothing in that section entitles the detenu to appear by a legal practitioner.

4. Give the four questions of the test. Is there a legal source for the power? Does the law bind the official as well as the citizen? Is there independent adjudication and how far does it reach? Could the person have known in advance?

5. Why do the emergency provisions score better on the test than the detention statutes? Because they were rewritten by the 44th Amendment in 1978 by a Parliament that had just seen them abused, while the preventive detention statutes were not similarly reformed, and section 3 of that Amendment, which would have tightened article 22, has never been brought into force.

Article 356(1). If the President, on receipt of a report from the Governor of a State or otherwise, "is satisfied" that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of the Constitution, he may issue a proclamation.

The leading case

Khudiram Das v. State of West Bengal, AIR 1975 SC 550.

Facts. The petitioner was detained by an order of a District Magistrate under section 3(1) and (2) of the Maintenance of Internal Security Act 1971. The grounds stated that he was involved in three incidents of removing transformers and stealing copper wires, disrupting the supply of water and electricity, and had thus acted prejudicially to the maintenance of supplies and services essential to the community. The District Magistrate reported to the State Government and sent the petitioner's history sheet with the report; the State Government confirmed the detention after receiving the Advisory Board's report. In a petition under article 32 the detenu argued that three incidents of theft were objectively insufficient to justify satisfaction; that if the power turned on subjective satisfaction it imposed unreasonable restrictions on article 19(1); and that the history sheet, though before the Magistrate and the State Government and not disclosed to him, must have influenced them, contrary to article 22(5) and sections 3 and 8 of the Act.

Held. The petition was dismissed. Subjective satisfaction on the part of the detaining authority is the foundation of the power. The power of detention is a preventive measure; since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases to some extent on suspicion or anticipation as distinct from proof. The matters to be considered, namely whether the person concerned, having regard to his past conduct judged in the light of the surrounding circumstances and other relevant material, would be likely to act in a prejudicial manner, are not susceptible of objective determination and could not have been intended to be judged by objective standards. The court therefore cannot be invited to consider the propriety or sufficiency of the grounds on which the satisfaction is based. The Court also held that article 22(5) requires the communication of the grounds of detention and not of other particulars, which may include the background circumstances in which the Magistrate reached his satisfaction or particulars administratively necessary for the State Government's supervisory function, and that neither article 22(5) nor the Act requires those other particulars to be communicated to the detenu.

Why it matters here. It is the fullest statement of both halves of the doctrine: why the satisfaction is subjective, and what a court may still look at. It also draws the line between grounds and other particulars that decides many disclosure disputes, on which see [The Documents Relied On, and the Right to an Effective Representation].

What a court can still examine

This is the part students leave out, and it is where the marks are. Subjective satisfaction is not unreviewable satisfaction. Six things remain open, and each is developed in a later chapter.

1. Whether any satisfaction was formed at all. An order that recites satisfaction the material could not support, or that is passed mechanically, discloses no satisfaction. See [Non-Application of Mind, and the Mechanical Order].
2. Whether it was formed by the authority the law names. Section 3(3) of the National Security Act allows a District Magistrate or Commissioner of Police to act only when the State Government has by order in writing so directed and only within the period specified, in the first instance not exceeding three months.
3. Whether it was formed on a ground the law allows. Satisfaction about law and order will not support an order authorised on public order. That was Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, worked in [Public Order].
4. Whether the grounds were relevant and in existence. A ground that is vague, non-existent or irrelevant is no ground at all, though section 5A of the Act now makes grounds severable. See [The Grounds of Detention: Vague, Irrelevant and Stale].
5. Whether the material was stale. Satisfaction about future conduct cannot rest on incidents so old that the link is broken. See [The Live Link, and Delay in Passing the Order].
6. Whether the order is mala fide or a fraudulent exercise of power. Makhan Singh v. State of Punjab, AIR 1964 SC 381, holds that such an order is not an order under the statute at all.

Put those six in a list in an exam. They convert a vague statement that the courts still have some role into a demonstration of exactly what the role is.

The emergency half of MU's question

MU's question asks how far the principle is significant in the case of proclamations of emergency. Four propositions answer it.

1. The same drafting is used. Articles 352 and 356 both turn on the President's satisfaction, so the starting point is the same.

2. The satisfaction is the Council of Ministers'. The President acts on the aid and advice of the Council of Ministers under article 74(1), and for article 352 the 44th Amendment went further: clause (3) requires the decision of the Union Cabinet, communicated to the President in writing, before a proclamation may be issued. So the satisfaction that matters is a collective ministerial one, recorded.

3. Article 74(2) blocks one route of inquiry. The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court. That does not put the proclamation beyond review; it puts the advice beyond disclosure.

4. Clause (5) of article 352 was inserted and then removed. The Constitution (Thirty-eighth Amendment) Act 1975 had made the satisfaction final and conclusive and not questionable in any court; the 44th Amendment deleted that clause. The deletion is what makes review possible at all, and it is one of the changes to name in a 44th Amendment answer.

The extent of review that remains is worked in [The Justiciability of the Suspension of Article 19] and, by analogy from article 356, in [President's Rule and Financial Emergency, in Outline].

A worked example

The Commissioner of Police, Nagpur, makes an order under section 3(2) of the National Security Act reciting that he is satisfied that Deepa must be detained to prevent her acting prejudicially to the maintenance of public order. The grounds are three incidents: a quarrel with a neighbour in 2023, a complaint of cheating in 2024, and a speech in January 2026 after which a market closed for two days.

Can the High Court hold that three incidents are too few? No. That is the sufficiency of the grounds, and Khudiram Das forbids it.

Can it ask whether the Commissioner was empowered? Yes. Section 3(3) requires an order in writing by the State Government, and the order must be within the period specified.

Can it ask whether the first two incidents disclose a public order problem? Yes. That is the ground on which the power was exercised, and Lohia makes it a question of law. A quarrel and a cheating complaint are law and order.

Can it ask whether a 2023 quarrel can support a 2026 prediction? Yes. That is the live link.

What is the likely result? The third ground stands; the first two do not. Section 5A of the Act makes the grounds severable, so the order survives if the remaining ground would by itself have led to the same satisfaction, which is the question [The Grounds of Detention: Vague, Irrelevant and Stale] takes up.

Distinctions

What it does NOT mean

It does not mean the order is unchallengeable. Six routes remain open, and most successful habeas corpus petitions use them.

It does not mean the authority may act on nothing. There must be material, and it must be capable of supporting the satisfaction. What a court will not do is weigh it.

It does not mean the satisfaction is personal in the loose sense. It must be the satisfaction of the authority named, formed on the material placed before that authority.

It is not a doctrine invented for detention. It is the ordinary construction of "if satisfied" wherever it appears, including in the emergency articles.

Quick revision

• Subjective satisfaction: the condition of the power is the named authority's state of mind, not the objective existence of the facts.
• Justification: a preventive power rests on prediction, which proceeds on suspicion or anticipation as distinct from proof, and is not susceptible of objective determination.
• Khudiram Das v. State of West Bengal, AIR 1975 SC 550: the court cannot be invited to consider the propriety or sufficiency of the grounds; article 22(5) requires the grounds and not other particulars.
• Still reviewable: no satisfaction at all; wrong authority; wrong ground; vague, irrelevant or non-existent grounds; stale material; mala fides.
• Emergency: articles 352 and 356 use the same drafting; the satisfaction is the Cabinet's, in writing, after the 44th Amendment; article 74(2) bars inquiry into the advice; the finality clause inserted in 1975 was deleted in 1978.

Test yourself

1. Why is the satisfaction subjective rather than objective? Because a preventive power operates on a prediction about what a person would probably do if left free, which proceeds on suspicion or anticipation as distinct from proof and is not susceptible of objective determination.

2. Name four things a court may still examine. Any four of: whether a satisfaction was formed at all; whether it was formed by the authority the law names; whether it was formed on a ground the law allows; whether the grounds were relevant and in existence; whether the material was stale; whether the order was mala fide.

3. What distinction did Khudiram Das draw about disclosure? Between the grounds of detention, which article 22(5) requires to be communicated, and other particulars, such as the background circumstances of the satisfaction or matter needed for the State Government's supervisory function, which need not be.

4. Which clause of article 352 made the President's satisfaction final and conclusive, and what happened to it? Clause (5), inserted by the Constitution (Thirty-eighth Amendment) Act 1975, and deleted by the Constitution (Forty-fourth Amendment) Act 1978.

5. Whose satisfaction is it under article 352 today? In substance the Union Cabinet's: clause (3) requires the decision of the Union Cabinet, communicated to the President in writing, before a proclamation may be issued.

That choice has one consequence a student must know. A challenge to a detention statute can never succeed on the ground that preventive detention is as such unconstitutional. The Constitution assumes it. The challenge has to be that this statute, or this order, fails a condition.

The five features that define it

1. It is executive, not judicial. The order is made by a Government or by an officer it empowers. No court is involved at the making of it.
2. It is preventive, not punitive. It is directed to what the person may do, not to what he has done. Past conduct is evidence of propensity, not the subject of the order.
3. It rests on satisfaction, not on proof. The condition of the power is the authority's own satisfaction, on material that need not be evidence and need not be disclosed in full. See [Subjective Satisfaction, and How Far a Court May Examine It].
4. There is no charge and no trial. No offence is alleged, no accusation is framed, no witness is examined and there is no verdict.
5. The safeguards are procedural. What the detenu gets is the grounds, an opportunity to represent, a Board that reports, and a court that can test the legality of the order. He does not get a hearing on the merits of the prediction.

The vocabulary a student needs

Detenu. The person detained. The word is used throughout the statutes and the case law and is worth using in an answer.

Detaining authority. The Government or officer who makes the order under the statute.

Grounds of detention. The conclusions of fact on which the satisfaction rests, served on the detenu under article 22(5) and under the statute. Distinguished from the material or particulars behind them.

Representation. The detenu's written answer to the grounds, addressed to the Government and considered by it and by the Board.

Advisory Board. The body of three persons who are, have been, or are qualified to be appointed as, Judges of a High Court, which reports whether there is sufficient cause for the detention.

Confirmation. The Government's order continuing the detention after the Board reports in its favour.

Revocation. The cancellation of the order, whether by the Government of its own motion or because the Board has reported against it.

A worked example, taken to the end

On 3 March the State Government of Maharashtra makes an order under section 3(2) of the National Security Act 1980 directing that Farid be detained to prevent him from acting in a manner prejudicial to the maintenance of public order. He is arrested the same day.

Step 1, the order. No offence is alleged. The order recites the ground and the satisfaction.

Step 2, the grounds. Under section 8, the authority must communicate the grounds as soon as may be, ordinarily not later than five days, and in exceptional circumstances and for reasons recorded in writing not later than fifteen days, and must afford the earliest opportunity of representing against the order.

Step 3, the report. Where the order was made by a District Magistrate or Commissioner of Police under section 3(3), he must forthwith report to the State Government with the grounds; the order lapses after twelve days unless approved, extended to twenty days where the grounds were communicated after five days but within fifteen.

Step 4, the Board. Under section 10 the appropriate Government must place the grounds and any representation before the Advisory Board within three weeks of the detention. Under section 11 the Board reports within seven weeks of the detention, and section 11(4) provides that nothing in that section entitles the detenu to appear by any legal practitioner.

Step 5, the outcome. If the Board reports sufficient cause, section 12(1) allows the Government to confirm and continue the detention for such period as it thinks fit, subject to the maximum in section 13. If the Board reports no sufficient cause, section 12(2) requires the Government to revoke the order and release him forthwith.

Step 6, the maximum. Section 13 fixes twelve months from the date of detention for a confirmed order, without prejudice to the power to revoke or modify earlier.

Step 7, the court. At any point Farid may move the High Court under article 226 or the Supreme Court under article 32 for habeas corpus, on the grounds set out in [Subjective Satisfaction, and How Far a Court May Examine It].

What it does NOT mean

It is not house arrest by another name. The detenu is held in a place and under conditions the appropriate Government specifies under section 5, which in practice is a prison.

It is not a sentence. No period is fixed by reference to gravity, there is no conviction, and it produces no criminal record.

It is not the same as arrest on suspicion of an offence. An arrested person must be produced before a magistrate within twenty four hours; a detenu need not be produced before any court at all.

It is not available for any purpose the Government likes. The grounds are fixed by the statute and, behind the statute, by Entry 9 of the Union List and Entry 3 of the Concurrent List.

Quick revision

• Preventive detention: executive imprisonment to prevent future conduct, on the authority's subjective satisfaction, without charge, trial or conviction.
• Authorised by article 22(3) to (7), Entry 9 of List I and Entry 3 of List III.
• The Constituent Assembly's choice: authorise it in the Constitution with conditions rather than leave it to ordinary law.
• Consequence: it can never be attacked as unconstitutional in itself; only the statute or the order can be attacked.
• Five features: executive, preventive, satisfaction-based, no charge or trial, procedural safeguards only.
• The steps under the NSA: order, grounds within five or fifteen days, report and approval within twelve or twenty days, Board within three weeks and report within seven weeks, confirmation or release, twelve month maximum, and habeas corpus throughout.

Test yourself

1. Define preventive detention in one sentence. Detention by an executive order made on the subjective satisfaction of a statutory authority with a view to preventing a person from acting in a manner prejudicial to a purpose the statute specifies, without charge, trial or conviction.

2. Why can a detention statute never be challenged on the ground that preventive detention is unconstitutional? Because article 22(3)(b) and (4) to (7) assume the existence of laws providing for preventive detention, and Entry 9 of List I and Entry 3 of List III confer the legislative power to make them.

3. Within what time must the grounds be communicated under the National Security Act? As soon as may be, ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days from the date of detention.

4. What happens if the Advisory Board reports that there is no sufficient cause? Section 12(2) requires the appropriate Government to revoke the detention order and cause the person to be released forthwith.

5. What is the maximum period of detention under the National Security Act for a confirmed order? Twelve months from the date of detention, without prejudice to the power of the appropriate Government to revoke or modify the order earlier.

How a court tells them apart

The label on the order does not decide it. Three indicators are used.

What the order says it is for. A recital that the person is being detained to prevent him from acting prejudicially to a named purpose is the statutory form. A recital that he has committed offences and deserves to be dealt with is not.

Whether the grounds look forward. Grounds that recite past incidents are perfectly proper, because past conduct is the material from which propensity is inferred. What is improper is grounds that treat the past incidents as the reason for the detention rather than as evidence of what he will do.

Whether the ordinary law was available and was ignored for no reason. Where the person could simply have been prosecuted, and where nothing shows why prosecution would not answer, the inference that the order is punitive is available. This is the reasoning behind the modern line of decisions in [The Recent Judicial Trend on Preventive Detention].

A worked example

Rakesh is prosecuted for rioting and is acquitted in January for want of evidence. In March the District Magistrate makes an order under the National Security Act detaining him to prevent him from acting prejudicially to the maintenance of public order, and the grounds recite the same riot.

Is the acquittal a bar? No. The detention is not punishment for the offence and the standards differ.

Is the order therefore good? Not necessarily, and three questions remain.

Does the incident disclose a public order problem? That is the concentric circles test in [Law and Order, Public Order and Security of the State: The Three Concentric Circles].

Is there a live link between January and March? A single acquitted incident, without more, is thin material for a prediction. See [The Live Link, and Delay in Passing the Order].

Is the order in substance punitive? If the only material is the very incident on which he was acquitted, and nothing suggests a continuing propensity, the inference that the authority is punishing him for an acquittal is strong, and the order can be attacked on that footing.

Preventive detention compared with other preventive measures

The distinction students find harder is not between preventive and punitive but between preventive detention and the ordinary preventive powers, because both look forwards.

The point of the table is the third row and the fourth. The ordinary powers restrain conduct; detention removes the person. That is why necessity matters, and why [Keeping Public Order: The Executive's Ordinary Powers] comes before this module's statutes.

What it does NOT mean

Preventive detention is not a lesser punishment. It is not punishment at all in law, which is precisely why article 20 does not protect against it.

Past conduct is not irrelevant. It is the ordinary material from which the prediction is drawn. What is impermissible is treating it as the reason rather than the evidence.

A person in prison is not therefore immune. A detention order may be made against a person already in custody, subject to the compelling-necessity requirement in [Detention of a Person Already in Custody].

The distinction is not about severity. A detention of twelve months without trial may be far worse for the person than a fine. The distinction is about what the order is directed to.

Quick revision

• Punitive: backwards, court, charge and trial, proof beyond reasonable doubt, punishment, sentence fixed by gravity, full criminal safeguards, criminal record.
• Preventive: forwards, executive, satisfaction, suspicion or anticipation, prevention, period fixed by statute, article 22(4) to (7) safeguards only, no record.
• Article 20 does not apply to a detention order, because it is framed around an offence and a conviction.
• An acquittal is no bar, and a pending prosecution is no bar.
• An order that is in substance punitive is outside the statute.
• The harder distinction is from the ordinary preventive powers: those restrain conduct, detention removes the person.

Test yourself

1. Give four differences in one line each. Backwards against forwards; court against executive; proof against satisfaction; punishment against prevention.

2. Why does article 20(3) not protect a detenu? Because it protects a person accused of an offence against being compelled to be a witness against himself, and a detenu is not accused of any offence.

3. Can a person acquitted of an offence be detained on the same facts? Yes, because detention is not punishment for the offence and the standard is satisfaction rather than proof; but the order must still show a genuine preventive purpose, a live link, and the correct ground.

4. How does a court tell a punitive order dressed as a preventive one? By what the order recites, by whether the grounds treat past incidents as evidence of propensity or as the reason for the order, and by whether the ordinary law was available and was passed over without explanation.

5. What is the practical difference between a bond under section 126 of the Sanhita and a detention order? The bond follows a show cause notice and a hearing before a Magistrate and restrains conduct by an undertaking; the detention order is made without notice or hearing by an executive authority and removes the person into custody.

The National Security Act is worth pausing on. Its section 3 is drafted in two sub-sections, and the division is not accidental: sub-section (1) collects the Entry 9 grounds and sub-section (2) collects the Entry 3 grounds. A student who notices that has understood the constitutional architecture from the face of the statute.

COFEPOSA's own preamble supplies its constitutional justification in terms: it recites that violations of foreign exchange regulations and smuggling activities are having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State, and that having regard to the persons by whom and the manner in which such activities are organised, and to the fact that in certain areas highly vulnerable to smuggling such activities of considerable magnitude are clandestinely organised and carried on, it is necessary to provide for the detention of the persons concerned.

Why a State may not use the Union grounds

Because Entry 9 is in the Union List, and by article 246(1) Parliament has exclusive power with respect to the matters in that List. A State law purporting to authorise detention for reasons connected with the defence of India is beyond the competence of the State Legislature, and the question of repugnancy under article 254 never arises: an incompetent legislature does not reach that stage.

Where two competent laws collide

Because Entry 3 is concurrent, both legislatures may occupy the field, and article 254 decides a conflict. If a State law is repugnant to a Union law with respect to the same concurrent matter, the Union law prevails and the State law is void to the extent of the repugnancy, unless the State law was reserved for the consideration of the President and received his assent, in which case it prevails in that State. Even then, Parliament may afterwards enact a law adding to, amending, varying or repealing the State law.

The National Security Act itself deals with the overlap directly. Section 17 provides that nothing in the Act shall apply or have any effect with respect to orders of detention made under any State law which were in force immediately before the commencement of the National Security Ordinance 1980.

A worked example

The Legislature of Maharashtra passes an Act authorising the detention of a person, for up to two years, to prevent him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community, and provides that the Advisory Board shall consist of two retired District Judges.

Is the reason within the State's competence? Yes. The maintenance of supplies and services essential to the community is in Entry 3 of the Concurrent List.

Is the Advisory Board provision valid? No. Article 22(4)(a) requires an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court. A retired District Judge who is not qualified for appointment to a High Court does not answer that description, and no legislature can dilute a constitutional condition.

Is the two year period valid? Only if it satisfies article 22. A detention beyond three months requires either a favourable Advisory Board report under clause (4)(a) or a law made by Parliament under clause (7). A State Legislature cannot make a law under clause (7), because that clause names Parliament. So a State Act must build its scheme around the Board.

What if a Union Act covers the same ground? Article 254 applies, and unless the State Act was reserved and received the President's assent it is void to the extent of the repugnancy.

What it does NOT mean

It does not mean a State cannot detain for security reasons at all. It may, for the security of that State.

It does not mean the Union cannot legislate on public order. Entry 3 is concurrent, and section 3(2) of the National Security Act rests on it.

Competence is not the same as validity. A law within the competence of the legislature that made it may still be void for offending Part III. Competence is the first question, not the only one.

Quick revision

• List I Entry 9: preventive detention for defence, foreign affairs or the security of India, and persons so detained. Exclusive to Parliament.
• List III Entry 3: preventive detention for the security of a State, public order, or essential supplies and services, and persons so detained. Concurrent.
• List III Entry 4: removal of such persons from one State to another. Concurrent.
• The division is by the REASON for detaining.
• NSA s.3(1) collects the Entry 9 grounds; s.3(2) collects the Entry 3 grounds. COFEPOSA's preamble ties smuggling to the national economy and the security of the State.
• Article 254 governs a clash on the concurrent field; a State law needs the President's assent to prevail in that State.
• Article 22(7) names Parliament, so no State Act can use the without-a-Board route.

Test yourself

1. A State Act authorises detention for reasons connected with the relations of India with foreign powers. Valid? No. That is within Entry 9 of the Union List, which is exclusive to Parliament, and it is not in Entry 3.

2. Why is section 3 of the National Security Act drafted in two sub-sections? Because sub-section (1) uses the Entry 9 grounds, which only Parliament may enact, and sub-section (2) uses the Entry 3 grounds, which are concurrent.

3. Which entry supports moving a detenu from Maharashtra to Gujarat? Entry 4 of the Concurrent List, and section 5(b) of the National Security Act, which requires the consent of the other State Government where the order is made by a State Government.

4. Can a State Act provide for detention beyond three months without an Advisory Board? No. That route exists only under article 22(7)(a), which empowers Parliament, and a State Legislature cannot use it.

5. What does COFEPOSA's preamble say about the security of the State? That violations of foreign exchange regulations and smuggling activities are having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State.

Clause (3). Nothing in clauses (1) and (2) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.

Clause (4). No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention, provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).

Clause (5). When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

Clause (6). Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.

Clause (7). Parliament may by law prescribe (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).

The shape of the article in one view

Read that table downwards and the design is plain. Clause (3) is the hinge. Everything before it is the ordinary law of arrest; everything after it is a separate and weaker regime for a person against whom nothing has been alleged as an offence.

The three things this article does that matter most

It makes preventive detention constitutional. Once article 22(3)(b) speaks of "any law providing for preventive detention", the existence of such laws is assumed by the Constitution. A challenge to a detention statute can therefore never be that preventive detention is as such unconstitutional. It has to be that this statute, or this order, fails some condition.

It supplies the conditions. The three month rule, the Advisory Board, the communication of grounds and the opportunity to represent are constitutional requirements, not statutory concessions. Parliament cannot take them away by ordinary law, and a detention statute that omitted them would be void.

It leaves a hole in clause (7)(a). Parliament may prescribe circumstances in which a person may be held longer than three months without obtaining the opinion of an Advisory Board at all. That is the widest gap in the article, and [Article 22(7): What Parliament May Prescribe] shows what has and has not been done with it.

The amendment that was passed and never brought into force

This is the single most commonly misstated fact in the subject, and the official text itself records it.

Section 3 of the Constitution (Forty-fourth Amendment) Act 1978 substitutes clause (4) with a new clause reducing three months to two months, requiring the Advisory Board to be constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court, and requiring its Chairman to be a serving Judge of that High Court. The same section omits sub-clause (a) of clause (7) altogether, which would remove the power to detain beyond the period without any Board at all.

The Legislative Department's print carries these as footnotes reading, in terms, "(date yet to be notified)" and "(date to be notified)". They have never been notified. The old clauses are the law today.

An answer that states the two month rule as the current position is wrong, and it is wrong in a way an examiner will notice, because the point is precisely the kind of thing an LL.M. paper on this subject is testing. [The Article 22 the 44th Amendment Wrote, and Which Was Never Brought Into Force] works through what the amendment would do and why it matters that it has not.

A worked example running through the whole article

Farida is picked up in Pune on 3 March.

If she is arrested on suspicion of an offence, clauses (1) and (2) apply. She must be told the grounds of her arrest as soon as may be; she may consult and be defended by a lawyer of her choice; and she must be produced before the nearest magistrate within twenty four hours, excluding travelling time. Those constitutional requirements are worked out in ordinary law by sections 47 and 58 of the Bharatiya Nagarik Suraksha Sanhita 2023.

If instead the State Government makes an order under section 3 of the National Security Act 1980, clause (3)(b) switches all of that off. She need not be produced before a magistrate at all, and the constitutional right to counsel in clause (1) does not apply to her.

What she gets instead is clause (5): the grounds on which the order was made, communicated as soon as may be, and the earliest opportunity of making a representation. Clause (6) allows the authority to withhold facts it considers against the public interest to disclose. Under clause (4) she cannot be held beyond three months unless an Advisory Board has reported sufficient cause before those three months expire.

And the ordinary law adds to that. Section 8 of the National Security Act requires the grounds to be communicated ordinarily within five days, and sections 10 to 12 govern the reference to the Board and the confirmation of the order. Those are statutory, not constitutional, and Parliament could change them; the clause (4) and (5) requirements it could not.

What it does NOT mean

Clause (3) does not put the detenu outside Part III. It disapplies clauses (1) and (2) of article 22, and nothing else. Articles 14, 19, 21 and 32 continue to apply. That was not obvious in 1950, and [A.K. Gopalan and the Compartment Theory] explains why, but it has been settled since 1978.

Clause (5) is not a right to be told the evidence. It is a right to be told the grounds. The difference, and the extent to which the material relied on must nonetheless be supplied, is worked in [The Documents Relied On, and the Right to an Effective Representation].

The Advisory Board is not a court. It does not try anything, it does not take evidence in the ordinary sense, and the detenu has no right to be represented before it by a lawyer. [The Advisory Board in Practice, and A.K. Roy] takes that up.

Article 22 is not the only source of a detenu's protection. A great deal of what actually protects a detenu today comes from article 21 as read after 1978 and from the courts' insistence on the quality of the satisfaction and the grounds. The article is the floor.

Quick revision

• Article 22, marginal heading: protection against arrest and detention in certain cases.
• Clauses (1) and (2): grounds of arrest, counsel of choice, magistrate within 24 hours excluding journey time.
• Clause (3): those two clauses do not apply to an enemy alien or to a preventive detainee. This is the hinge.
• Clause (4): no detention beyond three months unless an Advisory Board of High Court Judges, serving, former or qualified, reports sufficient cause before the three months expire.
• Clause (5): communicate the grounds as soon as may be, and afford the earliest opportunity of representation.
• Clause (6): facts against the public interest need not be disclosed.
• Clause (7): Parliament may allow detention beyond three months without a Board, fix a maximum period, and prescribe the Board's procedure.
• The 44th Amendment's substitute clause (4), two months and a serving Judge as Chairman, has never been notified.

Test yourself

1. Which clause of article 22 is the hinge of the whole article, and why? Clause (3). It switches off clauses (1) and (2) for an enemy alien and for a preventive detainee, and everything after it exists because of that withdrawal.

2. A detention statute provides that a person may be held for six months without any reference to an Advisory Board. Is it valid? Only if Parliament has made it under article 22(7)(a), which permits prescribing the circumstances and classes of case in which detention beyond three months without a Board is allowed. A State legislature could not do it, and a Union law that did not purport to act under clause (7)(a) could not either.

3. Is the three month period in clause (4) now two months? No. The 44th Amendment's substitution has never been brought into force; the official text prints it in a footnote marked "date yet to be notified". Three months remains the constitutional limit.

4. Does a preventive detainee have a constitutional right to a lawyer? Not under article 22(1), which clause (3)(b) disapplies. Whether one arises from article 21 or before the Advisory Board is a separate question, answered in [The Advisory Board in Practice, and A.K. Roy].

5. Name the two safeguards in clause (5) and say who owes them. Communication of the grounds on which the order has been made, and the earliest opportunity of making a representation against the order. Both are owed by the authority making the order.

"Excluding the time necessary for the journey from the place of arrest to the court of the magistrate." Travelling time is excluded, and only the time necessary for the journey.

"And no such person shall be detained in custody beyond the said period without the authority of a magistrate." This is the operative prohibition. After twenty four hours plus travelling time, further custody requires a judicial order.

How the ordinary law gives them effect

The Bharatiya Nagarik Suraksha Sanhita 2023 carries the constitutional requirements into working procedure. Section 144 of the repealed Code is section 163 of the Sanhita, and the arrest provisions have been renumbered in the same way.

Section 47 requires every police officer or other person arresting any person without warrant to communicate forthwith to him full particulars of the offence for which he is arrested or other grounds for such arrest.

Section 57 requires a police officer making an arrest without warrant to take or send the person arrested before a Magistrate having jurisdiction, or before the officer in charge of a police station, without unnecessary delay and subject to the provisions as to bail.

Section 58 provides that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and that such period shall not, in the absence of a special order of a Magistrate under section 187, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court, whether having jurisdiction or not.

Section 58 therefore does two things the Constitution does not: it imposes a reasonableness limit within the twenty four hours, and it names the provision, section 187, under which a Magistrate may authorise further detention.

The consequence for a preventive detainee

Article 22(3)(b) provides that nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention.

So a detenu has, under article 22:

no constitutional right to be informed of the grounds of arrest under clause (1), though he has a different and later right to the grounds of detention under clause (5);

no constitutional right to consult and be defended by a legal practitioner of his choice;

and no right to be produced before any magistrate at all, at twenty four hours or ever.

That is the whole of what clause (3) does, and it is why [Article 22(3): Who Loses Those Rights] is the hinge of the article.

A worked example, run twice

The police in Thane take Nikhil into custody at 9 a.m. on Monday.

If he is arrested on suspicion of an offence. He must be told the full particulars of the offence forthwith under section 47. He may consult a lawyer of his choice. He must be produced before the nearest Magistrate by 9 a.m. on Tuesday, excluding only the time necessary for the journey, and cannot be held beyond that without the Magistrate's authority under section 187. Within the twenty four hours, section 58 requires that he not be held longer than is reasonable in the circumstances.

If a detention order under the National Security Act is served on him. None of that applies. He will be taken to a place of detention specified by the appropriate Government under section 5 of that Act. He will be given the grounds of detention under section 8, ordinarily within five days and in exceptional circumstances within fifteen. He will not be produced before a magistrate. He may make a representation to the Government. His case will go to an Advisory Board within three weeks under section 10, and section 11(4) provides that nothing in that section entitles him to appear by a legal practitioner.

The contrast between those two paragraphs is the single most useful thing a student can carry into an exam on this topic.

What it does NOT mean

Clause (1) is not a right to be given the evidence. It is a right to be informed of the grounds of the arrest.

Clause (2) does not give twenty four hours of lawful police custody as of right. Section 58 of the Sanhita requires that custody not exceed what is reasonable in the circumstances, and twenty four hours is the outer limit rather than an entitlement.

The right to a lawyer under clause (1) is not the same as legal aid. Legal aid at State expense comes from article 39A and article 21, and from the Legal Services Authorities Act 1987, on which see [Access to Courts in Practice: Legal Aid and Public Interest Litigation].

Clause (3) does not put a detenu outside Part III. It disapplies clauses (1) and (2) of article 22 and nothing else. Articles 14, 19, 21 and 32 continue to apply to him.

Quick revision

• Article 22(1): informed of the grounds of arrest as soon as may be; right to consult and be defended by a legal practitioner of his choice.
• Article 22(2): produced before the nearest magistrate within twenty four hours, excluding journey time; no custody beyond that without a magistrate's authority.
• BNSS s.47 full particulars forthwith; s.57 taken before a Magistrate without unnecessary delay; s.58 no longer than is reasonable and in any event not beyond twenty four hours excluding journey time, absent a special order under s.187.
• Article 22(3)(b) disapplies both clauses to a person detained under a preventive detention law.
• What a detenu gets instead: the grounds under clause (5) and section 8 of the NSA, a representation, and an Advisory Board, but no magistrate and no constitutional right to counsel.

Test yourself

1. From what moment is the twenty four hours computed, and what is excluded? From the arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate.

2. Which section of the Sanhita corresponds to article 22(1)'s requirement about grounds? Section 47, which requires full particulars of the offence or other grounds of arrest to be communicated forthwith.

3. Does a preventive detainee have to be produced before a magistrate? No. Article 22(3)(b) disapplies clause (2) to him.

4. Does section 58 of the Sanhita entitle the police to twenty four hours of custody? No. It forbids custody longer than is reasonable in all the circumstances, and fixes twenty four hours excluding journey time as the outer limit absent a Magistrate's special order under section 187.

5. Name the three things a detenu loses by clause (3). The right to be informed of the grounds of arrest under clause (1), the right to consult and be defended by a legal practitioner of his choice, and the right to be produced before a magistrate within twenty four hours.

It is automatic. No declaration is needed, no emergency is needed, and no order of any court is needed. The moment a person is held under such a law, clauses (1) and (2) cease to apply to him.

What is left after clause (3) operates

This is the list to give in an answer, because the examiner is testing whether the student thinks the detenu is left with nothing.

From article 22 itself: clause (4), the three month limit and the Advisory Board; clause (5), the grounds and the earliest opportunity of representation; and, as a limit on the State, clause (7), which confines what Parliament may prescribe.

From the rest of Part III: article 14, so an arbitrary order is bad; article 21, so the procedure must be right, just and fair after Maneka Gandhi v. Union of India, AIR 1978 SC 597; article 32 and article 226, so a court can be reached; and article 20 in its own terms, though it is of little use because there is no offence and no conviction.

From the statute: whatever the Act itself gives. Under the National Security Act 1980 that is section 8, grounds ordinarily within five days and in exceptional circumstances within fifteen; section 10, reference to the Advisory Board within three weeks; section 11, report within seven weeks; section 12, confirmation or release; section 13, a maximum of twelve months; and section 14, revocation.

The important structural point is this. The Constitution's own guarantee to a detenu is thin, and most of what actually protects him comes from article 21 as read after 1978 and from the statute. That is worth saying explicitly, because it explains why a book on this subject spends so much time on the statutes and on the judicial glosses in chapters 290 to 350.

Why the clause was drafted this way

Because the framers were making a trade, and it is better to state it than to deplore it.

Preventive detention was to be permitted. If clauses (1) and (2) applied to it, it could not work: a person detained to prevent future conduct cannot be produced before a magistrate for a decision on an accusation, because there is no accusation, and a right to be defended by counsel presupposes proceedings in which a defence is offered. So the ordinary safeguards were withdrawn and a different, thinner set was substituted in clauses (4) to (7).

Whether the substituted set is adequate is the question MU is asking whenever it sets the safeguards question, and the answer is in [The Safeguards Gathered, and the Safeguards Against Misuse].

A worked example

Zainab is picked up in Pune. Consider three legal bases.

A. Arrested on suspicion of an offence under the Bharatiya Nyaya Sanhita. Clauses (1) and (2) apply in full. Grounds forthwith, counsel of choice, magistrate within twenty four hours.

B. Detained under an order made under section 3(2) of the National Security Act 1980. Clause (3)(b) applies. No magistrate, no constitutional right to counsel, no right to the grounds of arrest under clause (1). She gets the grounds of detention under clause (5) and section 8, a representation, and the Advisory Board.

C. Arrested under a special criminal statute such as the Unlawful Activities (Prevention) Act 1967. Clauses (1) and (2) apply. That Act creates offences and provides for trial; it is not a preventive detention law, so clause (3)(b) has no application to it. The special features of that Act, such as the bail provision in section 43D(5), operate within a criminal process, not outside it.

Case C is the one students get wrong, and it is worth stating the rule that decides it: an Act is a preventive detention law only if it authorises detention without trial on a satisfaction about future conduct. An Act that creates offences and makes them hard to defend is a special criminal statute, and belongs to Module II.

What it does NOT mean

It does not suspend Part III for the detenu. Only clauses (1) and (2) of article 22 go.

It does not depend on an emergency. Clause (3) operates in ordinary times, which is what makes preventive detention in India unusual by comparative standards.

It does not make every foreigner an enemy alien. Sub-clause (a) is confined to the subject or citizen of a State at war with India, for the time being.

It is not a power. Clause (3) confers nothing on the State. It removes protections from the person. The power to detain comes from the statute, and behind the statute from Entry 9 of List I or Entry 3 of List III.

Quick revision

• Article 22(3): clauses (1) and (2) do not apply to an enemy alien, or to a person arrested or detained under any law providing for preventive detention.
• Effect: no grounds of arrest under clause (1), no constitutional right to counsel of choice, no production before a magistrate.
• Enemy alien: a subject or citizen of a State at war with India, for the time being. Not every foreigner.
• What survives: article 22(4), (5) and (7); articles 14, 21, 32 and 226; and whatever the statute gives.
• The test of a preventive detention law: does it authorise detention without trial on a satisfaction about future conduct? A special criminal statute is not one.

Test yourself

1. Which two clauses does article 22(3) switch off, and for whom? Clauses (1) and (2), for an enemy alien and for a person arrested or detained under any law providing for preventive detention.

2. Is every foreigner an enemy alien? No. An enemy alien is a subject or citizen of a State at war with India for the time being. A foreigner may still be detained under a preventive detention law, and section 2(d) of the National Security Act provides that "person" includes a foreigner.

3. Does the Unlawful Activities (Prevention) Act 1967 attract clause (3)(b)? No. It creates offences and provides for trial, so it is a special criminal statute and not a law providing for preventive detention.

4. Name three protections that survive clause (3). Any three of: article 22(4) and (5); article 14; article 21 as read after Maneka Gandhi; article 32; article 226; and the safeguards in the detention statute itself.

5. Does clause (3) require an emergency to operate? No. It operates in ordinary times, which is what makes Indian preventive detention unusual by comparison with most constitutions that contain a bill of rights.

Section 10. In every case where a detention order has been made, the appropriate Government shall, within three weeks from the date of detention, place before the Board the grounds on which the order was made and the representation, if any, made by the person affected, and where the order was made by a District Magistrate or Commissioner of Police under section 3(3), also that officer's report under section 3(4).

Section 11. The Board shall, after considering the materials placed before it and after calling for such further information as it deems necessary, and if it considers it essential or if the person concerned desires to be heard, after hearing him in person, submit its report within seven weeks from the date of detention. The report must specify in a separate part the Board's opinion whether or not there is sufficient cause for the detention. Where there is a difference of opinion, the opinion of the majority is deemed to be the Board's opinion. Sub-section (4) provides that nothing in the section entitles the detenu to appear by any legal practitioner in any matter connected with the reference, and that the proceedings and the report, except the part specifying the opinion, shall be confidential.

Section 12. Where the Board reports sufficient cause, the appropriate Government may confirm the order and continue the detention for such period as it thinks fit. Where the Board reports no sufficient cause, the Government shall revoke the order and cause the person to be released forthwith.

Section 13. The maximum period for a confirmed order is twelve months from the date of detention, without prejudice to the power to revoke or modify earlier.

The timetable is worth memorising because MU's safeguards question is often really a question about it: three weeks to the Board, seven weeks to the report, three months as the constitutional ceiling without a favourable report, twelve months as the statutory maximum.

The composition point, and why the 44th Amendment mattered

As article 22(4) stands, the Board may consist entirely of persons who are merely qualified to be appointed as High Court judges. In practice that means senior advocates and retired judicial officers, appointed by the Government that is detaining.

Section 3 of the Constitution (Forty-fourth Amendment) Act 1978 would change three things: the period would fall from three months to two; the Board would have to be constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court; and the Chairman would have to be a serving Judge of that High Court, with the other members serving or retired Judges of any High Court.

That amendment has never been brought into force. The official text of the Constitution prints the substituted clause in a footnote marked "date yet to be notified". The consequence is that the composition of the Board remains what it was in 1950, and the strongest structural criticism of the safeguard remains unanswered. See [The Article 22 the 44th Amendment Wrote, and Which Was Never Brought Into Force].

What the Board is not

It is not a court. It does not try anything, it takes no evidence in the ordinary sense, its proceedings are confidential, and its report binds the Government only when it is against the detention.

It does not decide the detention. Under section 12(1) a favourable report merely permits the Government to confirm. The Government may still revoke.

It does not hear argument from counsel. Section 11(4) says so in terms, and article 22(3)(b) is the reason. But the position is not absolute, and A.K. Roy v. Union of India, AIR 1982 SC 710, added two important qualifications which are worked in [The Advisory Board in Practice, and A.K. Roy]: if the detaining authority or the Government takes the aid of a legal practitioner or legal adviser before the Board, the detenu must be allowed the same facility, because to permit one and deny the other would breach article 14; and the embargo does not prevent the detenu from being aided or assisted by a friend who is not in truth a legal practitioner.

A worked example on the timetable

Vikram is detained on 1 April under section 3(2) of the National Security Act.

By 22 April the State Government must place the grounds and any representation before the Advisory Board, that being three weeks from the date of detention under section 10.

By 20 May the Board must submit its report, that being seven weeks from the date of detention under section 11.

By 30 June the Board must have reported that there is sufficient cause, that being three months from the date of detention. If it has not, article 22(4) forbids the law from authorising his further detention, and he must be released.

If it has so reported, the Government may confirm under section 12(1) and continue the detention.

Not beyond 31 March of the following year, that being twelve months from the date of detention under section 13.

If the Board reports against, section 12(2) requires immediate revocation and release. There is no discretion.

What it does NOT mean

Three months is not a minimum. It is a ceiling on what a law may authorise without a favourable report. The Government may revoke at any time.

A favourable report does not fix the period. It permits confirmation for such period as the Government thinks fit, subject to the statutory maximum.

The Board's report is not published. Section 11(4) makes the proceedings and the report confidential, except the part specifying the opinion.

Twelve months is the National Security Act's maximum, not a constitutional one. COFEPOSA fixes one year, or two years in the section 9 class of case, computed with the "specified period" explanation. Each Act has its own.

Quick revision

• Article 22(4): no law may authorise detention beyond three months unless an Advisory Board of persons who are, have been, or are qualified to be High Court Judges has reported sufficient cause before the three months expire; or the person is detained under a law made by Parliament under clause (7)(a) and (b).
• Proviso: even a favourable report cannot authorise detention beyond the maximum prescribed by Parliament under clause (7)(b).
• NSA s.9: three members, appointed by the detaining Government. s.10: reference within three weeks. s.11: report within seven weeks, opinion in a separate part, majority prevails, no legal practitioner, proceedings confidential. s.12: may confirm on a favourable report, must revoke and release on an adverse one. s.13: twelve months maximum.
• Section 3 of the 44th Amendment would cut three months to two and require a serving High Court Judge as Chairman on the Chief Justice's recommendation. Never notified.
• A.K. Roy, AIR 1982 SC 710: no right to counsel before the Board, but equality if the State uses a lawyer, and a friend who is not a legal practitioner may assist.

Test yourself

1. What must happen within three months, and what is the consequence if it does not? An Advisory Board of the prescribed composition must have reported that there is sufficient cause for the detention. If it has not, no law may authorise the detention to continue, and the detenu must be released.

2. Who may sit on an Advisory Board as article 22(4) now stands? Persons who are, or have been, or are qualified to be appointed as, Judges of a High Court. Under the National Security Act there are three of them, appointed by the appropriate Government.

3. Give the National Security Act's timetable. Reference to the Board within three weeks of detention under section 10; report within seven weeks under section 11; the constitutional three month limit; and a maximum of twelve months under section 13.

4. Must the Government release the detenu if the Board reports against the detention? Yes. Section 12(2) provides that the Government shall revoke the order and cause the person to be released forthwith.

5. Can a detenu be represented by a lawyer before the Board? Not as of right: section 11(4) says nothing in that section entitles him to appear by a legal practitioner. But on A.K. Roy, if the detaining authority or the Government uses a legal practitioner or legal adviser the detenu must be allowed the same facility, and he may be assisted by a friend who is not a legal practitioner.

Section 3(3) of COFEPOSA 1974 is drafted expressly by reference to the Constitution: "For the purposes of clause (5) of article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention."

Two points follow. The five day period is the ordinary rule and fifteen days is the exception, and the exception requires exceptional circumstances and reasons recorded in writing. An authority that takes eleven days without recording reasons has breached the section even though it is within fifteen days.

The six rules the courts have built on clause (5)

Each of these has a chapter of its own, and they are listed here so that a student can see that they are a single scheme rather than a list of unrelated points.

1. The grounds must not be vague, irrelevant or non-existent. A ground the detenu cannot answer is no ground. See [The Grounds of Detention: Vague, Irrelevant and Stale].
2. There must be a live link between the grounds and the detention. Stale material cannot support a prediction. See [The Live Link, and Delay in Passing the Order].
3. The mind must have been applied. Grounds copied mechanically show no satisfaction. See [Non-Application of Mind, and the Mechanical Order].
4. The grounds must be intelligible to this detenu. Service in a language he cannot read is not communication. See [Communicating the Grounds, and the Language the Detenu Understands].
5. The material relied on must be supplied. An opportunity to represent against conclusions whose basis is withheld is not the earliest opportunity of making a representation. See [The Documents Relied On, and the Right to an Effective Representation].
6. The representation must be decided, without unexplained delay, by everyone who has to decide it. See [Delay in Deciding the Representation].

The distinction that decides disclosure disputes

Khudiram Das v. State of West Bengal, AIR 1975 SC 550, worked in [Subjective Satisfaction, and How Far a Court May Examine It], draws the line that governs.

Article 22(5) requires the communication of the grounds of detention and not of other particulars. Other particulars may include matter relating to the background of the circumstances in which the authority reached its satisfaction, or particulars found to be administratively necessary to communicate to the State Government so that its supervisory function may be effectively discharged. Nothing in article 22(5) or in the Act requires those to be communicated to the detenu.

That is the reason a detenu is not entitled to the whole file. What he is entitled to is the grounds, and the material on which those grounds rest.

A worked example

Sunita is detained on 1 June. The grounds are served on 12 June with a covering note saying that service was delayed because the file was with the Advisory Board section.

Is the service within time? Fifteen days from 1 June is 16 June, so it is within the outer limit.

Is it lawful? Not on those facts. Section 8(1) allows service after five days only in exceptional circumstances and for reasons recorded in writing. Administrative movement of a file is not an exceptional circumstance, and a covering note is not the same as reasons recorded in writing before or at the time.

What follows? The breach is of a mandatory provision, so it is a plea that survives even a Presidential order under article 359, on Makhan Singh v. State of Punjab, AIR 1964 SC 381. The detention is liable to be quashed.

Change the facts. The grounds are served on 4 June, but the statements of the two witnesses referred to in them are not supplied. Sunita's representation says she cannot answer without knowing what they said.

Now? The obligation is to afford the earliest opportunity of making a representation, and a representation against conclusions whose basis is withheld is not an effective one. The failure is of the second limb of clause (5) rather than the first.

What it does NOT mean

It is not a right to a hearing before the order. A detention order is made without notice. Clause (5) operates after the detention.

It is not a right to the entire file. Khudiram Das distinguishes grounds from other particulars.

It is not satisfied by the statutory time limit alone. Service within fifteen days is not compliance unless the conditions for going beyond five are met.

The representation is not made to the Advisory Board in the first instance. Under section 8(1) of the National Security Act it is made to the appropriate Government, and under section 10 it is then placed before the Board along with the grounds.

Quick revision

• Article 22(5): communicate the grounds as soon as may be, and afford the earliest opportunity of making a representation against the order.
• NSA s.8(1): ordinarily not later than five days; in exceptional circumstances and for reasons recorded in writing, not later than fifteen days; representation to the appropriate Government. COFEPOSA s.3(3) is in the same terms and says it is for the purposes of article 22(5).
• Two separate obligations: the grounds, and the opportunity.
• Six judicial rules: not vague, irrelevant or non-existent; live link; application of mind; intelligible language; material supplied; representation decided without unexplained delay.
• Khudiram Das: grounds must be communicated, other particulars need not.

Test yourself

1. What are the two obligations in article 22(5)? To communicate the grounds on which the order has been made, as soon as may be, and to afford the detenu the earliest opportunity of making a representation against the order.

2. Within what period must the grounds be served under the National Security Act, and on what condition may the longer period be used? Ordinarily within five days; up to fifteen days only in exceptional circumstances and for reasons to be recorded in writing.

3. Is a detenu entitled to the whole file? No. On Khudiram Das he is entitled to the grounds and not to other particulars, such as the background of the authority's satisfaction or matter needed for the State Government's supervisory function.

4. To whom is the representation made under the National Security Act? To the appropriate Government under section 8(1); it is then placed before the Advisory Board with the grounds under section 10.

5. Grounds are served on the fourteenth day with no reasons recorded. Lawful? No. The fifteen day outer limit applies only where there are exceptional circumstances and reasons recorded in writing; without those, the ordinary five day rule governs and the service is out of time.

The statutory versions

Section 8(2) of the National Security Act 1980: nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.

COFEPOSA 1974 contains the same protection in its own scheme, and section 3(3) of that Act frames the disclosure obligation expressly by reference to article 22(5).

Both are in the same words as the Constitution, so nothing turns on any difference between them.

What limits the clause

Four limits, and an answer that gives them shows that the clause is not a blank cheque.

1. It reaches facts only. An authority that withholds the grounds is not exercising clause (6); it is breaching clause (5).

2. There must be an actual judgment. The words are "which such authority considers". If nothing shows that the authority applied its mind to the public interest at all, the clause is not engaged, and this is the ordinary rule about non-application of mind applied here.

3. The public interest must be the reason. Administrative convenience, embarrassment, or a wish to avoid explaining a weak case are not the public interest.

4. It cannot be used to defeat clause (5) in substance. Clause (5) requires the earliest opportunity of making a representation. If what is withheld makes any effective representation impossible, the two clauses collide, and the resolution is that clause (6) is an exception to the disclosure of facts and not a licence to render the representation useless.

A worked example

The grounds served on Imran say that on three named dates he received consignments of foreign-marked gold at a jetty near Alibag, on the basis of information received. He asks for the informer's statement.

Can it be withheld? The identity of an informer, and the statement in so far as it would identify him, are classic clause (6) material, and the authority may withhold them on a recorded public interest judgment.

Must anything be given? Yes. The grounds already state the dates and the place. If there is a seizure panchnama or a customs report relied on, that is material behind the grounds and is ordinarily to be supplied, redacted so far as necessary to protect the source.

What if the whole ground is "information received" with no dates, no place and nothing else? Then the objection is not under clause (6) at all. The ground is vague, and a vague ground is no ground: see [The Grounds of Detention: Vague, Irrelevant and Stale].

Distinctions

What it does NOT mean

It does not permit withholding the grounds. Only facts.

It does not make the withholding unreviewable. A court may ask whether the authority considered the question at all and whether the reason given is a public interest reason.

It does not extend to the court. The clause relieves the authority of an obligation to the detenu. It is not a bar on the court calling for the record, and in habeas corpus the record is routinely placed before the court.

It is not the same as section 16A(9) of the repealed MISA. That provision went much further, making the grounds and the information confidential and not liable to be disclosed to any court, and it was upheld in ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, in the very different constitutional atmosphere described in that chapter. Nothing like it is in the National Security Act.

Quick revision

• Article 22(6): nothing in clause (5) requires the authority to disclose facts which it considers to be against the public interest to disclose.
• Facts only. Grounds must always be communicated.
• NSA s.8(2) is in the same words.
• Four limits: facts only; an actual judgment must be made; the reason must be the public interest; and it cannot be used to make the representation useless.
• The middle category, material relied on, is ordinarily to be supplied because the representation depends on it.

Test yourself

1. What may be withheld under clause (6)? Facts which the authority making the order considers to be against the public interest to disclose.

2. May the grounds be withheld? No. Clause (6) is an exception to the disclosure of facts and does not touch the obligation in clause (5) to communicate the grounds.

3. Is the authority's judgment reviewable? Yes, though within limits: a court may ask whether the authority applied its mind to the question and whether the reason is genuinely a public interest reason, but it will not substitute its own view of where the public interest lies.

4. How does clause (6) differ from section 16A(9) of the repealed Maintenance of Internal Security Act? Clause (6) relieves the authority of an obligation to the detenu in respect of facts. Section 16A(9) went much further and made the grounds and the information confidential and not liable to be disclosed to any court.

5. A ground reads only "on the basis of information received, the detenu is engaged in smuggling". Is clause (6) the answer to a complaint about it? No. The complaint is that the ground is vague and cannot be answered, which is a breach of clause (5), and clause (6) has nothing to say about it.

The one significant use of clause (7)(a), and why it is spent

Section 9 of COFEPOSA 1974 is the provision to know, and its own words settle its present effect.

Section 9(1) provides that notwithstanding anything in the Act, any person, including a foreigner, in respect of whom an order of detention is made under the Act at any time before the 31st day of July, 1999, may be detained without obtaining, in accordance with article 22(4)(a), the opinion of an Advisory Board, for a period longer than three months but not exceeding six months from the date of detention, where the order was made with a view to preventing him from smuggling goods or abetting the smuggling of goods or engaging in transporting or concealing or keeping smuggled goods, and the Central Government or an officer not below the rank of an Additional Secretary specially empowered is satisfied that he smuggles or is likely to smuggle, abets or is likely to abet, or engages or is likely to engage in transporting, concealing or keeping smuggled goods, into, out of or through any area highly vulnerable to smuggling, and makes a declaration to that effect within five weeks of the detention.

Explanation 1 defines "area highly vulnerable to smuggling" and the definition is worth knowing because it shows how narrowly the class was drawn: the Indian customs waters contiguous to Goa, Gujarat, Karnataka, Kerala, Maharashtra and Tamil Nadu and the Union territories of Daman and Diu and Pondicherry; the inland area fifty kilometres in width from the coast of India in those States and Union territories; the inland area fifty kilometres in width from the India-Pakistan border in Gujarat, Jammu and Kashmir, Punjab and Rajasthan; the customs airport of Delhi; and such further customs waters, inland area not exceeding one hundred kilometres from any other coast or border, or other customs station, as the Central Government may notify.

The date matters. The words "at any time before the 31st day of July, 1999" were substituted by Act 15 of 1996 for "31st day of July, 1996". No later substitution has been made. So section 9 cannot apply to any order of detention made after 31 July 1999, and the without-a-Board route under COFEPOSA is spent.

A student who states that COFEPOSA allows a year's detention without an Advisory Board is describing the law as it was before the turn of the century. The correct statement is that it did so for orders made before 31 July 1999, in respect of smuggling in a highly vulnerable area, on a declaration made within five weeks, and that the provision has not been renewed.

Clause (7)(b) in operation

Two maximum periods are worth knowing.

Section 13 of the National Security Act 1980: the maximum period for which a person may be detained under a confirmed order is twelve months from the date of detention, without prejudice to the power of the appropriate Government to revoke or modify earlier.

Section 10 of COFEPOSA 1974: the maximum is one year from the date of detention, or the specified period, whichever expires later, for an ordinary order; and two years from the date of detention, or the specified period, whichever expires later, for an order to which section 9 applies.

The "specified period" is defined by the Explanation to section 10 as the period during which the Proclamation of Emergency issued under article 352(1) on 3 December 1971 and the Proclamation issued under that clause on 25 June 1975 are both in operation. Both were revoked in March 1977, so the specified period ended then and the phrase is now historical. It is worth quoting nonetheless, because it is a rare instance of a detention statute keying its own maximum period to a proclamation of emergency, and it is a direct link between Module I and Module II.

A worked example

Parliament enacts a law providing that a person detained on the ground of terrorism may be held for eighteen months without any reference to an Advisory Board.

Is it within clause (7)(a)? Only if it prescribes the circumstances and the class or classes of cases. A bare reference to "terrorism" would probably not answer that requirement; the drafting of COFEPOSA section 9, with its defined vulnerable areas and its five week declaration, shows the level of particularity the sub-clause contemplates.

Is the eighteen months lawful? Clause (7)(a) itself fixes no outer limit, but the law would also need to fix a maximum under clause (7)(b), and the proviso to clause (4)(a) shows that Parliament's maximum binds.

Could a State enact it? No. Clause (7) names Parliament.

Would it survive articles 14 and 21? That is the real question after Maneka Gandhi v. Union of India, AIR 1978 SC 597. A class defined so broadly that it covers whoever the executive says it covers, with no Board and no independent check for eighteen months, would face a serious challenge on the ground that the procedure is neither right, just nor fair.

What it does NOT mean

Clause (7) is not a power to detain. It is a power to legislate about detention. The power to detain comes from the statute.

Clause (7)(a) does not dispense with clause (5). Grounds must still be communicated and a representation must still be afforded, whatever happens to the Board.

It does not let Parliament abolish the Board generally. It permits a law for prescribed circumstances and classes of cases, not a general repeal of clause (4).

Section 3 of the 44th Amendment would remove sub-clause (a) altogether, re-lettering (b) as (a) and (c) as (b). It has never been notified, so sub-clause (a) is still there. See the next chapter.

Quick revision

• Article 22(7): Parliament may prescribe (a) circumstances and classes of cases for detention beyond three months without an Advisory Board; (b) the maximum period for any class; (c) the Board's procedure.
• Only Parliament. No State Legislature.
• The proviso to clause (4)(a): a favourable Board report cannot authorise detention beyond Parliament's clause (7)(b) maximum.
• COFEPOSA s.9 is the only significant use of clause (7)(a), and it applies only to orders made before 31 July 1999, for smuggling in a defined highly vulnerable area, on a declaration within five weeks. It is spent.
• Maximums: NSA s.13, twelve months. COFEPOSA s.10, one year, or two years in a section 9 case, or the specified period if later; the specified period is when the 1971 and 1975 proclamations were both in operation.
• Section 11 of the NSA is made under clause (7)(c).

Test yourself

1. What are the three things Parliament may prescribe under clause (7)? Circumstances and classes of cases for detention beyond three months without an Advisory Board; the maximum period for a class or classes; and the procedure of an Advisory Board.

2. Can a State Legislature use clause (7)(a)? No. The clause names Parliament, so the without-a-Board route is closed to the States entirely.

3. Does section 9 of COFEPOSA still operate? No. It applies only to orders of detention made at any time before 31 July 1999, a date substituted in 1996 and never extended.

4. What is the "specified period" in COFEPOSA section 10? The period during which the Proclamation of Emergency of 3 December 1971 and the Proclamation of 25 June 1975 were both in operation. Both were revoked in March 1977.

5. Which provision of the National Security Act is made under clause (7)(c)? Section 11, which prescribes the procedure of the Advisory Board, including the seven week report, the separate part specifying the opinion, the majority rule, the exclusion of legal practitioners and the confidentiality of the proceedings.

Taken together they would convert the Advisory Board from a body chosen by the detaining Government into a body chosen by the judiciary, and would remove the single largest hole in article 22.

Why it has never been brought into force

Because section 1(2) of the Amendment Act left commencement to the Central Government, and the Supreme Court has held that it will not compel the Government to act.

A.K. Roy v. Union of India, AIR 1982 SC 710, is worked in [The Advisory Board in Practice, and A.K. Roy]. Its holding on this point is that the Court could not issue a mandamus obliging the Central Government to bring section 3 into force: Parliament having left the question to the unfettered judgment of the Central Government, it is not for the Court to compel the Government to do what, according to the mandate of Parliament, lies in its discretion to do when it considers it opportune; the executive is responsible to Parliament, which can censure it, and it would be anomalous for the inaction of the executive to have the approval of Parliament while the Court showed its disapproval by mandamus.

The Court nonetheless recorded its unease in terms a student should quote: in leaving commencement to the Government's judgment, Parliament could not have intended that the Government might exercise a kind of veto over its constituent will by never bringing a provision into force; and Parliament having seen the necessity of a provision like section 3, it is not open to the Central Government to sit in judgment over the wisdom of its policy.

That was in 1981, more than two and a half years after the rest of the Amendment had been notified. More than four decades have passed since.

How to state the law in an answer

There is a right way and a wrong way, and the difference is worth marks.

Wrong. "Under article 22(4) as amended by the 44th Amendment, a person cannot be detained for more than two months without the opinion of an Advisory Board headed by a sitting High Court judge."

Right. "Article 22(4) permits detention for up to three months without a favourable report from an Advisory Board of persons who are, have been, or are qualified to be appointed as, Judges of a High Court. Section 3 of the Constitution (Forty-fourth Amendment) Act 1978 would reduce the period to two months, require the Board to be constituted on the recommendations of the Chief Justice of the appropriate High Court with a serving Judge as Chairman, and omit clause (7)(a) altogether; but it has never been brought into force, and the Supreme Court declined to compel its commencement in A.K. Roy v. Union of India, AIR 1982 SC 710."

The second version states the current law, the reform, and the reason the reform is not law. That is a complete answer.

Where the evidence for the proposition is

Not in a textbook. In the Constitution's own official text.

The Legislative Department's diglot edition prints article 22(4) as it stands, and beneath it a footnote beginning "Cl. (4) shall stand substituted by the Constitution (Forty-fourth Amendment) Act, 1978, s. 3 (date yet to be notified) as", followed by the substituted clause in full. It prints similar footnotes against clause (7), recording that sub-clause (a) shall stand omitted by section 3(b)(i) and that sub-clauses (b) and (c) shall stand re-lettered, in each case "(date to be notified)".

A footnote in the official text is the best possible authority for a negative proposition of this kind, and it is worth telling a student where to look.

A worked example

A person is detained on 1 March 2026 under the National Security Act. The reference to the Advisory Board is made on 2 April, the Board reports on 25 May that there is sufficient cause, and the Government confirms the detention on 1 June for twelve months.

Which text of article 22 applies? The text as it has stood since 1950. The recasting by section 3 of the Constitution (Forty-fourth Amendment) Act 1978 was never notified.

How long may he be held before the Board's opinion? Three months, not two. Article 22(4)(a) permits detention beyond three months only where an Advisory Board has reported sufficient cause before the expiry of three months, and here the report of 25 May is within that period.

How is the Board constituted? Under article 22(4)(a) as it stands, of persons who are, have been, or are qualified to be appointed as, Judges of a High Court; the amendment would have required a serving or retired Judge as Chairman and appointment on the Chief Justice's recommendation, and it is not in force.

Would the position differ if the amendment had been notified? Yes in two respects: the outer period would be two months, so a report of 25 May would be too late; and a Board not constituted as the amended clause requires would be no Board at all.

What does a student write? That the amendment exists, that it was never brought into force, that article 22 therefore reads as it did in 1950, and that an answer stating the two month rule as the law is wrong.

What it does NOT mean

It does not mean the 44th Amendment failed. Almost all of it is in force, including the changes to articles 352, 358 and 359 that are the subject of Module II. Only section 3 is outstanding.

It does not mean the Government acted unlawfully. On A.K. Roy, the discretion was Parliament's to confer and it conferred it.

It does not mean the reform is dead. A notification could be issued at any time. Nothing has repealed section 3.

It does not affect the emergency changes. The article 359 amendment that made articles 20 and 21 non-suspendable is section 40 of the same Act, and it is in force.

Quick revision

• Section 3 of the Constitution (Forty-fourth Amendment) Act 1978 substitutes article 22(4) and omits article 22(7)(a).
• Five changes: two months instead of three; Board constituted on the Chief Justice's recommendations; a serving High Court Judge as Chairman; other members serving or retired Judges; and the without-a-Board route abolished.
• Section 1(2) left commencement to the Central Government; every section except section 3 was notified.
• A.K. Roy v. Union of India, AIR 1982 SC 710: no mandamus to compel commencement, but the Government may not veto Parliament's constituent will or sit in judgment on the wisdom of its policy.
• The official text of the Constitution prints the substituted clause in a footnote marked "date yet to be notified". That is the authority to cite.

Test yourself

1. Is the period in article 22(4) two months or three? Three. The two month rule is in section 3 of the 44th Amendment, which has never been brought into force.

2. Who would constitute the Advisory Board under the substituted clause, and who does now? Under the substituted clause it would be constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court, with a serving Judge as Chairman. At present the appropriate Government appoints it under section 9(2) of the National Security Act 1980.

3. Why could the Supreme Court not order the Government to bring section 3 into force? Because section 1(2) of the Amendment Act left commencement to the Central Government's judgment, so on A.K. Roy the Court would not compel by mandamus what Parliament had left to the Government's discretion.

4. What would happen to article 22(7)(a) if section 3 were notified? It would be omitted altogether, sub-clause (b) would become (a) and sub-clause (c) would become (b), so Parliament could no longer authorise detention beyond the period without any Advisory Board.

5. Where can a student verify that section 3 is not in force? In the Legislative Department's official text of the Constitution, which prints the substituted clause (4) and the omissions from clause (7) in footnotes marked "date yet to be notified" and "date to be notified".

Three consequences followed, and they are the reason the theory mattered.

A detention law escaped the reasonableness test. Article 19 requires restrictions to be reasonable. Article 21 as read in Gopalan required only that there be a law. A statute that put a man in prison for a year on suspicion therefore faced no reasonableness scrutiny at all.

Article 21 gave almost nothing. If the only requirement is a validly enacted procedure, then any procedure will do, however arbitrary, so long as a competent legislature enacts it.

Article 22 became a ceiling as well as a floor. Because it was a complete code, a detenu could not argue that something more than article 22 was required.

The dissent that became the law

Fazl Ali J. dissented. His position, in substance, was that the fundamental rights are not water-tight compartments but overlap, that preventive detention necessarily affects the freedoms in article 19, and that the procedure contemplated by article 21 must satisfy the principles of natural justice, including notice and a hearing.

It is worth noticing that Fazl Ali J. had dissented in the same direction in Romesh Thappar v. State of Madras, AIR 1950 SC 124, and Brij Bhushan v. State of Delhi, AIR 1950 SC 129, decided the same year. His view prevailed in the end on the question that mattered most.

Why the Constituent Assembly's choice of words mattered

The majority relied heavily on the drafting history. The Assembly had before it the phrase "due process of law" and deliberately replaced it with "procedure established by law", on the advice of Sir B.N. Rau, who had been told by Justice Frankfurter of the United States Supreme Court that the due process clause was undemocratic because it gave judges power to invalidate legislation. That history is set out in [Why Article 21 Says 'Procedure Established by Law'].

The majority treated the choice as decisive: a phrase deliberately rejected cannot be read back in. The answer that eventually prevailed, in Maneka Gandhi v. Union of India, AIR 1978 SC 597, was that the requirement of fairness comes not from reading due process into article 21 but from reading articles 14, 19 and 21 together.

A worked example of the difference the theory made

A statute provides that a person may be detained for two years on the satisfaction of a Deputy Collector, that no grounds need be given for six months, and that the Advisory Board shall consist of three officers of the Government.

On the compartment theory. Test it against article 22 alone. It fails: the Board's composition breaches clause (4), and the six month delay in grounds breaches clause (5). Correct those two defects and, on Gopalan, the statute is valid, however unreasonable its remaining terms.

After Maneka. Test it against articles 14, 19 and 21 as well. The procedure must be right, just and fair and not arbitrary, fanciful or oppressive; a two year detention on a Deputy Collector's satisfaction, without more, would face scrutiny on that footing; and the effect on the freedoms in article 19 is a relevant question.

What survived Gopalan

Not everything in it was overturned, and an answer that says it was "overruled" without qualification is imprecise.

The interpretation of article 22 as containing the specific requirements for detention laws survives. A detention law must still satisfy clauses (4) to (7).

The rejection of American due process as a textual matter survives. Indian courts have not held that article 21 contains a due process clause; they have held that the procedure must be fair, which reaches much the same result by a different route.

What did not survive is the exclusivity. Article 22 is no longer a complete code in the sense of excluding articles 14, 19 and 21. That is the change Maneka Gandhi made, and it is worked in the next chapter.

What it does NOT mean

It does not mean the Court approved preventive detention as a policy. It held that the Constitution had authorised it and that the statute complied with the authorisation.

It is not authority for anything about the sufficiency of grounds. That doctrine comes later, from Khudiram Das v. State of West Bengal, AIR 1975 SC 550, and the cases in chapters 290 to 340.

It was not overruled by name in 1978. Maneka Gandhi held that the articles are not mutually exclusive, which destroys the foundation of Gopalan without a formal overruling of every proposition in it.

Quick revision

• A.K. Gopalan v. State of Madras, AIR 1950 SC 27. Preventive Detention Act 1950 upheld save for one section.
• Compartment theory: articles 19, 21 and 22 are mutually exclusive; article 22 is a complete code for detention laws.
• "Procedure established by law" means procedure prescribed by a validly enacted law, with no requirement of fairness.
• Consequences: no reasonableness scrutiny of a detention law; article 21 nearly empty; article 22 a ceiling as well as a floor.
• Fazl Ali J. dissented, holding that the rights overlap and that the procedure must satisfy natural justice. His view prevailed in 1978.
• What survives: article 22's specific requirements, and the textual rejection of American due process. What fell: exclusivity.

Test yourself

1. State the compartment theory in one sentence. That the fundamental rights in Part III occupy mutually exclusive fields, so a law is tested only against the article into which it falls, and article 22 is a complete code for preventive detention.

2. What did "procedure established by law" mean on the Gopalan reading? Procedure prescribed by a law enacted by a competent legislature, with no requirement that the procedure itself be fair or reasonable.

3. Why did the majority rely on the Constituent Assembly's drafting? Because the Assembly had considered and deliberately rejected "due process of law" in favour of "procedure established by law", and a phrase deliberately rejected cannot be read back into the text.

4. Who dissented, and on what? Fazl Ali J., holding that the fundamental rights are not water-tight compartments, that preventive detention affects the article 19 freedoms, and that the procedure under article 21 must satisfy natural justice.

5. What part of Gopalan survives today? The proposition that a detention law must satisfy the specific requirements of article 22, and the textual position that article 21 does not import American due process. What fell is the exclusivity of the compartments.

Why it matters here. Three things follow for preventive detention, and they are the whole reason this chapter exists.

The three consequences for this subject

1. Article 22 is no longer a complete code. A detention statute must now satisfy articles 14 and 21 as well as article 22. That is the death of the Gopalan reading, and it is what allows a court to ask whether a procedure is fair rather than merely whether it exists.

2. The procedure must be right, just and fair. So the judicial glosses that make up chapters 290 to 350 are not judicial invention: they are the content of the fairness requirement applied to detention. The rule that grounds must be intelligible to the detenu, that the material relied on must be supplied, that a representation must be considered without unexplained delay, and that a mechanical order discloses no satisfaction, are all applications of it.

3. Arbitrariness is itself a ground. Article 14 strikes at arbitrariness in State action. A detention order made without application of mind, or on grounds that could not support it, is arbitrary and therefore bad, quite apart from any specific breach of article 22.

The golden triangle

The phrase students meet is the golden triangle, meaning articles 14, 19 and 21 read together. Its content after Maneka is this. A law depriving a person of personal liberty must:

be a law made by a competent legislature, which is the Gopalan requirement and survives;

prescribe a procedure that is right, just and fair, which comes from article 21 read with article 14;

not be arbitrary, which comes from article 14; and

satisfy the test of reasonableness in so far as it affects a freedom in article 19, since the articles are no longer mutually exclusive.

For preventive detention the fourth limb is the most contested, because a detention necessarily affects freedom of movement and of assembly, and Gopalan had held that irrelevant.

Why the case did not abolish preventive detention

An answer that stops at the last section will overstate the effect, and an examiner will notice.

Article 22(3)(b) is still in the Constitution. Maneka changes how Part III is read; it does not delete a clause. The ordinary safeguards remain withdrawn from a detenu.

Fairness is measured in context. The judgment itself says the reasonableness of a procedure is to be considered not in the abstract or on hypothetical considerations, such as whether there is a full-dressed hearing as in a court room trial, but in the context of the particular power. A detention procedure will therefore not be judged by the standards of a criminal trial.

Subjective satisfaction survives. Khudiram Das v. State of West Bengal, AIR 1975 SC 550, was decided before Maneka, but its reasoning about the impossibility of objectively assessing a prediction was not disturbed. A court still cannot weigh the sufficiency of the grounds.

So the accurate statement is that Maneka raised the floor without removing the exception. What it gave a detenu is a standard of fairness inside the article 22 scheme, and a court willing to enforce it.

A worked example

A detention statute provides that the grounds shall be served in English only, whatever the detenu's language, and that a representation may be made within seven days and not thereafter.

On Gopalan. Test against article 22. Clause (5) requires the grounds to be communicated and the earliest opportunity of representation to be afforded. English-only service arguably communicates them; a seven day window arguably affords an opportunity. On a strict reading, the statute passes.

After Maneka. The procedure must be right, just and fair. Grounds in a language the detenu cannot read do not communicate anything, and a seven day cut-off that operates regardless of when the detenu obtains the material is arbitrary. Both provisions face challenge under articles 14 and 21 read with article 22(5), and the rules developed in [Communicating the Grounds, and the Language the Detenu Understands] and [Delay in Deciding the Representation] are exactly this reasoning applied.

What it does NOT mean

It does not import American due process. The Court did not read "due process" into article 21. It reached a similar result by reading articles 14, 19 and 21 together, which is a different route and should be described as such. See [Due Process After Maneka].

It does not make every detention order reviewable on the merits. The satisfaction remains subjective.

It is not confined to passports. Its ratio is about how Part III is read, and it has been applied across the whole of constitutional law.

It did not overrule Gopalan by name. It held that the articles are not mutually exclusive, which removes the foundation of the earlier reading.

Quick revision

• Maneka Gandhi v. Union of India, AIR 1978 SC 597. Passport impounded under section 10(3)(c) of the Passports Act 1967 "in public interest"; reasons refused under section 10(5) "in the interest of the general public".
• The mere prescription of some kind of procedure cannot meet the mandate of article 21; the procedure must be fair, just and reasonable, not fanciful, oppressive or arbitrary.
• Equality and arbitrariness are sworn enemies; article 14 strikes at arbitrariness; reasonableness pervades article 14 like a brooding omnipresence; the article 21 procedure must be right and just and fair.
• Natural justice may be implied even where the statute is silent.
• Effect on this subject: article 22 is no longer a complete code; the procedure must be fair; arbitrariness is itself a ground.
• It did not abolish preventive detention: article 22(3)(b) stands, fairness is judged in context, and subjective satisfaction survives.

Test yourself

1. What was actually challenged in the case? The impounding of the petitioner's passport under section 10(3)(c) of the Passports Act 1967 in public interest, and the Government's refusal under section 10(5) to furnish the statement of reasons.

2. State the ratio in the Court's own terms. The mere prescription of some kind of procedure cannot meet the mandate of article 21; the procedure prescribed by law has to be fair, just and reasonable, and must answer the test of reasonableness in order to be in conformity with article 14, being right and just and fair and not arbitrary, fanciful or oppressive.

3. What does the case do to A.K. Gopalan? It destroys the compartment theory: the articles are not mutually exclusive, so article 22 is no longer a complete code and a detention law must also satisfy articles 14 and 21.

4. Does it mean a detention procedure must look like a criminal trial? No. The judgment says reasonableness is judged in context and not on hypothetical considerations such as a full-dressed hearing as in a court room trial.

5. Does it import due process into article 21? No. It reaches a comparable standard by reading articles 14, 19 and 21 together rather than by reading the American phrase into the Indian text.

Four things follow, and an answer should give all four.

1. The five defects are named. Vague, non-existent, not relevant, not connected or not proximately connected, and invalid for any other reason whatsoever. That last catch-all is very wide.

2. It applies only where there are two or more grounds. An order resting on a single ground that is defective still falls, because there is nothing to sever.

3. It operates by a deeming provision. The order is deemed to have been made separately on each ground, so the surviving ground is treated as an order in itself.

4. It applies to orders made before as well as after the 1984 amendment that inserted it, the section saying so in terms.

COFEPOSA 1974 contains a section 5A in the same terms, so the position under that Act is the same.

What section 5A does not cure

This is where the marks are, because the section is narrower than it looks.

It does not cure a defect that goes to the order rather than to a ground. If the authority was not empowered, or was not aware that the detenu was in custody, or never applied its mind at all, there is no valid satisfaction to sever.

It does not cure a breach of clause (5) in the communication. If the grounds were served late, or in a language the detenu cannot read, or without the documents relied on, the defect is in the communication and not in a ground, and severance is irrelevant.

It does not save an order where the surviving ground would not have produced the satisfaction. The deeming provision treats the order as made separately on each ground, which presupposes that the surviving ground is itself capable of supporting an order. A ground disclosing only a law and order problem cannot support an order made on the public order head, however many other grounds there are.

It does not apply where the statute has no such section. A State detention Act without an equivalent provision is governed by the old rule.

A worked example

The order against Prakash is made under section 3(2) of the National Security Act to prevent acts prejudicial to the maintenance of public order. The grounds served on him are four in number.

Ground 1. "The detenu is a person of criminal tendencies." Vague. It tells him nothing to answer.

Ground 2. A dispute with a neighbour over a boundary wall in 2021, in which he assaulted the neighbour. Irrelevant to public order, and stale.

Ground 3. An allegation that he led a mob that attacked a place of worship in March 2026, causing the locality to shut for two days. Good on its face.

Ground 4. An incident that the police record itself shows involved a different person of the same name. Non-existent as against him.

Result under the old rule. The whole order falls, because three grounds are bad and the composite satisfaction cannot be dissected.

Result under section 5A. The order is deemed made separately on each ground. Grounds 1, 2 and 4 fall away; ground 3 stands, and the order survives on it.

But two questions remain. Was the satisfaction genuinely formed, given that three of the four grounds were defective? A file of that quality invites the inference of non-application of mind. And does ground 3 by itself disclose a public order problem? On the concentric circles test it does, because the locality changed its behaviour.

Distinctions

What it does NOT mean

It does not mean vagueness no longer matters. A single vague ground in an order resting on that ground alone is still fatal, and vagueness across all the grounds shows there was nothing to be satisfied about.

It does not reverse the burden. The State must still show that the surviving ground is good.

It is not a general validating provision. It names five defects in grounds and does nothing else.

It is not in every detention statute. Check the Act.

Quick revision

• Defective grounds: vague, irrelevant, non-existent; also stale and showing no application of mind, treated separately.
• Old rule: one bad ground vitiates the whole order, because a composite subjective satisfaction cannot be dissected.
• NSA s.5A and COFEPOSA s.5A: where an order is made on two or more grounds it is deemed made separately on each, and is not invalid merely because one or some are vague, non-existent, not relevant, not connected or not proximately connected, or invalid for any other reason whatsoever.
• Section 5A does not cure a defect in the order itself or in the communication, and does not save an order whose surviving ground could not have supported it.
• A single-ground order remains subject to the old position, because there is nothing to sever.

Test yourself

1. What was the old rule about one bad ground? That it vitiated the entire order, because the satisfaction was composite and a court could not say how far the invalid ground had contributed to it.

2. What does section 5A of the National Security Act do? It deems an order made on two or more grounds to have been made separately on each, so that the order is not invalid merely because one or some of the grounds are vague, non-existent, not relevant, not connected or not proximately connected with the person, or invalid for any other reason whatsoever.

3. Does section 5A save an order resting on a single defective ground? No. It applies only where the order rests on more than one ground; where there is a single ground there is nothing to sever.

4. Does section 5A cure late service of the grounds? No. That is a defect in the communication under article 22(5) and section 8, not a defect in a ground.

5. Three of four grounds are bad and one is good. What two questions still arise? Whether the satisfaction was genuinely formed at all, given the quality of the material, and whether the surviving ground by itself falls within the statutory purpose on which the order was made.

3. Between the last ground and the satisfaction, where the ground is a criminal case. Where the incidents are the subject of prosecutions in which the detenu has been granted bail, the question is what changed between the bail and the order.

What saves a delay

Four explanations that courts accept, and each has to be on the record rather than in argument.

Absconding. If the man could not be found, the delay is his own doing. Section 7 provides the machinery and its use is evidence that the State was trying.

Continuing conduct. Where the grounds show a course of conduct continuing up to a recent date, an old first incident is part of a pattern rather than a stale ground.

The time genuinely taken to gather material. Investigations in economic offence cases take time, and where the file shows steady work the delay is explained.

Administrative steps that had to be taken. Approval, translation and service take time, and short periods so occupied are not unexplained.

What does not save a delay is a bare assertion that the file was under consideration.

A worked example

The order against Latha is made on 1 August 2026 under section 3(2) of the National Security Act on the public order ground. The grounds recite three incidents: a riot she is said to have led in June 2023, another in August 2023, and a third in July 2026.

Are the 2023 incidents stale? By themselves, yes. Three years is a long time to found a prediction, and nothing is said about the intervening period.

Does the July 2026 incident save the order? It does two things. It is itself a good ground, and it supplies the surrounding circumstances in which the 2023 incidents can be read: they become the earlier part of a pattern rather than isolated stale events.

What must the State still explain? The gap between August 2023 and July 2026. If the grounds or the affidavit show that she was outside the State, or in custody, or that the conduct continued in ways not separately charged, the pattern holds. If nothing is said, the two older grounds are liable to be treated as not proximately connected, and section 5A will sever them.

Change the facts. The order is made on 1 August 2026 and served on 20 March 2027, and nothing explains the seven months. On the second kind of delay, the order is vulnerable in its entirety: the necessity asserted in August is contradicted by seven months of inaction, and unless absconding or some other explanation is placed on the record the link is snapped.

What it does NOT mean

There is no fixed period. No case lays down a number of months, and an answer that asserts one is wrong. What matters is whether the gap is explained.

Old incidents are not inadmissible. They are the ordinary material of a propensity finding. What they cannot do is stand alone after a long silence.

Delay is not the same as staleness. Staleness is about the age of the grounds; delay is about the conduct of the authority. Both snap the link, and they can occur in the same case.

The rule is not a technicality. It goes to whether a preventive satisfaction was formed at all, which is the same question as in [Non-Application of Mind, and the Mechanical Order].

Quick revision

• The requirement is derived from the words of the power: "with a view to preventing" makes the order future-facing, and "necessary" makes it urgent.
• Khudiram Das, AIR 1975 SC 550: past conduct is judged in the light of the surrounding circumstances and other relevant material.
• NSA s.5A names a ground "not connected or not proximately connected with such person" as one of the severable defects.
• Three places delay occurs: between incidents and order; between order and execution; and between a bail order and the detention order.
• Explanations that work: absconding, with the section 7 machinery used; a continuing course of conduct; time genuinely taken to gather material; and short administrative periods.
• No fixed period; the question is whether the gap is explained, and the burden is the State's.

Test yourself

1. From what words is the live link requirement derived? From "with a view to preventing", which makes the order future-facing, and "necessary", which makes it urgent, in section 3 of the Act.

2. Is there a fixed period after which grounds become stale? No. What matters is whether the gap is explained, and the burden of explaining it lies on the State.

3. What machinery does the National Security Act provide where the detenu has absconded? Section 7 allows a report to a Metropolitan Magistrate or Judicial Magistrate of the first class, and an order requiring the person to appear, with the proclamation and attachment provisions of the criminal procedure law applying as if the detention order were a warrant.

4. Which words in section 5A recognise the live link? "Not connected or not proximately connected with such person", which is one of the five severable defects in a ground.

5. An order is made in January and served in September, with no explanation. What is the objection? That the necessity asserted in January is contradicted by eight months of inaction, so the link between the satisfaction and the detention is snapped, and unless absconding or another explanation is on the record the order cannot stand.

6. The satisfaction is somebody else's. The Act names the authority. Where the file shows that the decision was in substance taken by a subordinate or by another department, and the named authority merely signed, the statutory satisfaction was not formed.

7. The time taken is impossible. A file of several hundred pages considered and an order made the same hour invites the inference that it was not considered.

The related but distinct doctrine of dictation

Where the authority acted at the direction of a superior, the vice is not that it did not think but that it did not decide. The statute confers the power on a named authority, and a decision taken elsewhere is not that authority's. It is worth keeping the two apart in an answer: non-application of mind is an absence of consideration; acting under dictation is an absence of authorship.

What the State can do about it

Three things, and they explain why well-run detention files look the way they do.

Recite the material and deal with it. Grounds that summarise each item and say what is drawn from it are hard to attack.

Deal expressly with the obvious objection. Custody, delay, acquittal, the availability of prosecution.

Keep the record. The file, the note, the date and hour, and the officer's own signature on the reasoning rather than only on the order.

A worked example

The Commissioner of Police makes orders on the same day against four members of a group. The four sets of grounds are identical except for the names, and each recites: "You were involved in the incident dated 14 March 2026 at Bhiwandi in which a mob attacked shops, and you have thereby acted in a manner prejudicial to the maintenance of public order. It is noted that you are in custody and that you are likely to be released on bail."

The copying point. Four identical sets of grounds arising out of one incident are not by themselves fatal, because the four may have played identical parts. But the burden of explaining the identity is practically on the State.

The custody point. The recital shows awareness, which satisfies the first Kamarunnissa condition. It does not satisfy the second or third: there is nothing about a real possibility of bail on reliable material, and nothing about why detention is essential.

The individual role point. If the file shows that one of the four was named by a single witness and another was caught on camera leading the mob, identical grounds show that the differences were not considered, and that is a failure of mind as to the first man.

The result. The order against the man whose material differed is vulnerable. The others may survive, and the question then becomes whether the ground discloses a public order problem, which on these facts it does.

What it does NOT mean

It is not a review of the merits. The court does not weigh the material.

A short set of grounds is not by itself bad. Brevity is not the absence of thought.

An error of fact is not automatically fatal. It matters where it shows that the material was not read, or where the erroneous fact was itself the ground.

It is not confined to detention law. It is ordinary administrative law applied to a statutory satisfaction, and the same reasoning runs through the rest of Group I's papers.

Quick revision

• The merits question and the application of mind question are different: whether the material justified the conclusion, and whether a conclusion was reached on the material at all.
• Khudiram Das, AIR 1975 SC 550: no review of propriety or sufficiency; but the authority must exercise due care and caution and act fairly.
• Indicators: wrong statutory ground; failure to deal with an obvious objection such as custody; misdescription of the material; copied grounds; a conclusion the material cannot support; a satisfaction formed by somebody else; and an impossible timeline.
• Dictation is a separate vice: not absence of thought but absence of authorship.
• Kamarunnissa, AIR 1991 SC 1640, is the standard illustration through the custody condition.

Test yourself

1. How is this ground consistent with subjective satisfaction? Because it does not ask whether the authority was right. It asks whether the authority formed a satisfaction at all, which is a question about the existence of the condition of the power rather than about its merits.

2. What does Khudiram Das say the authority must do? Exercise due care and caution and act fairly, which is how that judgment explains the earlier observation that the power implies a quasi-judicial approach.

3. Give three indicators of a failure of mind. Any three of: reciting the wrong statutory ground; not dealing with the fact that the detenu is in custody; misdescribing the material; identical grounds served on several detenus; a conclusion the material cannot support; a satisfaction in substance formed by another officer; an impossible timeline.

4. How does acting under dictation differ? It is an absence of authorship rather than an absence of consideration: the decision was taken by someone other than the authority the statute names.

5. Are identical grounds served on several detenus automatically fatal? No, because they may have played identical parts, but the identity calls for explanation, and where the material against them differed the identity shows that the differences were not considered.

The elements of proper communication

Five, and they can be checked against any set of grounds.

1. In writing. The grounds must be served as a document. Oral communication is not communication for this purpose.
2. In a language the detenu understands. Not the official language, and not the language of the office that made the order.
3. In a script he can read, if he is literate. A Hindi speaker who reads Devanagari is not served by a Hindi text in Roman script.
4. Where he is illiterate, by a means that brings home effective knowledge. The rule is directed at knowledge, so for an illiterate detenu the requirement is met by whatever genuinely conveys the grounds, which will ordinarily mean reading them over and recording that it was done.
5. Within the statutory time. Ordinarily five days under section 8(1) of the National Security Act 1980, and up to fifteen only in exceptional circumstances and for reasons recorded in writing.

A worked example

Ravindra, whose only language is Marathi and who reads Devanagari, is detained in Aurangabad. The grounds are served in English on the third day. A police constable reads them out in Marathi and records that he has done so. On the tenth day Ravindra asks for a Marathi text and is refused.

Was there communication? No. On Harikisan, an oral translation at the time of service is not enough, and a literate detenu is entitled to the grounds in a script he can read.

Does the refusal on the tenth day matter? Yes, twice over. It confirms that no written translation was given, and it means that the fifteen day outer limit in section 8(1) has passed without compliance.

What is the consequence? The breach is of the constitutional imperative in article 22(5) and of a mandatory provision of the Act. The detention is illegal, and it is a plea that survives even a Presidential order under article 359, on Makhan Singh v. State of Punjab, AIR 1964 SC 381.

Change one fact. Ravindra is illiterate. Now the requirement is that effective knowledge be brought home to him, and reading the grounds over in Marathi, with a contemporaneous record of it, may satisfy that. The rule is not a fetish about paper; it is about knowledge.

Why the rule is strict

Because the two obligations in article 22(5) are linked. The purpose of communicating the grounds is to enable the detenu to make a representation, and a representation he cannot make because he does not know what is alleged is no representation at all. A rule about language is therefore a rule about the effectiveness of the only remedy the clause gives him.

That is also why the Court refused to treat the official language argument as an answer. The question is not what the State may lawfully write in; it is what this detenu can read.

What it does NOT mean

It does not require translation into every language the detenu knows. One language he understands, in a script he can read, is enough.

It does not require the order itself to be translated in every case. The constitutional obligation attaches to the grounds. In practice the order is served with them and is translated too.

It does not turn on the detenu's education. A detenu who is literate in Marathi and not in English is entitled to Marathi however well educated he is.

It is not cured by the detenu's lawyer understanding English. The right is the detenu's, and the representation is his.

Quick revision

• Article 22(5) "communicate" means bringing home to the detenu effective knowledge of the facts and grounds on which the order is based.
• Harikisan v. State of Maharashtra, AIR 1962 SC 911: grounds in English to a detenu who did not know English; oral translation at service and the official language argument both rejected; detention illegal.
• Literate detenu: a language he understands, in a script he can read.
• Lallubhai Jogibhai Patel v. Union of India, AIR 1981 SC 728: merely explaining the grounds in the mother tongue is not sufficient compliance; and constructive res judicata does not bar a fresh habeas corpus petition on new grounds.
• Time: ordinarily five days under NSA s.8(1), fifteen only on exceptional circumstances and recorded reasons.

Test yourself

1. What does "communicate" mean in article 22(5)? Bringing home to the detenu effective knowledge of the facts and grounds on which the order is based.

2. Is an oral translation at the time of service enough? No. Harikisan holds in terms that it is not.

3. Is service in the official language sufficient compliance? No. The question is what this detenu can understand and read, not what language the State may lawfully use.

4. What does Lallubhai Jogibhai Patel add about the mother tongue? That merely explaining the grounds in the detenu's mother tongue is not sufficient compliance; he is entitled to the grounds themselves in a language he understands.

5. Can a detenu file a second habeas corpus petition on a language point not taken in the first? Yes. On Lallubhai Jogibhai Patel, constructive res judicata is entirely inapplicable to an illegal detention and does not bar a fresh petition under article 32 on grounds not previously taken.

Why it matters here. It converts the abstract right in clause (5) into a working rule with a timetable, and it makes the burden the State's: an authority that withholds a document must be able to say that it was not relied on or that it was irrelevant.

The three categories, and which must be supplied

This is the framework that decides the cases, and it draws on Khudiram Das v. State of West Bengal, AIR 1975 SC 550, worked in [Subjective Satisfaction, and How Far a Court May Examine It].

Grounds. The conclusions of fact on which the satisfaction rests. Always to be communicated, under clause (5) itself.

Documents and materials relied upon. The material on which the authority acted in reaching those conclusions. Must be supplied, on Lallubhai Jogibhai Patel, because without it the representation cannot be effective.

Other particulars. Matter that did not form the basis of the satisfaction: the background of the circumstances in which the authority reached its satisfaction, or particulars administratively necessary for the State Government's supervisory function. Need not be supplied, on Khudiram Das.

The line between the second and third categories is the whole of the litigation, and the test is the same one every time: did the authority rely on it in forming the satisfaction? If yes, it must be supplied. If it was merely in the file, it need not be.

The interaction with clause (6)

Clause (6) permits the authority to withhold facts it considers it against the public interest to disclose. Where a document relied on contains such facts, the two rules meet.

The practical resolution, and the one to state in an answer, is that clause (6) permits redaction and withholding of the protected facts, not the withholding of the whole document, and it cannot be used to reduce the representation to a formality. See [Article 22(6): The Privilege Against Disclosure].

The burden

Lallubhai Jogibhai Patel places it on the State in a specific way: the respondent did not state that the documents which were not supplied were not relevant to the case of the detenu. The inference is that where a detenu identifies material that was before the authority and was not supplied, it is for the State to say either that it was not relied on or that it is irrelevant. Silence will not do.

That is a practical point of real value, because a detenu rarely knows what is in the file. What he can do is point to what the grounds refer to and ask for it.

A worked example

The grounds served on Nazia recite that she was intercepted at Nhava Sheva with undeclared foreign currency, that a panchnama was drawn, that her statement was recorded, and that two co-accused made statements implicating her. The panchnama and her own statement are supplied. The two co-accused statements are not.

Must they be supplied? Yes, if the authority relied on them, and the grounds say it did by referring to them. They are documents relied upon within Lallubhai Jogibhai Patel.

Can the State say they are confidential? It may invoke clause (6) in respect of facts whose disclosure would be against the public interest, but a co-accused's statement referred to in the grounds is not obviously such material, and the State would have to make and record that judgment.

What if the State simply does not respond? On Lallubhai Jogibhai Patel, the failure to say that the withheld documents were irrelevant to the detenu's case tells against the State.

And the timing? Ordinarily within five days of the order, and within fifteen only for exceptional reasons recorded in writing.

What it does NOT mean

It is not a right to inspect the whole file. Khudiram Das excludes other particulars.

It is not a right to material the authority did not use. The test is reliance.

It is not defeated by the volume of documents. In Lallubhai Jogibhai Patel 236 documents out of 460 were withheld, and the number was part of the complaint rather than an answer to it.

A second petition is not barred. Constructive res judicata does not apply to an illegal detention, so a detenu who discovers the non-supply later may petition again on that ground.

Quick revision

• All documents and materials relied upon by the detaining authority must be supplied as soon as practicable, to enable an effective representation. Lallubhai Jogibhai Patel v. Union of India, AIR 1981 SC 728, applying the earlier Icchu Devi Choraria decision reported at [1981] 1 SCR 640.
• Timetable: ordinarily within five days of the order; for exceptional reasons recorded, within fifteen days of the commencement of the detention.
• Three categories: grounds, always; documents relied on, must be supplied; other particulars, need not be, on Khudiram Das.
• The test is reliance, not presence in the file.
• The State must say that a withheld document was not relied on or was irrelevant; silence tells against it.
• Constructive res judicata does not bar a fresh habeas corpus petition on this ground.

Test yourself

1. State the rule about documents in one sentence. All the documents and materials relied upon by the detaining authority in passing the order must be supplied to the detenu as soon as practicable to enable him to make an effective representation.

2. Within what time? Ordinarily within five days of the order, and for exceptional reasons to be recorded within fifteen days of the commencement of the detention.

3. What is the test that separates material which must be supplied from material which need not be? Whether the authority relied on it in forming its satisfaction. Material merely in the file, or particulars of the background, need not be supplied on Khudiram Das.

4. Where the State withholds a document and says nothing about it, what follows? On Lallubhai Jogibhai Patel, the failure to state that the document was not relevant to the detenu's case tells against the State.

5. Does an earlier unsuccessful petition bar a fresh one on this ground? No. Constructive res judicata, being a rule of public policy, is entirely inapplicable to illegal detentions.

Why it matters here. The fourth principle is the one students most often get wrong. The Government's duty is not to wait for the Board. It must decide first, and the Board's role is subsequent and separate.

The chain of decisions, and where delay can occur

A representation may have to be considered by more than one authority, and delay at any link is fatal. Under the National Security Act 1980 the chain is this.

The detaining officer, where the order was made under section 3(3). He must forthwith report to the State Government with the grounds under section 3(4), and the order lapses after twelve days, or twenty where the grounds were served after five days but within fifteen, unless approved.

The State Government. It approves under section 3(4), reports to the Central Government within seven days under section 3(5), decides the representation made to it under section 8(1), and places the grounds and the representation before the Advisory Board within three weeks under section 10.

The Advisory Board. It reports within seven weeks under section 11.

The Central Government. It has an independent power of revocation under section 14(1)(a) and (b), so a representation addressed to it must be decided by it.

The rule to state in an answer is that each authority with a power to revoke must apply its own mind to a representation addressed to it, and unexplained delay at any stage vitiates the detention.

How delay is measured

Four working propositions.

There is no fixed number of days. Sukul says so in terms: no hard and fast rule can be laid down.

The State must explain the time it took. The burden is on the State to account for each period, and a bare assertion that the file moved is not an explanation.

Time spent on the Board is not an answer to delay by the Government. That is the second principle: the two are independent.

Time spent obtaining a report from a subordinate officer must itself be justified. In Sukul the State relied on an enquiry through the Superintendent, Railway Police, whose report was delayed, and that did not save it.

A worked example

Faisal is detained on 1 September and served with the grounds on 4 September. He makes a representation to the State Government on 10 September. The State Government places the grounds and the representation before the Advisory Board on 20 September. The Board reports on 15 October. The State Government rejects the representation on 20 October and confirms the detention on 22 October.

Is the reference to the Board in time? Yes. Three weeks from 1 September is 22 September.

Is the Board's report in time? Yes. Seven weeks from 1 September is 20 October.

Is the detention nonetheless bad? Yes, on Sukul's fourth principle. The State Government did not decide the representation before sending the case to the Board; it decided on 20 October, after the Board reported. The consideration is entirely independent of the Board's action, and the Government must form its own opinion first.

What if the Government had rejected the representation on 15 September and then sent the case on 20 September? That would satisfy the fourth principle, and the remaining question would be whether five days is an unexplained delay, which on these facts it plainly is not.

What it does NOT mean

It does not require a reasoned order on the representation. What is required is that the mind be applied and the decision taken with expedition.

It does not mean the Board's favourable report obliges the Government to detain. Under section 12(1) the Government may confirm, and Sukul's fourth principle records that even after an adverse opinion of the Board on release the Government may still release the detenu.

It is not confined to the State Government. Any authority with a power to revoke that receives a representation must decide it.

It does not make a short delay fatal by itself. What is fatal is delay that is unexplained, and the explanation is the State's to give.

Quick revision

• Jayanarayan Sukul v. State of West Bengal, AIR 1970 SC 675: four principles.
• One, opportunity to represent and consideration as early as possible.
• Two, the Government's consideration is entirely independent of any action by the Advisory Board.
• Three, no delay; no hard and fast rule as to time, but the Government must be vigilant, and the right would be meaningless if the Government acted at its own sweet will and convenience.
• Four, the Government must form its own opinion before sending the case and the representation to the Board; it may release without going to the Board; and even after an adverse Board opinion it may still release.
• The chain under the NSA: detaining officer's report and approval within twelve or twenty days; State Government's report to the Centre within seven days; representation decided; Board within three weeks; report within seven weeks; Central Government's independent power under section 14.

Test yourself

1. Give the four principles in Sukul. Opportunity and early consideration; the Government's consideration is independent of the Board's; no delay, with vigilance required though no fixed period is laid down; and the Government must form its own opinion before sending the case to the Board.

2. Can the Government wait for the Advisory Board's report before deciding the representation? No. The two are entirely independent, and the Government must decide first.

3. Is there a fixed number of days within which a representation must be decided? No. No hard and fast rule can be laid down, but every period must be explained by the State.

4. If the Board reports against release, must the Government detain? No. Section 12(1) is permissive, and Sukul records that the Government may still release the detenu.

5. Which authorities may have to decide a representation under the National Security Act? The appropriate Government to which it is addressed under section 8(1), and the Central Government, which has an independent power of revocation under section 14, so that a representation addressed to it must be decided by it.

The Court could not issue a mandamus to the Central Government obliging it to bring section 3 of the 44th Amendment into force. Parliament having left that question to the unfettered judgment of the Central Government, it is not for the Court to compel the Government to do what, according to the mandate of Parliament, lies in its discretion to do when it considers it opportune. The executive is responsible to Parliament, and if Parliament considers that the executive has betrayed its trust it can censure the executive; it would be anomalous that the inaction of the executive should have the approval of Parliament and yet the Court should show its disapproval by mandamus.

The Court nonetheless recorded that in leaving commencement to the Government's judgment Parliament could not have intended that the Government might exercise a kind of veto over its constituent will by never bringing a provision into force, and that Parliament having seen the necessity of a provision like section 3, it is not open to the Central Government to sit in judgment over the wisdom of its policy.

On representation before the Board: a detenu has no right to appear through a legal practitioner in the proceedings before the Advisory Board, and the reason behind article 22(3)(b) is that a legal practitioner should not be permitted to appear before the Board for any party. The Constitution does not contemplate that the detaining authority or the Government should have the facility of a legal practitioner while the detenu is denied it, and permitting the one and denying the other would be in breach of article 14. Therefore if the detaining authority or the Government takes the aid of a legal practitioner or a legal adviser before the Board, the detenu must be allowed the facility of appearing through a legal practitioner. And the embargo should not be extended so as to prevent the detenu from being aided or assisted by a friend who, in truth and substance, is not a legal practitioner: every person whose interests are adversely affected by proceedings of serious import is entitled to be heard in them and to be assisted by a friend.

Why it matters here. Three separate things. It settles that an Ordinance is law for article 21, which matters because detention statutes are often introduced by Ordinance. It is the leading authority on the commencement of a constitutional amendment, and the reason section 3 of the 44th Amendment can remain unnotified for decades. And it defines what the Advisory Board hearing actually is.

What the Board is worth, honestly assessed

Five points, and an answer that makes them is doing more than reciting the Act.

1. Its composition is chosen by the detaining Government. Section 9(2) of the National Security Act leaves the appointment to the appropriate Government, and article 22(4) as it stands allows persons merely qualified for appointment as High Court judges.

2. It sees only what the Government places before it. Section 10 requires the Government to place the grounds and the representation. The Board may call for further information, but it has no independent investigative machinery.

3. It sits in confidence. Section 11(4) makes the proceedings and the report confidential except for the part stating the opinion. Neither the detenu nor the public learns the reasoning.

4. Its favourable report is permissive and its adverse report is binding. Under section 12(1) a favourable report allows the Government to confirm; under section 12(2) an adverse report requires release. That asymmetry is the Board's real value: it cannot force a detention, only stop one.

5. It is not a substitute for a court. It reports on sufficiency of cause. It does not decide legality, and the High Court's jurisdiction on habeas corpus is untouched.

The commencement point, which is the most examinable part

MU asks about the 44th Amendment on four of the nine papers. A.K. Roy is the authority for the proposition that a provision of a constitutional amendment may remain unnotified indefinitely, and it explains why.

The mechanism is section 1(2) of the Amendment Act itself: Parliament chose to leave commencement to the Central Government and to allow different dates for different provisions. Having done so, it left the Government with a discretion the Court would not control by mandamus.

The Court's own discomfort is on the record, and a student should quote it: Parliament could not have intended that the Government might exercise a kind of veto over its constituent will, and it is not open to the Government to sit in judgment over the wisdom of Parliament's policy. But discomfort is not a remedy, and the amendment remains unnotified more than four decades later.

The consequence for a student is exact: when writing about article 22(4), state the law as three months and a Board of persons qualified for appointment, and then state what section 3 would change and that it has never been notified, citing A.K. Roy. That is a complete answer and it is the one an examiner is looking for.

A worked example

Before an Advisory Board in Mumbai, the State is represented by a Government Pleader who addresses the Board on the material. The detenu appears alone and asks to be represented by an advocate.

Can he be refused? Not on these facts. On A.K. Roy, where the detaining authority or the Government takes the aid of a legal practitioner or legal adviser, the detenu must be allowed the facility of appearing through a legal practitioner, because to permit one and deny the other would breach article 14.

Change the facts. No lawyer appears for the State, and an officer places the file before the Board. The detenu asks for an advocate.

Now? He may be refused. Section 11(4) provides that nothing in that section entitles him to appear by a legal practitioner, and A.K. Roy holds there is no right. But he may ask to be assisted by a friend who is not in truth a legal practitioner, and on A.K. Roy that should be allowed.

What it does NOT mean

It does not mean the National Security Act is beyond challenge. A.K. Roy upheld the Act; it did not immunise orders made under it, and almost all the litigation in this book is about orders rather than about the Act.

It does not mean an Ordinance is as good as an Act in every respect. It means an Ordinance is law for the purposes of article 21. Its life is limited by article 123 and it must be laid before Parliament.

It does not mean a court can never compel commencement. The Court's reasoning turned on Parliament having left commencement to the Government's unfettered judgment. Where a statute fixes an objective standard to guide that discretion, the position may differ, and the judgment says as much.

It does not make the Board a court. It makes the Board a body that must act fairly within a scheme the Constitution designed to be less than a trial.

Quick revision

• A.K. Roy v. Union of India, AIR 1982 SC 710. Chandrachud C.J., Bhagwati and Desai JJ., Gupta and Tulzapurkar JJ. dissenting in part.
• An Ordinance under article 123 is a legislative act, so it is law for article 21.
• No mandamus to bring section 3 of the 44th Amendment into force: Parliament left commencement to the Central Government's unfettered judgment.
• But the Government may not exercise a veto over Parliament's constituent will, and may not sit in judgment on the wisdom of its policy.
• No right to a legal practitioner before the Advisory Board; equality if the State uses one; assistance by a friend who is not a legal practitioner allowed.
• The Board: appointed by the detaining Government, sees what the Government places before it, sits in confidence, its adverse report binds and its favourable report only permits.

Test yourself

1. Why could the Court not order the Government to bring section 3 of the 44th Amendment into force? Because section 1(2) of that Amendment Act left commencement to such date as the Central Government might appoint, so Parliament had committed the question to the Government's unfettered judgment, and the executive's accountability for that inaction lies to Parliament rather than to the Court.

2. Is an Ordinance "law" for the purposes of article 21? Yes. The President's power under article 123 is legislative and not executive, so an Ordinance is law.

3. When may a detenu appear by a lawyer before an Advisory Board? Where the detaining authority or the Government takes the aid of a legal practitioner or legal adviser, because permitting one and denying the other would breach article 14. There is otherwise no right.

4. May a detenu be assisted by a friend before the Board? Yes, where the friend is not in truth a legal practitioner. The embargo in article 22(3)(b) is not to be extended so far.

5. What is the asymmetry in section 12 of the National Security Act, and why does it matter? A favourable report merely permits the Government to confirm, while an adverse report obliges it to revoke and release. The Board can therefore stop a detention but cannot compel one, and that is where its value lies.

Why it matters here. It states the three conditions in a form that can be applied, and its second holding qualifies the document rule in [The Documents Relied On, and the Right to an Effective Representation] in an important way: prejudice matters.

The three conditions, applied

1. Awareness of the custody. The order or the grounds must show that the authority knew the man was in jail. An order that reads as though he were at large discloses no application of mind to the very fact that makes the order questionable.

2. Real possibility of release, and probability of prejudicial activity on release. Two limbs, both to be founded on reliable material placed before the authority. It is not enough to say that bail applications are usually granted. There must be material, and the belief must be about this man.

3. Detention felt essential. The authority must have concluded that nothing short of a detention order will answer the case.

An order that satisfies none of these is bad. An order that recites all three formulaically, with nothing in the material to support them, is bad for non-application of mind, on which see [Non-Application of Mind, and the Mechanical Order].

How this fits the two competing lines

Students often meet two apparently opposed propositions: that a detention order cannot be made against a person in custody, and that it can. Both come from real cases, and the reconciliation is Kamarunnissa.

The proposition that it cannot be made is a shorthand for the case where the authority did not know of the custody, or gave no thought to bail, or used the order as a substitute for opposing bail. The proposition that it can be made is a shorthand for the case where the three conditions are satisfied.

The correct statement of the law is the three conditions, and an answer that gives them will not be caught out by either shorthand.

The prejudice qualification on documents

Kamarunnissa's second holding is worth separating out because it is frequently misapplied in both directions.

What it does not do. It does not weaken the rule in Lallubhai Jogibhai Patel v. Union of India, AIR 1981 SC 728, that documents and materials relied on must be supplied.

What it does. It answers the different argument that any document mentioned anywhere in the grounds must be supplied on pain of invalidity. The detenu must show that the failure impaired or prejudiced his right to make an effective and purposeful representation, and the test moment is before the meeting of the Advisory Board.

How to state both. Documents relied on must be supplied; a complaint about non-supply succeeds where the omission impaired the representation, and the threshold of prejudice is low, however slight or insignificant.

A worked example

Salim is arrested on 3 May and remanded to judicial custody in a case under the customs law. On 12 May a detention order under COFEPOSA is served on him in jail. The grounds recite the seizure, state that he is in judicial custody, and add: "It is noted that the offence is bailable and that in similar cases bail has been granted, and there is every likelihood of his being released and resuming his activities."

Condition one? Satisfied. The grounds say he is in custody.

Condition two? Partly. The reference to bail in similar cases is thin, and the second limb, that this man would in all probability resume prejudicial activity, needs material about him. If the file contains his earlier involvement, that will do; if it contains nothing, the order is vulnerable.

Condition three? The grounds should say why nothing short of detention will answer, for example that opposing bail has failed before.

And the non-application of mind point? In Kamarunnissa itself the detenus argued that describing the offence as bailable showed non-application of mind. Whether such a description betrays a failure of mind depends on whether it is accurate on the facts, and the argument is one to make on the material rather than in the abstract.

What it does NOT mean

It does not mean an order may be made whenever a bail application is pending. The material must show a real possibility of release and a probability of prejudicial activity thereafter.

It does not turn on the outcome of the bail application. The question is the state of the authority's satisfaction when the order was made.

It does not authorise detention as a means of defeating a bail order. That is the very abuse the three conditions exist to expose.

It does not dilute the document rule. It adds a requirement of prejudice to a complaint about non-supply.

Quick revision

• Kamarunnissa v. Union of India, AIR 1991 SC 1640. Three conditions for detaining a person already in custody: awareness of the custody; reason to believe on reliable material that there is a real possibility of release on bail and that on release he would in all probability indulge in prejudicial activity; and that detention is felt essential to prevent it.
• Second holding: non-supply of documents must be shown to have impaired the right to make an effective and purposeful representation; a demand for any and every document merely because it is referred to in the grounds does not vitiate an otherwise legal order; the test moment is before the meeting of the Advisory Board; and the prejudice may be slight.
• The two shorthand propositions, that such an order cannot and can be made, are reconciled by the three conditions.

Test yourself

1. Give the three conditions. Awareness that the person is actually in custody; reason to believe on reliable material that there is a real possibility of release on bail and that on release he would in all probability indulge in prejudicial activity; and that it is felt essential to detain him to prevent that.

2. Is a bare recital that the detenu is in custody enough? No. The recital satisfies the first condition only, and the second and third must be founded on reliable material placed before the authority.

3. What did Kamarunnissa add about documents? That non-supply must be shown to have impaired the detenu's right to make an effective and purposeful representation, and that a demand for any and every document merely because it is referred to in the grounds cannot vitiate an otherwise legal order.

4. By what moment must the documents have been supplied on that test? Before the meeting of the Advisory Board.

5. Why is such an order suspect in principle? Because a man already in jail is already prevented, so an order made in that situation invites the inference that its purpose is to defeat bail rather than to prevent future conduct.

The distinction matters. Revocation ends the detention. Temporary release suspends it. A person on temporary release remains under the order and can be required back without a fresh order.

A second order on the same facts

Section 14(2) provides that the expiry or revocation of an earlier order does not bar a subsequent order under section 3 against the same person, and it says so whether the earlier order was made before or after the 1984 amendment that inserted the sub-section.

That is the statute's answer to an obvious device: a Government that has run out of time under section 13, or whose order has been revoked, cannot be prevented from acting again merely by the fact of the earlier order.

But the power is not unlimited, and the limits come from the general law rather than from the sub-section.

A fresh order needs a fresh satisfaction. The authority must be satisfied anew, on material before it at that time. An order that simply repeats the earlier grounds shows that no fresh satisfaction was formed, which is the objection in [Non-Application of Mind, and the Mechanical Order].

The live link must exist at the date of the new order. Grounds that were proximate when the first order was made may be stale when the second is. See [The Live Link, and Delay in Passing the Order].

A revocation for illegality is not the same as an expiry. Where the first order was quashed by a court because it was bad, the State cannot cure the illegality by making an identical order. It must act on material that meets the objection.

The maximum period is not restarted at will. Section 13 runs from the date of detention under the order in question, so a second order does begin a fresh period; but a pattern of successive orders on the same facts is itself evidence that the power is being used to evade the maximum, and that is a ground of challenge on the general principle that a statutory limit may not be defeated by a device.

A worked example

Anwar is detained on 1 May 2026 under section 3(2). On 1 August the High Court quashes the order because the grounds were served in a language he cannot read. On 5 August a fresh order is made, on identical grounds, and this time the grounds are served in Urdu.

Is the fresh order barred? Not by section 14(2), which expressly preserves the power.

Is it good? Two questions. First, was a fresh satisfaction formed? If the file shows only that the earlier order was reissued with a translation, the answer is no, and the second order fails for the same reason as an order made without application of mind. Second, is the live link intact? Three months have passed, and if nothing has happened since, the State must explain why the necessity persists.

Change the facts. The first order expires by efflux of the twelve month maximum on 30 April 2027, and on 1 May 2027 a fresh order is made on the same grounds. Now the objection is stronger: the pattern shows the power being used to extend a period Parliament has fixed, and the State would have to show new material.

What it does NOT mean

Revocation is not an acquittal. It ends the detention and decides nothing about the merits.

Section 14(2) is not a licence. It removes a bar; it supplies no satisfaction.

Temporary release is not parole in the criminal law sense. It is an executive indulgence under a detention order that remains in force.

The Central Government's power to revoke does not make it the appellate authority. It is a parallel power, and its existence is why a representation to it must be decided by it.

Quick revision

• NSA s.14(1): revocation or modification at any time, by the officer under General Clauses Act s.21, by the State Government over its officer's order, and by the Central Government over any order including a State's.
• s.12(2): revocation is compulsory and release forthwith where the Board reports no sufficient cause.
• s.13: twelve months maximum, with a proviso preserving earlier revocation.
• s.15: temporary release suspends rather than ends the detention; failure to surrender carries up to two years.
• s.14(2): expiry or revocation of an earlier order does not bar a subsequent one, but a fresh order needs a fresh satisfaction, a live link at its own date, and material meeting the defect that felled the first.

Test yourself

1. Who may revoke an order made by a Commissioner of Police under section 3(3)? The Commissioner himself under section 21 of the General Clauses Act, the State Government to which he is subordinate, and the Central Government.

2. When is revocation compulsory? Under section 12(2), where the Advisory Board reports that there is no sufficient cause for the detention; the Government shall revoke and release the person forthwith.

3. What is the difference between revocation and temporary release? Revocation ends the detention; temporary release suspends it, the order remaining in force, so the person can be required to surrender without a fresh order.

4. Does the quashing of an order bar a fresh one? No, on section 14(2), but the fresh order needs a fresh satisfaction formed on material that meets the objection which felled the first, and the live link must exist at the date of the new order.

5. What is the objection to a series of successive orders on the same facts? That the power is being used to defeat the maximum period Parliament has fixed, which is a device rather than an exercise of the statutory power.

Section 3(2). The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State, or from acting in any manner prejudicial to the maintenance of public order, or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community, it is necessary so to do, make an order directing that such person be detained.

The Explanation to section 3(2) excludes from "supplies and services essential to the community" the maintenance of supplies of commodities essential to the community as defined in the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act 1980, and provides that no order shall be made under this Act on any ground on which an order may be made under that Act. Two detention statutes are thus kept from overlapping.

Section 3(3): delegation. Where, having regard to the circumstances prevailing or likely to prevail in an area within the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary, it may by order in writing direct that during such period as is specified that officer may also exercise the powers in sub-section (2). The period shall not in the first instance exceed three months, extendable by the State Government from time to time by periods not exceeding three months at a time.

Section 3(4): report and approval. An officer acting under sub-section (3) must forthwith report the fact to the State Government with the grounds and other relevant particulars, and no such order shall remain in force for more than twelve days unless approved by the State Government in the meantime. Where under section 8 the grounds are communicated after five days but not later than fifteen days, the twelve days becomes twenty days.

Section 3(5): report to the Centre. Where an order is made or approved by a State Government, it must within seven days report the fact to the Central Government with the grounds and other particulars bearing on the necessity for the order.

Sections 4 and 5: execution, place and conditions

Section 4. A detention order may be executed at any place in India in the manner provided for the execution of warrants of arrest under the criminal procedure law.

Section 5. Every person in respect of whom an order has been made is liable to be detained in such place and under such conditions, including conditions as to maintenance, discipline and punishment for breaches of discipline, as the appropriate Government may specify by general or special order; and to be removed from one place of detention to another, whether within the same State or in another State, by order of the appropriate Government. A proviso requires the consent of the other State Government before a State Government may remove a person to another State.

Section 5A: grounds severable

Inserted by the National Security (Second Amendment) Act 1984. Where an order is made on two or more grounds, it is deemed to have been made separately on each, and is not invalid merely because one or some of the grounds are vague, non-existent, not relevant, not connected or not proximately connected with the person, or invalid for any other reason whatsoever. Worked in [The Grounds of Detention: Vague, Irrelevant and Stale].

Sections 6 and 7: validity and absconders

Section 6. No detention order is invalid or inoperative merely because the person to be detained is outside the territorial jurisdiction of the Government or officer making the order, or because the place of detention is outside those limits.

Section 7. Where the Government or an officer under section 3(3) has reason to believe that a person against whom an order has been made has absconded or is concealing himself so that the order cannot be executed, it may report the fact in writing to a Metropolitan Magistrate or Judicial Magistrate of the first class having jurisdiction where he ordinarily resides, and may by order notified in the Official Gazette direct him to appear before a specified officer at a specified place within a specified period. On such a report, the proclamation and attachment provisions of the criminal procedure law apply as if the detention order were a warrant issued by the Magistrate. Failure to comply with a gazetted direction is punishable with imprisonment up to one year, or fine, or both, unless the person proves that compliance was impossible and that he informed the officer within the period of the reason and of his whereabouts. Such an offence is cognizable notwithstanding the criminal procedure law.

Section 7 matters beyond its own terms: its use is the ordinary way a State explains delay between the making and the execution of an order, on which see [The Live Link, and Delay in Passing the Order].

Section 8: grounds and representation

Set out and worked in [Article 22(5): The Grounds and the Right of Representation]. In short: grounds as soon as may be, ordinarily within five days, in exceptional circumstances and for reasons recorded in writing within fifteen days; the earliest opportunity of representation to the appropriate Government; and no obligation to disclose facts the authority considers against the public interest to disclose.

The six grounds, and which legislature they come from

A worked example

A District Magistrate, empowered by a written order of the State Government made on 1 February 2026 and expressed to be in force for three months, detains Ravi on 20 April 2026 to prevent him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community.

Is the District Magistrate empowered? Only if the State Government's order was in force on 20 April. An order made on 1 February for three months expires on 30 April, so the order is within it; had he acted on 5 May he would have had no power at all.

Is the ground available to him? Yes. The maintenance of supplies and services essential to the community is one of the grounds a State may use, being within Entry 3 of the Concurrent List.

Which grounds could he not have used? The defence of India, the relations of India with foreign powers, and the security of India, which are Entry 9 matters belonging to the Union.

What must the State Government do? Section 3(4) requires the officer to report the fact forthwith to the State Government with the grounds and the particulars, and the order does not remain in force beyond twelve days unless approved by the State Government.

And if the ground had been the security of India? The order would be bad, not because a District Magistrate can never be empowered, but because he may be empowered only for the grounds within a State's competence.

When must the grounds be served? Under section 8 as soon as may be, ordinarily within five days, and in exceptional circumstances for reasons recorded within ten to fifteen days as the section provides.

What it does NOT mean

The Act does not define national security. It is named for it and never uses it as a test.

A District Magistrate does not have the power by virtue of his office. He needs a written order of the State Government under section 3(3), for a period not exceeding three months in the first instance.

Section 3(1) is not available to a State, by its own authority, for the first three of the grounds listed above. The sub-section names both Governments, but a State exercising it is exercising a power under a Union Act made under Entry 9, not a power of its own.

Section 6 does not extend the grounds. It removes a technical objection about territorial limits.

Quick revision

• National Security Act 1980, Act 65 of 1980, extends to the whole of India, and to Jammu and Kashmir since 31 October 2019.
• s.3(1): defence of India, relations with foreign powers, security of India; and a foreigner's continued presence or expulsion.
• s.3(2): security of the State, maintenance of public order, maintenance of supplies and services essential to the community, with the blackmarketing Explanation.
• s.3(3): delegation to a District Magistrate or Commissioner of Police by written order, three months at a time. s.3(4): forthwith report, twelve days or twenty. s.3(5): report to the Centre within seven days.
• s.4 execution as a warrant; s.5 place, conditions and transfer with the other State's consent; s.5A severability; s.6 territorial objections removed; s.7 absconders and the proclamation machinery; s.8 grounds and representation.

Test yourself

1. How many grounds does section 3 contain, and how are they divided? Six substantive grounds plus the foreigner provision: three in sub-section (1), resting on Entry 9 of the Union List, and three in sub-section (2), resting on Entry 3 of the Concurrent List.

2. For how long may a State Government empower a District Magistrate under section 3(3)? For such period as it specifies, not exceeding three months in the first instance, extendable from time to time by periods not exceeding three months at a time.

3. How long does an order made by a District Magistrate remain in force without approval? Twelve days, or twenty days where the grounds were communicated after five days but not later than fifteen.

4. What does the Explanation to section 3(2) do? It excludes blackmarketing in essential commodities as defined in the 1980 Act of that name, and provides that no order shall be made under this Act on a ground on which an order may be made under that Act.

5. What happens when a detenu absconds? Section 7 allows a written report to a Magistrate and a gazetted direction to appear; the proclamation and attachment provisions of the criminal procedure law then apply as if the detention order were the Magistrate's warrant, and non-compliance is a cognizable offence punishable with up to one year, fine, or both.

Sub-section (4). Nothing in the section entitles the person against whom an order has been made to appear by any legal practitioner in any matter connected with the reference to the Board; and the proceedings of the Board and its report, excepting that part in which the opinion is specified, shall be confidential.

The qualifications A.K. Roy v. Union of India, AIR 1982 SC 710, placed on sub-section (4) are worked in [The Advisory Board in Practice, and A.K. Roy].

Section 12: what follows the report

Sub-section (1). Where the Board has reported that there is sufficient cause, the appropriate Government may confirm the order and continue the detention for such period as it thinks fit.

Sub-section (2). Where the Board has reported that there is no sufficient cause, the appropriate Government shall revoke the order and cause the person to be released forthwith.

The asymmetry is the Board's real value: it can stop a detention and it cannot compel one.

Section 13: the maximum

The maximum period for which a person may be detained under an order confirmed under section 12 is twelve months from the date of detention, with a proviso preserving the power of the appropriate Government to revoke or modify the order at any earlier time.

Section 14: revocation, and a second order

Sub-section (1). Without prejudice to section 21 of the General Clauses Act 1897, a detention order may at any time be revoked or modified: notwithstanding that it was made by an officer under section 3(3), by the State Government to which he is subordinate or by the Central Government; and notwithstanding that it was made by a State Government, by the Central Government.

That is worth noticing. The Central Government can revoke a State's order. A representation addressed to it must therefore be decided by it, which is the point made in [Delay in Deciding the Representation].

Sub-section (2). The expiry or revocation of an earlier detention order does not bar the making of a subsequent order under section 3 against the same person. The conditions on that power are worked in [Revocation, and a Second Detention on the Same Facts].

Sections 15 to 18

Section 15: temporary release. The appropriate Government may at any time direct that a detenu be released for a specified period, with or without conditions he accepts, and may cancel the release. It may require a bond with or without sureties. The person must surrender at the time and place and to the authority specified. Failure to surrender without sufficient cause is punishable with imprisonment up to two years, or fine, or both. Breach of a condition or of the bond makes the bond liable to be forfeited.

Section 16: protection of action taken in good faith. No suit or other legal proceeding shall lie against the Central Government or a State Government, and no suit, prosecution or other legal proceeding shall lie against any person, for anything in good faith done or intended to be done in pursuance of the Act.

Section 17: State laws. Nothing in the Act applies to or has any effect with respect to orders of detention made under any State law which were in force immediately before the commencement of the National Security Ordinance 1980.

Section 18: repeal and saving, repealing the Ordinance and saving what was done under it.

The timetable, as dates

For a detention beginning on 1 April:

by 22 April, reference to the Advisory Board under section 10, three weeks;

by 20 May, the Board's report under section 11, seven weeks;

by 30 June, the constitutional three month limit in article 22(4), by which the Board must have reported sufficient cause;

at any time, revocation by the State or the Central Government under section 14, and temporary release under section 15;

not beyond 31 March of the following year, the twelve month maximum in section 13.

A worked example

An order is made by a Commissioner of Police on 1 April under section 3(3). Grounds are served on 5 April. The State Government approves on 14 April. It refers the case to the Board on 30 April. The Board reports on 2 June that there is sufficient cause. The State Government confirms on 5 June and fixes twelve months.

Approval. Within twelve days of 1 April is 13 April, and the grounds were served within five days, so the twenty day extension does not apply. Approval on 14 April is one day late, and the order lapsed on 13 April. That is fatal, and no later step cures it.

Reference. 30 April is beyond three weeks from 1 April, which was 22 April. A second breach.

The Board's report. 2 June is within seven weeks of 1 April, which was 20 May. A third breach.

And the three month rule. Even a report of 2 June is before 30 June, so article 22(4) is satisfied on timing.

The example is deliberately constructed so that the constitutional limit is met and the statutory timetable is breached three times. That is the common pattern in real cases, and it is why an answer should work the statute rather than only the article.

What it does NOT mean

The Board does not confirm the detention. It reports; the Government confirms.

Twelve months is not a term. It is a maximum, and the Government may revoke at any time.

Section 16 does not bar habeas corpus. It protects against suits and prosecutions for things done in good faith. It does not oust the writ jurisdiction, which is a constitutional jurisdiction.

Temporary release is not bail. It is an executive indulgence on conditions the detenu accepts, revocable at any time, with a criminal sanction for failing to surrender.

Quick revision

• s.9: Boards constituted whenever necessary; three members who are, have been, or are qualified to be High Court Judges; appointed by the appropriate Government.
• s.10: reference within three weeks, comprising the grounds, the representation and the section 3(4) report.
• s.11: report within seven weeks; opinion in a separate part; majority prevails; no legal practitioner; proceedings and report confidential except the opinion.
• s.12: favourable report, Government may confirm; adverse report, Government shall revoke and release forthwith.
• s.13: twelve months maximum from the date of detention.
• s.14: revocation at any time, by the State Government or by the Central Government, and a second order is not barred by the expiry or revocation of an earlier one.
• s.15 temporary release, two years for failure to surrender; s.16 good faith protection; s.17 pre-1980 State orders untouched; s.18 repeal and saving.

Test yourself

1. Give the three statutory periods. Reference to the Board within three weeks of the date of detention; the Board's report within seven weeks of the date of detention; and a maximum of twelve months from the date of detention for a confirmed order.

2. What three things must be placed before the Board? The grounds on which the order was made, the representation if any made by the person affected, and, where the order was made by an officer under section 3(3), that officer's report under section 3(4).

3. Who may revoke an order made by a State Government? The State Government itself, and also the Central Government, under section 14(1)(b).

4. Does section 16 prevent a detenu from moving the High Court? No. It bars suits, prosecutions and other legal proceedings for things done in good faith under the Act; it does not oust the constitutional writ jurisdiction.

5. What is the punishment for failing to surrender after a temporary release? Imprisonment which may extend to two years, or fine, or both, unless the failure was with sufficient cause.

Section 3: the power

Who may detain. The Central Government, a State Government, any officer of the Central Government not below the rank of a Joint Secretary specially empowered for the purposes of the section, or any officer of a State Government not below the rank of a Secretary specially empowered.

That is wider than the National Security Act, where under section 3(3) only a District Magistrate or Commissioner of Police may be empowered, and then only by a written order for a limited period.

On what satisfaction. That with a view to preventing the person, including a foreigner, from acting in any manner prejudicial to the conservation or augmentation of foreign exchange, or with a view to preventing him from

(i) smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping them, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods,

it is necessary so to do.

The proviso. No order of detention shall be made on any of the grounds specified in the sub-section on which an order may be made under section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988. The two Acts are thus kept apart, in the same way that the National Security Act is kept apart from the blackmarketing Act.

Section 3(2). Where an order is made by a State Government or by an officer empowered by a State Government, the State Government must within ten days forward a report to the Central Government.

Section 3(3). For the purposes of article 22(5), the grounds must be communicated as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention.

The drafting of section 3(3) is worth noticing: it names the constitutional clause it is giving effect to.

Sections 4 to 7

Section 4: execution anywhere in India in the manner provided for warrants of arrest.

Section 5: place and conditions of detention.

Section 5A: grounds severable, in the same terms as section 5A of the National Security Act.

Section 6: no order invalid merely because the person or the place of detention is outside the territorial jurisdiction.

Section 7: absconding persons, with the same machinery of report to a Magistrate and gazetted direction.

Section 8: the Advisory Board

COFEPOSA gathers into one section what the National Security Act spreads over sections 9 to 12: the constitution of the Board, the reference, the Board's procedure and the action on its report. Its clause (f) is the confirmation provision to which sections 9(2) and 10 refer.

Section 9: detention beyond three months without a Board, and its sunset

This is the article 22(7)(a) provision, and it is spent. Section 9(1) applies only to a person in respect of whom an order is made at any time before the 31st day of July, 1999, and permits detention without the Board's opinion for longer than three months but not exceeding six months from the date of detention, where the order was made to prevent smuggling, abetting smuggling, or transporting, concealing or keeping smuggled goods, and the Central Government or an officer not below the rank of an Additional Secretary specially empowered is satisfied that the person smuggles or is likely to smuggle, abets or is likely to abet, or engages or is likely to engage in transporting, concealing or keeping smuggled goods into, out of or through an area highly vulnerable to smuggling, and makes a declaration to that effect within five weeks of the detention.

The definition of a highly vulnerable area, and the reason the section is now spent, are set out in [Article 22(7): What Parliament May Prescribe].

Section 10: the maximum period

For an order to which section 9 does not apply and which has been confirmed under section 8(f): one year from the date of detention, or the specified period, whichever expires later.

For an order to which section 9 does apply and which has been confirmed: two years from the date of detention, or the specified period, whichever expires later.

The Explanation defines specified period as the period during which the Proclamation of Emergency issued under article 352(1) on 3 December 1971 and the Proclamation issued under that clause on 25 June 1975 are both in operation. Both were revoked in March 1977, so the phrase is now historical, and the operative maximums are one year and two years.

Section 10A extended, during the Emergency, the detention of persons whose orders had been confirmed before the 1976 amendment.

Sections 11 to 15

Section 11: revocation of detention orders, in terms comparable to section 14 of the National Security Act.

Section 12: temporary release of persons detained.

Section 12A: special provisions for dealing with emergency. This is the section that connects COFEPOSA directly to Module II: it made special provision for detentions while the 1971 and 1975 proclamations were in force, and it is the reason the Act's own maximum period is keyed to those proclamations.

Section 13: protection of action taken in good faith, the standard provision barring a suit or prosecution against a person for anything done in good faith under the Act.

Section 14: the repeal of the Ordinance that preceded the Act, with the usual saving, and section 15 the transitional provision that goes with it.

Why the last three matter. Section 13 is the provision a detenu meets when he sues the detaining officer: it does not protect an act done outside the Act, and the question is always whether what was done was done under the Act at all, which is the same question the pleas in [What a Presidential Order Can Never Bar: Makhan Singh] turn on.

A worked example

An officer of the Directorate of Revenue Intelligence, not below the rank of Joint Secretary and specially empowered, makes an order on 1 March 2026 detaining Farid to prevent him from harbouring persons engaged in smuggling goods. The grounds are served on the seventh day, with reasons recorded in writing. The State in which he is held is not the State whose Government made the order.

Is the officer competent? Yes, if he is not below the rank of Joint Secretary to the Central Government and has been specially empowered for the purposes of section 3.

Is the ground within section 3(1)? Yes: harbouring persons engaged in smuggling goods or in abetting the smuggling of goods is the sixth limb.

Is the service of the grounds in time? The ordinary period under section 3(3) is five days; fifteen days are allowed in exceptional circumstances for reasons recorded in writing. The seventh day is therefore good only if such reasons exist and were recorded, and a court will look at the reasons and not merely at their existence.

Who must the order be reported to? If it was made by a State Government or its officer, section 3(2) requires a report to the Central Government within ten days; an order by a Central officer needs no such report.

By when must the Advisory Board be moved? Section 8 requires a reference within five weeks of the date of detention, so by 5 April 2026.

What is the maximum period? One year from 1 March 2026 under section 10, since section 9 cannot apply to an order made after 31 July 1999.

Can he be moved to another State? Section 5 allows removal from one place of detention to another, but a State Government may not remove him to another State without that State's consent.

COFEPOSA and the National Security Act compared

What it does NOT mean

COFEPOSA is not a criminal statute. It creates no offence and provides for no trial. Smuggling is punished under the customs law; this Act detains.

It is not confined to Indians. Section 3(1) says "any person (including a foreigner)".

Section 9 does not operate today. Its sunset is on the face of the section.

A detention under it is not a bar to prosecution. The two run in parallel, which is one of the standing criticisms of the scheme.

Quick revision

• COFEPOSA 1974, Act 52 of 1974. Preamble: smuggling harms the national economy and thereby the security of the State.
• s.3(1): conservation or augmentation of foreign exchange; smuggling; abetting; transporting, concealing or keeping; dealing; harbouring. Officers of the Centre not below Joint Secretary and of a State not below Secretary may be specially empowered.
• s.3(2): State report to the Centre within ten days. s.3(3): grounds within five days, fifteen on recorded reasons, expressly for article 22(5).
• s.5A severability; s.7 absconders; s.8 the Advisory Board; s.9 the article 22(7)(a) route, spent after 31 July 1999; s.10 maximums of one and two years plus the specified period; s.10A the Emergency extension; s.11 revocation; s.12 temporary release; s.12A special provisions for emergency.

Test yourself

1. What does COFEPOSA's preamble say connects smuggling to the security of the State? That violations of foreign exchange regulations and smuggling activities have an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State.

2. Which officers may make a detention order under section 3? The Central Government, a State Government, an officer of the Central Government not below the rank of Joint Secretary specially empowered, and an officer of a State Government not below the rank of Secretary specially empowered.

3. What is the maximum period of detention under section 10? One year from the date of detention, or the specified period whichever expires later, for an ordinary order; two years, or the specified period whichever expires later, for an order to which section 9 applies.

4. What is the "specified period", and does it still run? The period during which the Proclamations of Emergency of 3 December 1971 and 25 June 1975 were both in operation. It does not still run; both were revoked in March 1977.

5. Why can a COFEPOSA order not be made on a ground available under the PIT NDPS Act 1988? Because the proviso to section 3(1) expressly forbids it, keeping the two detention statutes from overlapping.

It works by defined classes. Rather than a general power, the Act defines who may be detained: a slumlord, a bootlegger, a drug offender, a dangerous person, a video pirate, and the further classes added by amendment. That is a drafting choice with a constitutional purpose: a class defined by the statute is easier to defend against an article 14 challenge than a discretion at large.

It rests on the public order ground. The satisfaction is that the person is acting or is about to act in a manner prejudicial to the maintenance of public order, which is the Entry 3 head. Everything in [Law and Order, Public Order and Security of the State: The Three Concentric Circles] therefore applies to it directly, and it is the ground on which most MPDA orders are challenged.

Its machinery mirrors the Union Acts. An order by the State Government or by a District Magistrate or Commissioner of Police specially empowered; approval and report; grounds within the article 22(5) periods; reference to an Advisory Board; confirmation or revocation; and a maximum period fixed by the Act.

This book does not quote the sections of the MPDA, because no copy of that Act has been read for this book. What is stated above is the constitutional frame, which is the examinable part, and a student working on an actual MPDA matter should read the Act itself.

Why so many State orders are quashed on the public order point

Because the classes the Act names are defined by criminal conduct, and criminal conduct is ordinarily a law and order matter. A bootlegger sells illicit liquor; a video pirate infringes copyright; a dangerous person commits offences against the body. None of that disturbs the even tempo of the life of the community merely by being an offence.

So the State must show, ground by ground, that the conduct reached the community. That is the Arun Ghosh v. State of West Bengal, AIR 1970 SC 1228, test applied to a class-based statute, and it is why the reported MPDA cases turn on it so often.

A practical corollary: where a person can be prosecuted and the State has not explained why prosecution will not answer, the inference that the order is being used as a substitute for the ordinary criminal law is strong. That is the modern approach set out in [The Recent Judicial Trend on Preventive Detention].

The overlap with the National Security Act

Section 17 of the National Security Act 1980 provides that nothing in that Act applies to or has effect with respect to orders of detention made under any State law which were in force immediately before the commencement of the National Security Ordinance 1980. So pre-1980 State orders were left alone.

For orders made afterwards, the two schemes run side by side, and the choice of statute is the State's. The practical difference is the ground and the maximum period: a State Act's classes are narrower than the National Security Act's public order head, and its maximum is whatever the State Act fixes.

A worked example

The Government of a State enacts an Act permitting the detention for two years of a "habitual offender", defined as a person against whom three or more charge sheets have been filed in five years, on the satisfaction of a Superintendent of Police, with an Advisory Board of two retired District Judges and no requirement to state grounds for thirty days.

The Board. Bad. Article 22(4) requires persons who are, have been, or are qualified to be appointed as, Judges of a High Court. Retired District Judges do not answer that description unless they are qualified for appointment to a High Court, and two is not a defect in itself since the Constitution fixes no number.

Thirty days for the grounds. Bad. Article 22(5) requires the grounds as soon as may be, and thirty days is not that; nor could a State fix such a period, since clause (5) is a constitutional command.

Two years. Bad unless a favourable Board report is obtained within three months and the Act's own scheme works within clause (4). A State cannot use clause (7)(a) to dispense with the Board.

The class. Arguable. A class defined by charge sheets alone is a class defined by accusation rather than by conduct, and an article 14 challenge would ask whether the classification has a rational nexus with the object of preventing prejudice to public order.

The satisfaction of a Superintendent of Police. Not obviously bad in principle, since the Constitution names no officer, but the level of the officer is relevant to the reasonableness of the procedure under article 21 after Maneka Gandhi v. Union of India, AIR 1978 SC 597.

What it does NOT mean

A State Act is not a lesser law. It is as valid as a Union Act within its field.

A State cannot borrow the Union's grounds. The three Entry 9 grounds are closed to it.

Presidential assent does not cure incompetence. Article 254(2) operates on repugnancy in a concurrent field, not on a law outside the State's legislative power altogether.

The Board's composition is not negotiable. Article 22(4) fixes it, and no State Act can dilute it.

Quick revision

• Entry 3 of List III: security of a State, maintenance of public order, maintenance of supplies and services essential to the community. Those three and no others.
• Article 22 applies in full; article 22(7) is closed to a State because it names Parliament; article 254 governs a clash with a Union law.
• Maharashtra: the MPDA 1981, aimed at defined classes including slumlords, bootleggers, drug offenders, dangerous persons and video pirates, resting on the public order ground.
• Most challenges succeed on the concentric circles point, because the classes are defined by criminal conduct and criminal conduct is ordinarily law and order.
• NSA s.17 leaves pre-1980 State orders untouched; thereafter the schemes run side by side.

Test yourself

1. On what three grounds may a State Legislature provide for preventive detention? The security of a State, the maintenance of public order, and the maintenance of supplies and services essential to the community.

2. Why can a State Act not provide for detention beyond three months without an Advisory Board? Because that route exists only under article 22(7)(a), which empowers Parliament, and a State Legislature cannot legislate under it.

3. What is the commonest successful challenge to a State detention order, and why? That the grounds disclose only a law and order problem rather than a disturbance of public order, because the classes such Acts define are defined by criminal conduct, which is ordinarily a law and order matter.

4. Does Presidential assent under article 254(2) save a State Act that is outside the State's competence? No. Article 254 deals with repugnancy on a concurrent matter; it does not confer competence.

5. What does section 17 of the National Security Act do? It provides that nothing in that Act applies to or has effect with respect to orders of detention made under a State law which were in force immediately before the commencement of the National Security Ordinance 1980.

On duration. Section 13: twelve months maximum.

On release. Section 14: revocation at any time by the State or the Central Government. Section 15: temporary release.

Layer three: the judicial safeguards

Six, each with its own chapter, and each is an application of the requirement that the procedure be right, just and fair.

1. The correct ground. Satisfaction must be on the head the power names. Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740.

2. Relevance and existence of the grounds. Vague, irrelevant and non-existent grounds are no grounds, subject now to severability under section 5A.

3. Proximity. A live link between the grounds and the satisfaction, and no unexplained delay in making or executing the order.

4. Application of mind. A mechanical order discloses no satisfaction. Khudiram Das v. State of West Bengal, AIR 1975 SC 550, requires due care and caution and fair action.

5. Effective communication. The grounds in a language the detenu understands and a script he can read, and the documents and materials relied on supplied. Harikisan v. State of Maharashtra, AIR 1962 SC 911, and Lallubhai Jogibhai Patel v. Union of India, AIR 1981 SC 728.

6. Expedition in deciding the representation. By each authority that has to decide it, independently of the Board. Jayanarayan Sukul v. State of West Bengal, AIR 1970 SC 675.

To those six, two more rules apply where the facts raise them: the three conditions for detaining a person already in custody, from Kamarunnissa v. Union of India, AIR 1991 SC 1640; and the requirement of a fresh satisfaction for a second order.

Safeguards against misuse, which is MU's other phrasing

QP 27118 asks specifically about safeguards against misuse. That is a different question from what the safeguards are, and it deserves a different answer. Five things operate against misuse rather than merely regulating the power.

1. The lapse provisions. An order by a District Magistrate dies in twelve days without approval. Nothing else in the scheme is so unforgiving, and it forces a second mind onto the file quickly.

2. The adverse Board report. Section 12(2) is mandatory. A Government that has detained wrongly can be compelled to release by a body of judges.

3. The Central Government's power over a State order. Section 14(1)(b) puts a second Government in a position to undo the first.

4. Habeas corpus. Articles 32 and 226 are unaffected by anything in the Act, and section 16's protection for acts done in good faith does not touch them.

5. The judicial safeguards themselves. Every one of the six above is a rule that a misused power will trip over, because a misused power is characteristically one that is exercised without material, on the wrong ground, after a delay, and against a person who could have been prosecuted.

What is missing, which an LL.M. answer should say

Four gaps, stated honestly.

No hearing before the order. The detenu learns of the case after he is in custody.

No lawyer before the Board. Section 11(4), subject to the equality qualification in A.K. Roy v. Union of India, AIR 1982 SC 710.

No review on the merits. Subjective satisfaction closes that door.

The Board is appointed by the detaining Government, and the amendment that would have changed this has never been notified. See [The Article 22 the 44th Amendment Wrote, and Which Was Never Brought Into Force].

A worked answer: a model plan

For a 25 mark question on safeguards, in this order.

1. What preventive detention is, in two sentences, and the constitutional authorisation.
2. Layer one: the four constitutional safeguards, with the article and clause for each.
3. Layer two: the statutory safeguards with the periods, using the National Security Act as the example.
4. Layer three: the six judicial safeguards, with one case each.
5. The two situational rules: custody, and a second order.
6. What is missing: the four gaps.
7. The 44th Amendment's unnotified section 3, and A.K. Roy.
8. An assessment in three sentences.

That plan is complete, it is ordered, and it can be written in the time available.

Quick revision

• Three layers: constitutional, statutory, judicial.
• Constitutional: three months and the Board, grounds, earliest opportunity of representation, and the limits on clause (7).
• Statutory under the NSA: three month delegation, twelve or twenty day lapse, seven day report to the Centre, five or fifteen days for grounds, three weeks to the Board, seven weeks for the report, confirm or release, twelve months, revocation and temporary release.
• Judicial: correct ground, relevance and existence, proximity, application of mind, effective communication and supply of material, expedition in deciding the representation.
• Against misuse: the lapse provisions, the mandatory adverse report, the Central Government's power over a State order, habeas corpus, and the judicial rules themselves.
• Missing: no prior hearing, no lawyer before the Board, no merits review, and a Board appointed by the detaining Government.

Test yourself

1. Name the four constitutional safeguards. The three month limit with the Advisory Board under article 22(4); communication of the grounds under clause (5); the earliest opportunity of making a representation under clause (5); and the limits in clause (7) together with the proviso to clause (4)(a).

2. Which statutory provision is the most unforgiving, and why does it matter? Section 3(4) of the National Security Act, under which an order made by a District Magistrate or Commissioner of Police lapses in twelve days, or twenty, unless approved by the State Government. It forces a second mind onto the file at once.

3. Give the six judicial safeguards with one case each. Correct ground, Lohia; relevance and existence of grounds; proximity; application of mind, Khudiram Das; effective communication and supply of material, Harikisan and Lallubhai Jogibhai Patel; and expedition, Sukul.

4. What are the four gaps in the scheme? No hearing before the order; no lawyer before the Board; no review on the merits; and a Board appointed by the detaining Government.

5. How does an answer on "safeguards against misuse" differ from one on "safeguards"? It concentrates on the provisions that operate to defeat a misused power: the lapse provisions, the mandatory release on an adverse Board report, the Central Government's power to revoke a State order, habeas corpus, and the judicial rules that a misused order characteristically fails.

2. Competence limits. A State cannot use the Entry 9 grounds. Parliament and the States share Entry 3. Article 254 resolves a clash.

3. Statutory limits. Every period in the Act is a limit: twelve days for approval, five or fifteen days for grounds, three weeks to the Board, seven weeks for the report, twelve months in all. So is the description of who may be empowered, and so is the requirement that the empowering order be in writing and for a limited period.

4. Judicial limits. The six rules in [The Safeguards Gathered, and the Safeguards Against Misuse], and the situational rules about custody and second orders.

5. The necessity limit. Section 3 permits an order only where the authority is satisfied that it is necessary to detain. Where the ordinary law would answer, and the State cannot say why it will not, the necessity is not made out. That is the limit doing the most work in the modern cases, and it is developed in the next chapter.

The one limit that does not exist

There is no limit by reference to the gravity of what is apprehended. The statute does not require that the anticipated harm be serious, only that it fall within a named head. In practice the concentric circles test supplies a threshold for the public order head, because conduct that does not reach the community is not within the ground at all. But there is no general proportionality requirement written into the detention statutes, and an answer that says there is would be overstating the law.

That is a real gap, and it is worth naming. Contrast the position under [National Security and the Freedom of Speech], where Anuradha Bhasin v. Union of India, AIR 2020 SC 1308, requires proportionality and the least intrusive measure of an executive order restricting freedoms. No equivalent has been read into section 3 of the National Security Act, though the necessity requirement does some of the same work.

A worked example that tests the boundaries

Which of these is within the scope of the power, and what limits bite?

A. A journalist whose reporting embarrasses the State Government. Within the scope in the sense that he is a person and the executive may form a satisfaction. Stopped by the limits: no named ground covers embarrassment, the order would be mala fide, and Vinod Dua v. Union of India, AIR 2021 SC 3239, shows the Court's approach to the criminal analogue.

B. A person acquitted last month of rioting, against whom fresh intelligence has been received about a planned communal attack. Within the scope. The acquittal is no bar. Limits: the ground must be public order and the material must show reach into the community; the live link must hold; the fresh intelligence must be material the authority actually considered.

C. A person already in judicial custody in a smuggling case. Within the scope. Limits: the three conditions in Kamarunnissa v. Union of India, AIR 1991 SC 1640.

D. A foreign national whose presence the Government wishes to regulate pending expulsion. Within the scope, expressly, under section 3(1)(b) of the National Security Act. Limits: the article 22(5) safeguards apply to him as to anyone else, and article 21 protects a person rather than a citizen.

E. A person who has been repeatedly granted bail in cases the State considers serious. Within the scope in principle, but this is the case in which the necessity limit bites hardest, because the record shows that the ordinary law has been invoked and has produced a result the State dislikes.

What it does NOT mean

Scope is not the same as validity. An order may be within the scope of the power and still bad for breach of a limit.

A wide scope is not an argument against the limits. The two are independent, and the answer to a question about scope should not slide into an argument about whether the power should exist.

The absence of a gravity threshold is not the absence of any threshold. The concentric circles test and the necessity requirement supply one in practice.

Limits are not only judicial. Four of the five kinds are found in the Constitution and the statutes.

Quick revision

• Scope: any person including a foreigner; six grounds under the NSA plus the statute-specific grounds elsewhere; the Governments and specially empowered officers; twelve months under the NSA; and all of it in ordinary times without any proclamation.
• Limits: constitutional, competence, statutory, judicial, and necessity.
• No gravity threshold is written into the statutes, and no general proportionality requirement has been read into section 3, though the concentric circles test and the necessity requirement do similar work.
• Contrast Anuradha Bhasin, which requires proportionality and the least intrusive measure of executive orders restricting freedoms.

Test yourself

1. What are the four elements of the scope of the power? Who may be detained, on what grounds, by whom, and for how long, with the further point that it operates in ordinary times without any proclamation.

2. Name the five kinds of limit. Constitutional, legislative competence, statutory, judicial, and the necessity requirement in the Act itself.

3. Is there a gravity threshold in the detention statutes? No. The statutes require the anticipated conduct to fall within a named head, not that it be serious, though the concentric circles test supplies a threshold for the public order head in practice.

4. Does the power extend to foreigners? Yes. Section 2(d) of the National Security Act provides that person includes a foreigner, and section 3(1)(b) contains a ground specific to foreigners.

5. In which situation does the necessity limit bite hardest? Where the ordinary criminal law has already been invoked and the State is dissatisfied with the result, because the record then shows that prosecution was available and the State must explain why it will not answer.

Why it matters here. It is the clearest modern statement of the necessity limit, and its bail point is the one most often decisive on the facts: an order made because the State is unhappy that a court granted bail is an order made for the wrong purpose.

2. The ten tests

Ameena Begum v. State of Telangana, decided on 4 September 2023, reported as 2023 INSC 788.

Facts. The appellant's husband was detained under the Telangana Prevention of Dangerous Activities Act on the footing that his activities were prejudicial to the maintenance of public order. The State relied on an earlier decision in which the detention of a person selling liquor harmful to health had been upheld, on the footing that the detaining authority had recorded a satisfaction on credible material that the activity endangered public health and so public order. The appellant contended, among other things, that the detention had been directed for the maximum period of twelve months without any application of mind or reasons.

Held. The detention order and the High Court's judgment were quashed and the detenu ordered to be released forthwith. The activities attributed to the appellant's husband could not be branded as prejudicial to the maintenance of public order, and the earlier decision the State relied on was distinguishable. In the course of the judgment the Court held that any order of a detaining authority which shows that it runs beyond the powers actually conferred is not a valid order under the governing preventive detention law, and set out ten matters a constitutional court is entitled to examine when testing the legality of an order of preventive detention:

whether the order is based on the requisite satisfaction, albeit subjective, of the detaining authority, the absence of such satisfaction as to the existence of a matter of fact or law on which the validity of the exercise of the power is predicated being the sine qua non for the exercise of the power not being satisfied;

whether, in reaching that satisfaction, the authority applied its mind to all relevant circumstances and did not act on material extraneous to the scope and purpose of the statute;

whether the power was exercised for achieving the purpose for which it was conferred, or for an improper purpose not authorised by the statute and therefore ultra vires;

whether the authority acted independently or under the dictation of another body;

whether the authority, by self-created rules of policy or otherwise in a manner not authorised by the statute, disabled itself from applying its mind to the facts of each individual case;

whether the satisfaction rests on materials of rationally probative value and due regard was given to the matters the statute mandates;

whether the satisfaction was arrived at bearing in mind a live and proximate link between the past conduct and the imperative need to detain, or is based on stale material;

whether the grounds are such as an individual with some degree of rationality and prudence would consider connected with the fact and relevant to the subject matter of the inquiry;

whether the grounds are not vague but precise, pertinent and relevant, informing the detenu with sufficient clarity of the satisfaction for the detention and giving him the opportunity to make a suitable representation; and

whether the timelines provided by law have been strictly adhered to.

The Court added that where the exercise of power is found bad or vitiated on any of those tests, the detention, which visits the person with drastic consequences, calls for being interdicted to right the wrong.

Why it matters here. It is the single most useful thing in this chapter, because it is a checklist an examiner will recognise and a practitioner can use. It also collects and restates every rule this module has built, which is why it is worth reading against [The Safeguards Gathered, and the Safeguards Against Misuse].

3. The decision both rest on

Both judgments proceed from Rekha, which they cite as reported at (2011) 5 SCC 244. This book has not read that report, and takes from it only what Banka Sneha Sheela reproduces: that offences which can be dealt with under the ordinary law do not warrant preventive detention, that recourse to it in such a case is contrary to articles 19 and 21, and that detention cannot be a substitute for the ordinary law.

What the trend actually is, in four propositions

1. Necessity is now the live question. Twenty years ago most reported challenges were about the paperwork: the language of the grounds, the supply of documents, the dates. Those rules remain, but the modern cases are decided on whether the State should have prosecuted instead.

2. The concentric circles test is applied strictly. A class-based State Act does not convert a law and order case into a public order case merely by naming the class. Banka Sneha Sheela rejects that argument in terms.

3. Bail is not the enemy. The remedy for a bail order the State dislikes is an appeal or an application to cancel, not a detention order.

4. The Court has moved from reviewing to structuring. Ameena Begum does what Anuradha Bhasin v. Union of India, AIR 2020 SC 1308, did for executive orders restricting freedoms: it converts an unstructured discretion into a list of things that must be shown.

A worked example

The State detains Vikas, who has four cheating cases against him, in all of which he has been granted bail. The grounds recite that he is a white collar offender within the State Act, that people of the locality live in fear of being cheated, and that the ordinary law has proved no deterrent.

On the older approach. The order would be tested for vagueness, for the supply of documents and for the timelines. If those were in order it would probably stand.

On the modern approach. It falls at the first hurdle. Cheating gullible persons is a law and order matter, not a disturbance of the even tempo of the life of the community. That the ordinary law has proved no deterrent is an argument for prosecuting properly, not for detaining. And the reference to bail is fatal rather than helpful: on Banka Sneha Sheela, dissatisfaction with bail is a ground for appealing against it, not a springboard for a detention statute.

Run it against the ten tests. It fails test three, because the power was exercised for a purpose the statute does not authorise; test six, because the material is not rationally probative of a public order problem; and test eight, because the grounds are not relevant to the subject matter of the inquiry.

What it does NOT mean

It does not mean preventive detention has been abolished by the courts. Orders are still upheld where the material shows a genuine public order problem and the safeguards were observed.

It does not weaken the older rules. The ten tests include them.

It is not confined to State Acts. The reasoning applies equally to the National Security Act, and the necessity requirement is in section 3 of that Act in terms.

"Recent trend" is not a licence for generalities. An answer should name the decisions and the propositions, not assert that the courts have become more protective.

Quick revision

• Banka Sneha Sheela v. State of Telangana, AIR 2021 SC 3656: preventive detention is not a substitute for the ordinary law; offences that can be dealt with under the ordinary law do not warrant it; dissatisfaction with bail is a ground to appeal or seek cancellation, not a springboard for a detention statute; detention is for a year only and cannot keep a person in perpetual custody without trial.
• Ameena Begum v. State of Telangana, 4 September 2023, 2023 INSC 788: ten tests, running from the existence of the requisite satisfaction to strict adherence to the timelines.
• Both proceed from Rekha, cited in them as (2011) 5 SCC 244.
• The trend in four words: necessity, strict classification, bail is not the enemy, and structure rather than review.

Test yourself

1. State the central proposition of Banka Sneha Sheela. That preventive detention cannot be made a substitute for the ordinary law: where the offences can be dealt with under the ordinary law of the land, recourse to preventive detention is contrary to the constitutional guarantees in articles 19 and 21.

2. What is the correct remedy where the State is dissatisfied with a bail order? An appeal against the bail order or an application for its cancellation, not a detention order.

3. Give any four of the ten tests in Ameena Begum. Any four of: the existence of the requisite satisfaction; application of mind to all relevant circumstances and no extraneous material; exercise for the proper purpose; independence from dictation; no self-disabling rule of policy; materials of rationally probative value; a live and proximate link and no stale material; grounds a rational and prudent person would consider relevant; grounds precise, pertinent and relevant rather than vague; and strict adherence to the timelines.

4. Does the modern approach displace the older rules about grounds and documents? No. The ten tests include them, and add the necessity question that now decides most cases.

5. Why is it wrong to answer a "recent trend" question in generalities? Because the marks are in the propositions and the decisions, and an assertion that the courts have become more protective states a conclusion without the reasoning that supports it.

14 August 2025, the assault on a rival contractor. A private quarrel over a tender. Law and order.

2 February 2026, the fight at a wedding hall. An affray. Law and order.

11 May 2026, stopping the drainage work. Work stopped for a week and the market shut for two days. The current of life of the community was disturbed. Public order.

Result: one good ground out of three.

Step 3: what follows from two bad grounds?

Section 5A of the National Security Act deems an order made on two or more grounds to have been made separately on each, so the two law and order grounds fall away and the order survives on the third, subject to two further questions.

Are the older grounds stale as well as irrelevant? August 2025 is nine months before the order and February 2026 is three months before. Nothing explains the gaps.

Does the quality of the material suggest that no satisfaction was formed? That two of the grounds are law and order matters is not fatal after section 5A, but it is evidence to be weighed with everything else on the application of mind point.

Result: the order survives step 3, weakened.

Step 4: was the detenu in custody, and was that dealt with?

He was. Apply the three conditions in Kamarunnissa v. Union of India, AIR 1991 SC 1640.

Aware of the custody? Yes. The grounds say so.

Real possibility of release on bail, on reliable material? The grounds say he is "likely to be released on bail" and say nothing more. There is no material about the offence, the practice in such cases, or the pendency of the application. That is an assertion rather than a satisfaction founded on reliable material.

Probability of prejudicial activity on release, and detention essential? Neither is addressed at all.

Result: a serious defect. Two of the three conditions are not satisfied on the face of the grounds.

Step 5: was the communication good?

Language. Marathi, and nothing suggests he cannot read it. Harikisan v. State of Maharashtra, AIR 1962 SC 911, is satisfied.

Time. The order and arrest were on 23 May; the grounds were served on 2 June, the tenth day. Section 8(1) allows five days ordinarily, and up to fifteen only in exceptional circumstances and for reasons to be recorded in writing. Nothing on these facts records any reason.

Result: a breach of section 8(1). Service on the tenth day without recorded reasons is out of time even though it is within fifteen days.

Documents. None supplied. On Lallubhai Jogibhai Patel v. Union of India, AIR 1981 SC 728, all documents and materials relied on must be supplied as soon as practicable so that the representation can be effective. On Kamarunnissa the detenu must show that the non-supply impaired his right, and here he said so in his representation of 10 June.

Result: a second breach.

Step 6: was the timetable kept?

Approval under section 3(4). The order was made on 23 May. Approval must come within twelve days, which is 4 June, or within twenty days where the grounds were communicated after five days but not later than fifteen, which is 12 June. The grounds were served on the tenth day, so the twenty day period applies and approval on 8 June is in time.

Notice what that means. The late service of the grounds, which is itself a breach, has the incidental effect of extending the approval period. A student who spots that has read section 3(4) carefully.

Reference to the Board under section 10. Three weeks from 23 May is 13 June. The reference was on 20 June.

Result: a breach of section 10.

Report under section 11. Seven weeks from 23 May is 11 July. The Board reported on 28 July.

Result: a breach of section 11.

Article 22(4). Three months from 23 May is 23 August. The Board reported sufficient cause on 28 July, so the constitutional limit is met even though the statutory period was missed.

Step 7: was the representation dealt with properly?

Apply Jayanarayan Sukul v. State of West Bengal, AIR 1970 SC 675.

The representation was made on 10 June. The State Government sent the case to the Board on 20 June without deciding it, and decided it only on 1 August, after the Board reported on 28 July.

That breaches the second and fourth principles: the Government's consideration is entirely independent of the Board's, and the Government must form its own opinion before sending the case to the Board.

Result: a further breach, and on its own a sufficient ground.

Step 8: the merits

There are none to consider. On Khudiram Das v. State of West Bengal, AIR 1975 SC 550, a court cannot be invited to consider the propriety or sufficiency of the grounds. Whether the drainage incident really justified a year's detention is not a question for the court.

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A worked answer

The detention is bad on five independent grounds.

1. The three conditions for detaining a person in custody are not satisfied, two of them being wholly unaddressed.
2. The grounds were served on the tenth day without any recorded reason, contrary to section 8(1).
3. The documents relied on were not supplied, and prejudice was asserted at the time.
4. The reference to the Advisory Board and the Board's report were both out of time under sections 10 and 11.
5. The State Government did not decide the representation before sending the case to the Board, and decided it only after the Board reported.

Two of the grounds fall away under section 5A, and the surviving ground is good, so the classification point does not by itself decide the case. The order fails on procedure, which is how most detentions fail.

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The order of attack, as a list to memorise

1. Competence of the authority, and the empowering order.
2. The statutory ground, and the concentric circles.
3. The individual grounds: vague, irrelevant, non-existent, stale, and section 5A.
4. Custody, if the detenu was in custody.
5. Communication: language, time, documents.
6. The timetable: approval, reference, report, three months, twelve months.
7. The representation: who decided it, when, and in what order.
8. Application of mind, running through all of the above.
9. The merits, which are closed.

Quick revision

• Eight steps, in order: is the Act competent; is the authority empowered; is the ground within the statute; is the ground a public order ground or only a law and order one; is the material such that a satisfaction could be formed; was the timetable kept; was the representation dealt with; and only then the merits.
• The three conditions for detaining a person already in custody: awareness of the custody, a real possibility of release, and material showing that if released he is likely to act prejudicially.
• The timetable: grounds ordinarily within five days and in exceptional circumstances for reasons recorded within the longer period the statute allows; reference to the Advisory Board within five weeks; the Board's report within eleven weeks of detention; and confirmation only on the Board's opinion of sufficient cause.
• Section 5A saves an order resting on more than one ground where some are bad; it cannot save an order resting on a single bad ground.
• A representation must be considered by the detaining authority and by the Government independently of the Board, and without avoidable delay.
• Most detentions fail on procedure, not on the merits, which is why the order of attack is the answer plan.

Test yourself

1. Why does the late service of the grounds help the State on the approval question? Because section 3(4) substitutes twenty days for twelve where the grounds were communicated after five days but not later than fifteen, so serving late extends the period within which the State Government must approve.

2. Which single breach on these facts would be enough by itself? Any of the five, and the clearest is the failure to decide the representation before sending the case to the Board, which is the fourth principle in Sukul.

3. Does the fact that two of the grounds are law and order matters destroy the order? No, because section 5A deems the order to have been made separately on each ground, so it survives on the good one, though the quality of the material is evidence on application of mind.

4. Was article 22(4) satisfied? Yes. The Board reported sufficient cause on 28 July, within three months of the detention on 23 May, even though the statutory seven week period was missed.

5. Why is there nothing to say about the merits? Because the satisfaction is subjective and a court cannot be invited to consider the propriety or sufficiency of the grounds on which it was based.

The two arguments have different answers. The emergency argument is answered by pointing to the ordinary preventive powers in [Keeping Public Order: The Executive's Ordinary Powers] and asking why they will not do. The intractability argument is answered by pointing out that the remedy for a broken investigative and trial system is to fix it, and that changing the rules of proof does not make the evidence better.

The three answers against it

1. It inverts the burden of the criticism. A statute enacted because ordinary procedure fails is a statute that responds to State failure by reducing the citizen's protection.

2. It travels. A special procedure enacted for terrorism is applied to cases that are not terrorism, because the definitions are wide and the machinery is convenient. That is the standing empirical criticism, and the NHRC's assessment of TADA in [TADA in Practice, and the NHRC's Comments] is the strongest Indian evidence of it.

3. It is hard to withdraw. A power once conferred is defended when its removal is proposed. TADA was allowed to lapse in 1995, POTA was repealed in 2004, and the substance of both was then re-enacted into the Unlawful Activities (Prevention) Act 1967 by amendment, so the machinery survived the statutes.

Exceptional legislation compared with preventive detention

They are both departures from the ordinary law, and students blur them. The difference is fundamental.

That last row is the one that matters. Preventive detention is authorised by the Constitution in terms. Exceptional legislation is not: it is ordinary legislation which must justify itself against Part III like any other. Which is why the due process argument in the next four chapters is the whole of Module II's first half.

The Indian statutes on the spectrum

Ranked by how many of the six features they carry.

Most exceptional. TADA 1987: special offence, Designated Court, confession to a police officer admissible, presumption, restricted bail, and protection for action taken. AFSPA 1958: not a criminal statute at all but a grant of power to fire causing death, with a sanction requirement.

Substantially exceptional. POTA 2002: the TADA features with added safeguards including a Review Committee. UAPA 1967 as amended: special offences, Special Courts under the NIA Act, presumption, a bail bar in section 43D(5), and no anticipatory bail by section 43D(4).

Moderately exceptional. MCOCA 1999, the NDPS Act 1985 in respect of section 37 bail, and the Prevention of Money-Laundering Act 2002.

Exceptional in a different direction. POCSO 2012 and the SC and ST (Prevention of Atrocities) Act 1989 carry special courts, presumptions and bail restrictions, but for the protection of a vulnerable complainant rather than for the security of the State. Noticing that is worth marks, because it shows that the technique is neutral and that the objection is to its use rather than to its existence.

A worked example

Parliament proposes an Act to deal with cyber fraud syndicates, providing for a new offence of organised cyber fraud, trial by a Special Court, a presumption that a person found in possession of stolen data committed the offence, a bar on bail where the accusation is prima facie true, ninety days for the charge sheet extendable to one hundred and eighty, and a sanction requirement for prosecuting officers.

Is it exceptional legislation? Yes, on all six features.

Which argument supports it? Intractability rather than emergency: the harm is not catastrophic, but the offenders are said to defeat ordinary investigation.

What are the constitutional questions? The presumption against article 20(3) and article 21; the bail bar against article 21; the Special Court against article 14 if the classification is arbitrary; and the whole against the requirement that the procedure be right, just and fair after Maneka Gandhi v. Union of India, AIR 1978 SC 597.

What is the strongest answer to it? That the remedy for investigators who cannot prove a case is better investigation, and that the Act's real effect will be long pre-trial custody in cases that are not syndicated at all.

What it does NOT mean

Exceptional does not mean unconstitutional. Kartar Singh v. State of Punjab, decided in 1994, upheld TADA, and People's Union for Civil Liberties v. Union of India (POTA), AIR 2004 SC 456, upheld POTA. The question is always which provisions survive and on what construction.

It does not mean temporary. TADA had a sunset clause and POTA had one; the UAPA does not.

It is not the same as emergency legislation. Nothing in this module requires a proclamation. That is Module II's second half.

It is not confined to national security. Economic offences, narcotics, organised crime and offences against children all have exceptional statutes.

Quick revision

• Working definition: a statute departing from the ordinary criminal law and procedure for a defined class of case, on the footing that the ordinary law is inadequate.
• Six features: special offence, special court, relaxed evidence, restricted bail, enlarged investigative powers, protection for the administrators.
• Two arguments for: emergency, where the harm would be irreversible; and intractability, where the ordinary process cannot function.
• Three answers against: it responds to State failure by reducing the citizen's protection; it travels beyond its class; and it is hard to withdraw.
• Distinguished from preventive detention: an offence, a trial and a judge, and no specific constitutional authorisation.

Test yourself

1. Give the six features. A specially defined offence; a special court; relaxed rules of evidence; restricted bail; enlarged powers of investigation and custody; and protection for those who administer it.

2. What are the two arguments for such legislation, and how do they differ? The emergency argument, that catastrophic and irreversible harm requires acting earlier and on less; and the intractability argument, that for a class of offender the ordinary process cannot function because witnesses, investigators and trials are defeated.

3. What is the fundamental difference from preventive detention? Exceptional legislation creates offences tried by a judge; preventive detention creates no offence and involves no trial. And preventive detention is expressly authorised by article 22, while exceptional legislation must justify itself against Part III like any other statute.

4. Name a statute that carries these features for the protection of a complainant rather than for State security. The Protection of Children from Sexual Offences Act 2012, or the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989.

5. Why is it said that such legislation is hard to withdraw? Because when TADA lapsed in 1995 and POTA was repealed in 2004, the substance of both was re-enacted into the Unlawful Activities (Prevention) Act 1967 by amendment, so the machinery outlived the statutes that carried it.

Why substantive due process is controversial

Because it puts a court in a position to strike down a statute on the ground that its content is unreasonable, which is a judgment about policy.

The American experience is what made the argument concrete. In the first third of the twentieth century the United States Supreme Court used substantive due process to strike down social and labour legislation on the ground that it interfered with freedom of contract, and the period is remembered as one in which a court substituted its economic preferences for a legislature's. That history is the reason Sir B.N. Rau was advised against importing the clause into the Indian Constitution, and it is the reason the Constituent Assembly wrote "procedure established by law" instead.

An answer that explains why the phrase was rejected, and not merely that it was, is doing what an LL.M. examiner wants.

Due process compared with the principles of natural justice

Students often treat them as synonyms. They overlap and they are not the same.

Maneka Gandhi v. Union of India, AIR 1978 SC 597, worked in [Maneka Gandhi, and What It Did to Preventive Detention], made both moves at once: it held that natural justice may be implied even where a statute is silent, and that the procedure under article 21 must be fair, just and reasonable.

Why this matters to a paper on national security

Because every device in an exceptional statute is a departure from one element of procedural due process, and they can be listed against each other. That list is the skeleton of MU's question.

Notice of the case. Reduced by in-camera trial and protected witnesses.

An opportunity to answer. Reduced by the reverse burden, which requires the accused to disprove rather than the State to prove.

An impartial adjudicator. Not usually reduced, since a Special Court is a court, though the question arises where the presiding officer is not a judge.

A decision on evidence properly obtained. Reduced by admitting a confession made to a police officer.

Liberty pending trial. Reduced by the bail restrictions.

A decision within a reasonable time. Reduced in practice by long investigations and longer trials, which is where the bail restrictions bite hardest.

Write those six as a list in an answer and the question about challenges and concerns answers itself.

A worked example

A statute provides that in a prosecution for a terrorist act, where arms are recovered from the possession of the accused, the court shall presume unless the contrary is proved that he committed the offence; that a confession made to a police officer of the rank of Superintendent is admissible; that the trial shall be held in camera and the identity of witnesses may be withheld; and that bail shall not be granted where the court is of opinion that the accusation is prima facie true.

Procedural due process. Every one of the four provisions reduces an element of it, and the cumulative effect is that a person may be convicted on a police confession he denies, by a court he cannot see the witnesses before, after years in custody he could not avoid.

Substantive due process. The question would be whether the classification of terrorist offences is rational and the means proportionate to the end. India does not ask it in that language, but it asks something similar through articles 14 and 21.

The Indian answer. Not that such provisions are void, but that they are read down. That is what Kartar Singh v. State of Punjab did to TADA and what People's Union for Civil Liberties v. Union of India (POTA), AIR 2004 SC 456, did to POTA, and it is the subject of [Due Process and Special Legislation].

What it does NOT mean

It is not part of the Indian Constitution's text. Article 21 says procedure established by law.

It is not the same as a fair trial in the ordinary sense. A fair trial is one application of it.

Substantive due process is not the same as judicial review. All constitutions with an enforceable bill of rights have judicial review; substantive due process is a particular technique of it.

Its absence from the text does not mean its absence from the law. After Maneka Gandhi the Indian standard is functionally close, and saying so is the correct conclusion.

Quick revision

• Magna Carta 1215 chapter 39, "the law of the land"; the statute of Edward III of 1354, which first uses "due process of law"; the Fifth Amendment 1791; the Fourteenth Amendment 1868.
• Two branches: procedural, concerned with notice, hearing, impartial adjudicator, evidence and reasons; substantive, concerned with the content and rationality of the law.
• Substantive due process is controversial because of the American period in which it was used to strike down social and labour legislation, and that history is why India rejected the phrase.
• Distinguish natural justice: two rules, common law, fills gaps in a statute, does not reach the statute itself.
• Six elements of procedural due process, each reduced by a device of exceptional legislation: notice, opportunity to answer, impartial adjudicator, evidence properly obtained, liberty pending trial, and decision within a reasonable time.

Test yourself

1. Where does the phrase first appear in a statute? In an English statute of Edward III of 1354, restating the guarantee in chapter 39 of Magna Carta, which itself used the words "the law of the land".

2. Which two amendments to the American Constitution contain the clause, and what is the difference? The Fifth, which binds the federal government, and the Fourteenth, which binds the States and under which most of the litigation has taken place.

3. Explain the difference between the two branches. Procedural due process asks whether the deprivation was carried out fairly; substantive due process asks whether the law authorising it is itself reasonable and rationally related to its end.

4. Why was the phrase rejected by the Constituent Assembly? Because of the American experience in which substantive due process was used to strike down social and labour legislation, which was thought to give judges power to substitute their policy preferences for a legislature's.

5. Name three elements of procedural due process reduced by an anti terror statute. Any three of: notice of the case, reduced by in-camera trial and protected witnesses; the opportunity to answer, reduced by a reverse burden; a decision on evidence properly obtained, reduced by admitting a police confession; liberty pending trial, reduced by bail restrictions; and a decision within a reasonable time.

What "procedure established by law" was taken to mean

In A.K. Gopalan, worked in [A.K. Gopalan and the Compartment Theory], the majority held that the words mean the procedure prescribed by a law enacted by a competent legislature, and that a court cannot ask whether the procedure is fair. The drafting history was treated as decisive: a phrase deliberately rejected cannot be read back into the text.

That reading had a plain consequence. Article 21 required a law and nothing more. A statute prescribing that a person may be hanged after a hearing before a police officer would have satisfied it in form.

How the courts got to the same place by another road

They did not read due process into article 21. They read articles 14, 19 and 21 together.

In Maneka Gandhi v. Union of India, AIR 1978 SC 597, worked in [Maneka Gandhi, and What It Did to Preventive Detention], the Court held that the mere prescription of some kind of procedure cannot meet the mandate of article 21, that the procedure has to be fair, just and reasonable and not fanciful, oppressive or arbitrary, and that it must answer the test of reasonableness in order to be in conformity with article 14.

Say this precisely in an answer, because the imprecise version is very common. India did not adopt due process. India held that a procedure which is not right, just and fair is not a procedure established by law within article 21, because article 14 forbids arbitrariness and the articles are to be read together. The destination is comparable; the route is different; and the difference matters because it explains why Indian courts speak of arbitrariness and reasonableness rather than of due process.

Does India now have substantive due process?

The honest answer, and the one that will earn marks, is that it has something functionally similar without the name, and that the Court has said so both ways at different times.

Arguments that it does. Article 14 strikes at arbitrariness in the content of a law as well as in its application; article 19's reasonableness requirement is a substantive test; the basic structure doctrine reviews the content of constitutional amendments; and proportionality is now applied to restrictions on fundamental rights, most clearly in Anuradha Bhasin v. Union of India, AIR 2020 SC 1308.

Arguments that it does not. The phrase was deliberately rejected and has never been restored; Indian courts have generally declined to strike down economic legislation for unreasonableness in the American manner; and the vocabulary of the cases is arbitrariness and reasonableness rather than due process.

The position to take. That India has a functional equivalent, developed through articles 14, 19 and 21 read together, and that it is narrower than American substantive due process in the field of economic regulation and comparable to it in the field of personal liberty.

A worked example

A statute provides that a person accused of an offence under it shall be tried by a Special Court sitting in camera, and that the court may convict on the testimony of a witness whose identity is not disclosed to the accused.

On the Gopalan reading of article 21. Valid. There is a law and it prescribes a procedure.

After Maneka. The question is whether a procedure that prevents an accused from knowing who accuses him is right, just and fair. The answer will depend on whether the withholding is necessary, whether alternatives such as disclosure to counsel alone were considered, and whether the conviction can rest on such evidence alone. That is a proportionality inquiry in all but name.

And note the route. Nobody asks whether the statute offends due process. The argument is put under article 21 read with article 14, and it succeeds or fails there.

What it does NOT mean

It does not mean the framers were hostile to liberty. They wrote an enforceable bill of rights with a constitutional remedy. They were hostile to a particular technique of judicial review.

It does not mean article 21 was useless before 1978. It required a law, and a law made by a competent legislature, which is more than nothing.

It does not mean Gopalan was wrongly reasoned on the text. Its reading of the drafting history was strong. What was wrong was the compartment theory, and that is what fell.

It does not mean the American and Indian positions are now identical. They are close on personal liberty and far apart on economic regulation.

Quick revision

• Article 21: procedure established by law. The Draft Constitution said due process of law.
• Sir B.N. Rau met Justice Frankfurter, who advised that the due process clause was undemocratic because it let judges invalidate legislation and threw an unfair burden on the judiciary.
• The formula adopted follows article 31 of the Japanese Constitution of 1946.
• The purpose was to protect land reform and labour legislation and to keep courts out of policy.
• A.K. Gopalan, AIR 1950 SC 27: the words mean a procedure prescribed by a competent legislature and no more.
• Maneka Gandhi, AIR 1978 SC 597: a procedure that is not right, just and fair is not a procedure established by law, because articles 14, 19 and 21 are read together.
• India has a functional equivalent of substantive due process for personal liberty, narrower in economic regulation, and it does not use the name.

Test yourself

1. What phrase did the Draft Constitution use, and what replaced it? "Due process of law" was replaced by "procedure established by law".

2. Whose advice produced the change, and what was the objection? Sir B.N. Rau carried back the advice of Justice Frankfurter of the United States Supreme Court, whose objection was that the due process clause was undemocratic, because it gave judges the power to invalidate legislation, and that it threw an unfair burden on the judiciary.

3. Which constitution supplied the phrase actually used? Article 31 of the Constitution of Japan of 1946.

4. Did India later adopt due process? No. It held in Maneka Gandhi that a procedure which is not right, just and fair is not a procedure established by law, reading articles 14, 19 and 21 together, which reaches a comparable standard by a different route.

5. Why does the difference of route matter? Because Indian courts decide these questions in the vocabulary of arbitrariness and reasonableness under articles 14 and 21, not in the vocabulary of due process, and an answer that uses the American language misdescribes what the Indian court is doing.

The difference between reading down and striking down

An exceptional statute rarely falls in its entirety. What happens instead is that a provision is construed so as to satisfy the standard, and this technique is what a student must be able to describe.

Striking down. The provision is void. Section 66A of the Information Technology Act 2000 in Shreya Singhal v. Union of India, AIR 2015 SC 1523, is the clearest recent example, and it fell because no reading could bring it within article 19(2).

Reading down. The provision survives on a narrower construction that satisfies the Constitution. Section 124A of the Penal Code in Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, survived only as an offence confined to incitement to violence or public disorder.

Reading in. The Court adds a requirement the statute does not contain, usually a safeguard. Much of what Kartar Singh v. State of Punjab did to TADA is of this kind, including the direction for Screening or Review Committees at the Centre and in the States.

Directions in aid. The Court leaves the statute alone and issues directions about how it is to be administered, as in People's Union for Civil Liberties v. Union of India (Telephone Tapping), AIR 1997 SC 568, on telephone interception.

Which technique is used matters, because a student asked whether an anti terror statute is constitutional will otherwise answer with a simple yes or no, when the true answer is almost always that it survives on a particular construction and subject to particular safeguards.

Why the standard is contested in this field

Three reasons, and they are the argument of Module II.

Because context cuts both ways. Maneka says reasonableness is judged in context. The State says the context of terrorism justifies a lower standard; the citizen says the context of a twenty year maximum sentence justifies a higher one. Both are using the same sentence.

Because the deprivation is often pre-trial. The person who suffers most from a special statute is frequently never convicted. That makes the bail provisions the real operative part of such statutes, and it is why [Bail Under Special Statutes: The Twin Conditions] matters more than the offence definitions.

Because the standard is judicial rather than textual. A standard the courts developed can be applied more or less strictly by different benches, and the reported cases show exactly that.

A worked example

A statute provides that where a person is found in possession of unaccounted foreign currency exceeding a stated amount, the Special Court shall presume that he acquired it by smuggling unless the contrary is proved, and that no bail shall be granted unless the court is satisfied that he is not guilty.

Notice and answer. He knows the allegation. But the presumption means he must disprove it, and where the currency's origin is unprovable by him the opportunity to answer is formal.

Impartial tribunal. A Special Court presided over by a sessions judge satisfies this.

Evidence properly obtained. Not engaged on these facts.

Liberty pending decision. The bail condition requires the court to reach a conclusion about guilt before trial, which is both difficult and, if applied literally, inconsistent with the presumption of innocence.

Reasonable time. If the trial takes six years, the bail condition has produced a six year sentence without conviction.

Likely outcome. Not invalidity, but reading down. The presumption is likely to be construed as arising only after the prosecution has proved the foundational facts beyond reasonable doubt, and the bail condition is likely to be read as not precluding release where the trial has been unreasonably delayed. Both of those moves are the actual pattern of the Indian cases, and they are worked in the two chapters that follow.

What it does NOT mean

It does not mean special statutes are unconstitutional. It means each of their provisions has to satisfy a standard.

It does not mean the standards of an ordinary trial apply. Reasonableness is judged in context.

It does not mean the courts have adopted due process. They have adopted a functional equivalent through articles 14, 19 and 21, and the vocabulary is arbitrariness and reasonableness.

It does not settle anything by itself. Maneka supplies the standard; the content is decided case by case, which is why the next four chapters exist.

Quick revision

• After Maneka Gandhi, AIR 1978 SC 597, a procedure under article 21 must be right, just and fair, not fanciful, oppressive or arbitrary, and must satisfy the test of reasonableness in conformity with article 14.
• Four propositions: procedure must be fair and not merely enacted; arbitrariness is a vice; natural justice may be implied; and reasonableness is judged in context and not on hypothetical considerations such as a full-dressed hearing.
• Six working requirements: notice, opportunity to answer, impartial tribunal, evidence properly obtained, proportionate pre-trial deprivation, and decision within a reasonable time.
• Four techniques: striking down, reading down, reading in, and directions in aid.
• Contested because context cuts both ways, because the deprivation is usually pre-trial, and because the standard is judicial rather than textual.

Test yourself

1. State the standard in the Court's own words. The mere prescription of some kind of procedure cannot meet the mandate of article 21; the procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary, and must answer the test of reasonableness in order to be in conformity with article 14.

2. What does the judgment say about how reasonableness is judged? Not in the abstract or on hypothetical considerations, such as a provision for a full-dressed hearing as in a court room trial, but in the context of the particular power.

3. Distinguish reading down from striking down, with an example of each. Striking down makes the provision void, as with section 66A of the Information Technology Act in Shreya Singhal; reading down saves it on a narrower construction, as with section 124A of the Penal Code in Kedar Nath Singh.

4. Why are the bail provisions of a special statute more important in practice than its offence definitions? Because the person affected by such a statute is often never convicted, so the operative deprivation of liberty is the pre-trial custody the bail provision produces.

5. Does India have due process after Maneka? It has a functional equivalent for personal liberty, reached by reading articles 14, 19 and 21 together, and it does not use the name; it remains narrower than the American doctrine in the field of economic regulation.

Presumptions raise article 21 and, indirectly, article 20(3). The objection is that the presumption of innocence is part of a fair procedure. The answer given is that a presumption operating only after foundational facts are proved beyond reasonable doubt does not offend, because the accused is not asked to disprove a bare accusation.

Confessions to police officers raise article 20(3) and article 21. The objection is that the rule excluding such confessions exists because of the risk of coercion, and that removing it makes conviction on a coerced statement possible. The answer given is that safeguards attached to the recording can make the departure fair, and Kartar Singh upheld section 15 of TADA on that footing while laying down requirements for its exercise.

Bail restrictions raise article 21 alone, and they raise it most sharply. The objection is that a person may spend years in custody without conviction. The answer developed by the courts is not that the restriction is void but that it yields where the trial has been unreasonably delayed, which is the reasoning in Union of India v. K.A. Najeeb.

In-camera trial raises articles 14 and 21. The objection is that an open trial is part of a fair one. The answer given in Kartar Singh draws on A.K. Roy v. Union of India, AIR 1982 SC 710, which had observed that the right to a public trial is not among the rights guaranteed by the Indian Constitution as it is under the Sixth Amendment to the American Constitution.

Extended custody raises article 21 and article 22(2) by analogy. The objection is that the ordinary limits on custody exist for a reason. The answer is that the extension is judicially supervised and is granted only on the Public Prosecutor's report showing progress.

The pattern of the Indian answer

Four features, and stating them is a complete answer to MU's note.

Provisions are upheld and read down rather than struck down. No Indian anti terror statute has been struck down in its entirety.

Safeguards are read in. Where the statute is silent, the Court supplies requirements: the Screening or Review Committees directed in Kartar Singh, the interception safeguards in People's Union for Civil Liberties v. Union of India (Telephone Tapping), AIR 1997 SC 568.

The constitutional check moves to the application. Having upheld the statute, the courts scrutinise the individual case: whether the offence is made out on the material, whether the confession was properly recorded, whether the delay justifies bail.

Time does the work the text does not. The most effective modern constraint on special statutes is not a doctrine about their validity but the proposition that prolonged incarceration without trial engages article 21 whatever the statute says.

A worked example

An accused is charged under a special statute. The prosecution relies on a confession recorded by a Deputy Superintendent of Police, and on the recovery of explosives from a house he shares with three others. He has been in custody for four years and the trial has not begun. The statute contains a presumption on recovery, a bail bar where the accusation is prima facie true, and a provision for in-camera trial.

The confession. Admissible if the statute so provides, but its recording must satisfy whatever safeguards the statute and the case law require, and the court will scrutinise voluntariness.

The presumption. It arises only if the foundational fact, possession by him, is proved beyond reasonable doubt. Recovery from a shared house is not possession by him without more, so the presumption may never be reached.

The bail bar. Engaged on its face. But four years of custody without a trial beginning is the point at which article 21 asserts itself, and the modern authority allows release notwithstanding the bar.

The in-camera trial. Not by itself a ground, on the reasoning that the right to a public trial is not separately guaranteed, though the withholding of a witness's identity from the accused is a different and stronger objection.

The answer. The statute stands; the confession is scrutinised; the presumption may not arise; and bail is likely on delay. That combination is what "due process and special legislation" means in Indian practice.

What it does NOT mean

It does not mean the departures are unconstitutional. The Indian answer has been to uphold them with limits.

It does not mean they are harmless. The empirical record, especially the NHRC's assessment of TADA, is the counterweight.

It does not mean every special statute is the same. POTA added safeguards TADA lacked; the UAPA dropped the police confession provision altogether.

It is not only about terrorism. The same five departures appear in economic offence, narcotics and organised crime statutes, and in statutes protecting children and Scheduled Castes and Scheduled Tribes.

Quick revision

• Five departures: the burden of proof; confessions to police officers; bail; openness of the trial; and pre-trial custody.
• Five objections: presumption of innocence; the reason for excluding police confessions; prolonged custody without conviction; the value of an open trial; and the reason for the ordinary custody limits.
• The Indian pattern: uphold and read down; read in safeguards; move the check to the application; and let unreasonable delay do the work.
• A.K. Roy, AIR 1982 SC 710, observed that the right to a public trial is not a guaranteed right under the Indian Constitution as it is under the Sixth Amendment of the American Constitution.

Test yourself

1. Name the five departures. The burden of proof by statutory presumption; the admissibility of confessions to police officers; restrictions on bail; in-camera trial and protected witnesses; and extended periods of pre-trial custody.

2. What is the standard answer to the objection to a statutory presumption? That a presumption which arises only after the prosecution has proved foundational facts beyond reasonable doubt does not offend a fair procedure, because the accused is not asked to disprove a bare accusation.

3. What did A.K. Roy observe about public trials? That the right to a public trial is not one of the guaranteed rights under the Indian Constitution as it is under the Sixth Amendment of the American Constitution.

4. What is the most effective modern constraint on special statutes? Not a doctrine about their validity but the proposition that prolonged incarceration without trial engages article 21 whatever the statute says, so that bail follows unreasonable delay.

5. Has any Indian anti terror statute been struck down in its entirety? No. The pattern has been to uphold such statutes while reading provisions down and reading safeguards in.

A legal or persuasive burden. The accused must prove the matter, ordinarily on the balance of probabilities. This is the true reverse burden.

A mandatory presumption on proof of foundational facts. The court shall presume once stated facts are proved. Section 21 of TADA is of this kind. Its severity depends entirely on how demanding the foundational facts are.

A discretionary presumption. The court may presume. Milder again, because the court retains a choice.

The question in every case is therefore two-part: what must the prosecution prove before the presumption arises, and what must the accused then do to displace it.

The constitutional test

Three propositions, and together they are the Indian answer.

The foundational facts must be proved beyond reasonable doubt. The presumption is not a substitute for proof; it is a consequence of proof. Where the foundational fact is possession, mere presence at premises where something is found does not establish it.

The presumption must be rebuttable. An irrebuttable presumption of guilt would not be a rule of evidence at all.

The connection between the foundational fact and the presumed fact must be rational. A presumption that a person who owns a vehicle used in an offence committed it would fail this; a presumption that a person from whose exclusive possession explosives are recovered, used in the offence, committed it is defensible.

Kartar Singh v. State of Punjab, (1994) 3 SCC 569, upheld TADA including its presumption, in a judgment whose whole technique was to uphold and confine rather than to strike down. That case is worked in [Kartar Singh v. State of Punjab].

The provisions in force today

Section 43E of the Unlawful Activities (Prevention) Act 1967. The presumption applicable to offences under section 15, arising where arms or explosives are recovered from the possession of the accused and there is reason to believe they were used in the commission of the offence, or where the fingerprints of the accused or other definitive evidence suggesting his involvement are found at the site of the offence or on anything used in connection with it.

Notice what is not there. The UAPA presumption does not include the TADA limbs founded on a co-accused's confession or on an extra-judicial confession to any person. Parliament dropped them, and a student who notices that is showing that the statutes are not interchangeable.

Section 37 of the Narcotic Drugs and Psychotropic Substances Act 1985, read with the presumptions in sections 35 and 54 of that Act, is the comparison most often drawn outside the security field.

A worked example

Rafiq is prosecuted under a special statute. The prosecution proves that a bag containing explosives was recovered from a room in a house in which he and three others live, and that the explosives were of a kind used in a bombing.

Does the presumption arise? Only if possession by him is proved beyond reasonable doubt. Recovery from a room in a shared house does not establish exclusive possession, and unless the prosecution proves that the room was his and that he had control of the bag, the foundational fact fails and the presumption never operates.

Suppose exclusive possession is proved. The presumption arises, and Rafiq must prove the contrary. He may do so on the balance of probabilities: for example, by evidence that the bag was planted, or that he was elsewhere when the bombing occurred.

Suppose the only material is a co-accused's statement naming him. Under TADA that was a foundational fact by section 21(1)(c). Under the UAPA it is not, and the ordinary law about the weight of a co-accused's statement applies.

The criticism, stated fairly

For the provision. In terrorism cases the direct evidence is often destroyed with the target, witnesses will not testify, and the State can prove connection without being able to prove the act. A presumption bridges that gap.

Against it. The presumption of innocence is not a technicality; it is the allocation of the risk of error, and it is allocated to the State because the State prosecutes. Reversing it in the cases where the consequences are gravest reverses it exactly where it matters most. And in practice the foundational facts are often proved loosely, so the presumption does work the legislature did not intend.

The middle position, and the one the cases take. The provision stands, and the courts police the foundational facts strictly. That is why the worked example above turns entirely on possession.

What it does NOT mean

It does not abolish the prosecution's burden. The foundational facts must still be proved, and beyond reasonable doubt.

It is not the same as an adverse inference. An inference is drawn by a court on the evidence; a presumption is directed by statute.

It does not apply to every offence in the statute. Section 21 of TADA applied to offences under section 3, not to the whole Act, and section 43E of the UAPA is similarly confined.

The statutes are not identical. The UAPA omits two of TADA's four foundational limbs.

Quick revision

• TADA s.21: on proof of recovery of arms or explosives used in the offence, of fingerprints at the site, of a co-accused's confession, or of an extra-judicial confession to a person other than a police officer, the Designated Court shall presume the offence unless the contrary is proved; and on proof of financial assistance, the section 3(3) offence.
• Four devices: evidential burden, legal burden, mandatory presumption on foundational facts, discretionary presumption.
• The test: foundational facts proved beyond reasonable doubt; the presumption rebuttable; and a rational connection between the foundational and the presumed fact.
• Kartar Singh v. State of Punjab, (1994) 3 SCC 569, upheld TADA including the presumption.
• UAPA s.43E is narrower: it omits the co-accused's confession and the extra-judicial confession limbs.

Test yourself

1. What are the four foundational facts in section 21(1) of TADA? Recovery of arms, explosives or specified substances from the accused's possession where there is reason to believe they were used in the offence; fingerprints of the accused at the site or on anything used in connection with the offence, proved by expert evidence; a confession by a co-accused that the accused committed the offence; and a confession by the accused to a person other than a police officer.

2. What must the prosecution prove before the presumption operates, and to what standard? The foundational facts, beyond reasonable doubt.

3. Distinguish an evidential burden from a legal burden. An evidential burden requires the accused only to raise the issue and point to some material, the legal burden remaining on the prosecution; a legal burden requires him to prove the matter, ordinarily on the balance of probabilities.

4. Which TADA foundational facts did Parliament omit from section 43E of the UAPA? The confession of a co-accused, and the confession of the accused to a person other than a police officer.

5. Why does the worked example turn on possession? Because the presumption arises only on proof of the foundational fact, and recovery from a shared house does not prove exclusive possession by the accused, so the presumption never operates.

Three features made it exceptional even among exceptional provisions. The recording officer was a police officer and not a Magistrate. The confession was admissible against the maker in the trial for an offence under the Act. And, as originally applied, it was treated as admissible against a co-accused as well, which is why section 21(1)(c) made a co-accused's confession a foundation for the presumption.

Kartar Singh v. State of Punjab, (1994) 3 SCC 569, upheld the provision. That decision also laid down requirements for its exercise, and its whole approach was to uphold and confine.

Section 32 of POTA, and what was added

POTA retained the device and added safeguards, and People's Union for Civil Liberties v. Union of India (POTA), AIR 2004 SC 456, upheld it on that footing.

Facts. The Prevention of Terrorism Act 2002 was challenged in a group of petitions, including its section 32 on confessions and its section 49 on bail.

Held on section 32. It was upheld. The need for such a provision had been explained and upheld in Kartar Singh, and if the recording of a confession by the police is found necessary by Parliament and is in tune with the scheme of law, then the additional safeguard in section 32(4) and (5) is a fortiori legal. The requirement of producing the person before a Magistrate is an additional safeguard: it gives him an opportunity to rethink his confession, and the Magistrate's responsibility to record the statement, to enquire about torture and to provide for subsequent medical treatment makes the provision safer and will deter police officers from obtaining a confession by subjecting a person to torture. An officer below the rank of Superintendent of Police cannot record the confession; it is a settled position that a confession forcibly extracted is a nullity in law, and the non-inclusion of that obvious and settled principle does not make the section invalid, since admissibility is ultimately for the court to decide.

Held on section 49. Sub-sections (6) and (7) are to be read together: the Public Prosecutor must be heard, and if he opposes the application the court must be satisfied that there are grounds for believing the accused is not guilty. The proviso means that after one year of detention the accused can be released on bail under ordinary law without the rigour of section 49(7). The Court observed that the word "not" appeared to have been accidentally omitted from the proviso, without which it would be absurd. Taking into account the complexities of terrorism related offences and Parliament's intention in enacting a special law, the additional bail conditions were not unreasonable, and section 49 was upheld. The petitions were dismissed subject to the clarifications the Court had set out.

Why it matters here. It is the fullest judicial defence of the police confession device, and it shows exactly what makes the difference: the Magistrate, the enquiry about torture, the medical provision, and the rank of the recording officer.

And then Parliament dropped it

When POTA was repealed in 2004 and its substance carried into the Unlawful Activities (Prevention) Act 1967, the confession provision was not carried over. The UAPA contains no equivalent of section 15 of TADA or section 32 of POTA.

That is a fact of first importance and it is very often got wrong. Under the anti terror statute now in force, a confession to a police officer is inadmissible exactly as it is in an ordinary case.

Two consequences follow for an answer. The strongest single criticism of the older statutes has been met by Parliament itself, which is a point in favour of the legislative process. And a question asking about "special legislations for curbing terrorism" in the present tense cannot be answered on section 15 of TADA alone.

The comparison with the narcotics law

Tofan Singh v. State of Tamil Nadu, AIR 2020 SC 5592, worked in [The Other Legislations Against Economic Offenders], is the modern counterpart. It held that officers invested with powers under section 53 of the Narcotic Drugs and Psychotropic Substances Act 1985 are police officers within the meaning of section 25 of the Evidence Act, so a confessional statement made to them is barred and cannot be taken into account to convict, and that a statement recorded under section 67 of that Act cannot be used as a confessional statement.

The contrast is instructive. TADA and POTA achieved by express words what the NDPS Act was argued to achieve by implication, and the Court refused the implication. A special statute that wants to admit police confessions must say so.

A worked example

An accused is tried under a statute that admits a confession recorded by an officer of the rank of Superintendent, requires the officer to warn him, and requires production before a Magistrate within forty eight hours with an enquiry about torture.

Is the provision valid? On PUCL the answer is yes, and the safeguards are what make it so.

Is this confession admissible? A separate question, and it is where the case is actually won or lost. Was the warning given and recorded? Was he produced before a Magistrate? Did the Magistrate enquire about torture, and what did he record? Was the statement voluntary?

And if it was extracted by force? It is a nullity in law, whatever the statute says, and the court decides admissibility.

Suppose the statute is the UAPA. The question does not arise. There is no such provision, and the confession is inadmissible.

What it does NOT mean

It does not mean such provisions are unconstitutional. They were upheld in Kartar Singh and PUCL.

It does not mean a confession to a police officer is now admissible in terrorism cases. It is not. The UAPA has no such provision.

It does not affect a confession recorded by a Magistrate. That is admissible in ordinary law and needs no special provision.

It does not make a coerced confession admissible. A forcibly extracted confession is a nullity in law.

Quick revision

• Ordinary rule: sections 25 and 26 of the Evidence Act 1872, now sections 22 and 23 of the Bharatiya Sakshya Adhiniyam 2023.
• TADA s.15: confession before an officer not lower than Superintendent of Police, recorded in writing or on a mechanical device, admissible in the trial for an offence under the Act; s.15(2) required a warning.
• Kartar Singh, (1994) 3 SCC 569, upheld it.
• POTA s.32 retained the device and added production before a Magistrate, an enquiry about torture and medical treatment; People's Union for Civil Liberties v. Union of India (POTA), AIR 2004 SC 456, upheld it, noting that a forcibly extracted confession is a nullity and that admissibility is for the court.
• The UAPA has no such provision, so a confession to a police officer is inadmissible under the statute now in force.
• Tofan Singh, AIR 2020 SC 5592: no such result by implication under the NDPS Act.

Test yourself

1. What is the ordinary rule, and why does it exist? No confession made to a police officer is proved against a person accused of an offence, and none made in police custody unless in the immediate presence of a Magistrate. The rule removes the incentive to extract confessions by removing their value.

2. What rank of officer could record a confession under TADA and under POTA? Not lower than a Superintendent of Police under both.

3. What did POTA add that TADA did not have? Production before a Magistrate, with the Magistrate's responsibility to record the statement, to enquire about torture and to provide for subsequent medical treatment.

4. Is a confession to a police officer admissible under the anti terror law in force today? No. The Unlawful Activities (Prevention) Act 1967 contains no equivalent provision.

5. What does Tofan Singh add to the comparison? That the same result cannot be achieved by implication: officers with powers under section 53 of the NDPS Act are police officers for section 25 of the Evidence Act, so confessions to them are barred, and a section 67 statement cannot be used as a confession.

Grade one, the mildest: a hearing for the Public Prosecutor. Found in the opening words of section 43D(5). It changes who is heard, not what must be shown.

Grade two: a bar where the accusation is prima facie true. The proviso to section 43D(5). The court forms a view on the material as it stands, without weighing it.

Grade three, the strictest: the twin conditions. Section 37 of the NDPS Act, and section 49(7) of POTA in similar terms, require the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty, and, in the NDPS version, that he is not likely to commit any offence while on bail. This is the true twin condition formula, and it asks the court to reach a conclusion about innocence before the trial.

Union of India v. K.A. Najeeb, AIR 2021 SC 712, records the difference in terms: section 43D(5) of the UAPA is comparatively less stringent than section 37 of the NDPS Act, because unlike the NDPS Act, where the court must be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail, there is no such pre-condition under the UAPA.

The formulas across the family, compared

The point of this chapter is the comparison, and the deep working of the UAPA provision and of the two decisions that construe it is in [The UAPA: Section 43D(5) and Bail]. What belongs here is the table.

The two observations to draw from it.

The UAPA formula is textually the mildest and practically the hardest. It asks no question about innocence, which sounds generous; but because the court may not weigh the material, an accusation that discloses a case on the prosecution's own papers is enough to refuse bail. The older formula at least required the court to look at how strong the material was.

And every formula in the table has survived challenge. TADA's in Kartar Singh v. State of Punjab, (1994) 3 SCC 569; POTA's in People's Union for Civil Liberties (POTA); the money laundering twin conditions, after being struck down in Nikesh Tarachand Shah v. Union of India, AIR 2017 SC 5500, and re-enacted, in Vijay Madanlal Choudhary v. Union of India, (2023) 12 SCC 1. No Indian court has held that a restriction on bail in a special statute is unconstitutional as such; what has been struck down is an irrational classification within one.

What the two UAPA decisions add

Both are worked in full in [The UAPA: Section 43D(5) and Bail], and the two sentences to carry from them are these.

National Investigation Agency v. Zahoor Ahmad Shah Watali, AIR 2019 SC 1734, fixes what the court may look at: the material in the case diary or the police report, taken at face value, with no mini trial and no ruling on admissibility.

Union of India v. K.A. Najeeb, AIR 2021 SC 712, fixes when the statute stops governing: where there is no likelihood of the trial being completed within a reasonable time and the accused has suffered a significant incarceration, the rigours of the provision melt down and a constitutional court may grant bail under article 21.

The two propositions to carry into an exam

At the threshold, the statute governs. The court looks at the case diary or the police report, takes the material at face value, and asks whether the accusation is prima facie true. Watali.

Over time, the Constitution governs. Where the trial is not going to be completed within a reasonable time and the accused has been in custody for a significant period, the rigours of the provision melt down and a constitutional court may grant bail. Najeeb.

Those two sentences, with the two case names, answer any question about bail under a special statute.

A worked example

Farhan is charged under sections 16 and 18 of the UAPA. The case diary contains a witness statement naming him and call records placing him near the site. He applies for bail after three months, and again after four years, by which time the trial has not begun and the prosecution proposes to examine two hundred witnesses.

The first application. Refused. On Watali the court takes the material at face value; a naming witness and corroborative call records make the accusation prima facie true, and the court does not ask whether the statement is admissible or the records reliable.

The second application. Granted. On Najeeb, four years of custody with no trial in prospect engages article 21, and the rigours of section 43D(5) melt down. The court is not disagreeing with its earlier view of the material; it is applying a different provision, namely article 21.

If the statute were the NDPS Act. Section 37 applies and the court must be satisfied that there are reasonable grounds for believing that he is not guilty and that he is not likely to commit an offence on bail. The Najeeb reasoning about delay still applies, but the threshold at the outset is higher.

If he were a foreign national who had entered unlawfully. Section 43D(7) applies and bail may be granted only in very exceptional circumstances and for reasons recorded in writing.

What it does NOT mean

It does not mean bail bars are unconstitutional. People's Union for Civil Liberties v. Union of India (POTA), AIR 2004 SC 456, upheld section 49 of POTA, and no such provision has been struck down.

It does not mean delay always produces bail. The question is whether a timely trial is possible and how long the accused has already been in custody, and Najeeb notes that the respondent had absconded for years.

It does not authorise a mini-trial at the bail stage. That is exactly what Watali condemns.

It is not confined to terrorism. The same structure appears in the narcotics, money laundering and organised crime statutes.

Quick revision

• Ordinary approach: bail is the rule; the questions are absconding, tampering and influencing witnesses.
• UAPA s.43D(4): no anticipatory bail. s.43D(5): Public Prosecutor to be heard, and no bail if the court, on the case diary or the section 173 report, is of opinion that there are reasonable grounds for believing the accusation is prima facie true. s.43D(6): in addition to other restrictions. s.43D(7): a non-citizen who entered unauthorisedly, only in very exceptional circumstances and for reasons recorded.
• NDPS s.37 and POTA s.49(7) are stricter: reasonable grounds for believing the accused is not guilty, and under the NDPS Act that he is not likely to commit an offence on bail.
• Watali, AIR 2019 SC 1734: prima facie assessment only; no mini-trial; no ruling on admissibility.
• Najeeb, AIR 2021 SC 712: statutory restrictions do not per se oust the power of constitutional courts to grant bail for violation of Part III; the rigours melt down where there is no likelihood of the trial concluding within a reasonable time; section 43D(5) is less stringent than section 37 of the NDPS Act.

Test yourself

1. State the test in the proviso to section 43D(5). That the accused shall not be released if the court, on a perusal of the case diary or the report under section 173 of the Code, is of the opinion that there are reasonable grounds for believing that the accusation against him is prima facie true.

2. How does section 37 of the NDPS Act differ? It requires the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail, which is a higher threshold, as Najeeb records.

3. What did Watali hold the High Court had done wrong? It had re-appreciated the entire evidence and determined the admissibility of certain evidence, practically conducting a mini-trial, which exceeded the limited scope of a bail petition and the statutory mandate of a prima facie assessment.

4. State the proposition in Najeeb in the Court's own terms. That the presence of statutory restrictions like section 43D(5) does not per se oust the ability of constitutional courts to grant bail on grounds of violation of Part III, and that the rigours of such provisions will melt down where there is no likelihood of the trial being completed within a reasonable time.

5. Is anticipatory bail available under the UAPA? No. Section 43D(4) provides that nothing in section 438 of the Code applies to a case involving the arrest of a person accused of an offence punishable under the Act.

The reply. The offences are grave, the accused may abscond or intimidate, and the restriction operates only while the accusation appears prima facie true.

The honest assessment. This is the strongest concern of the seven, and it is the one the courts have answered most directly: on Union of India v. K.A. Najeeb, AIR 2021 SC 712, the rigours melt down where there is no likelihood of a timely trial. That answer depends on a court being willing to apply it.

5. Closed trials and protected witnesses

The concern. A person who does not know who accuses him cannot cross-examine effectively, and an open trial is a check on the conduct of the trial itself.

The reply. Witnesses in terrorism cases are killed, and a trial in which nobody will testify is not a trial. And the right to a public trial is not separately guaranteed by the Indian Constitution, as the Court noted in A.K. Roy v. Union of India, AIR 1982 SC 710.

The honest assessment. The reply justifies protecting a witness's identity from the public; it justifies withholding it from the accused far less easily.

6. The conviction rate

The concern. If a statute produces very few convictions from very many arrests, its practical effect is detention rather than punishment, and that is not what the legislature enacted.

The reply. Low conviction rates reflect the difficulty of proof rather than misuse, which is the very reason the special provisions exist.

The honest assessment. This is an empirical question, and the empirical material on TADA is in [TADA in Practice, and the NHRC's Comments].

7. Application beyond the intended field

The concern. A statute enacted for terrorism is used for local crime, because the machinery is convenient and the bail bar is useful.

The reply. Screening mechanisms exist. Kartar Singh directed Screening or Review Committees at the Centre and in the States for exactly this reason, and POTA had a Review Committee.

The honest assessment. The direction in Kartar Singh is an admission that the concern was made out on the facts before the Court, which is the strongest thing that can be said for it.

How to structure the answer

Three moves, and they work for any version of this question.

State the concern in the language of the constitutional standard. Not "the law is harsh" but "the procedure is not right, just and fair under article 21 as read after Maneka Gandhi v. Union of India, AIR 1978 SC 597, because it removes the opportunity to answer".

Give the State's reply. An answer that gives only one side is an argument rather than an analysis.

Say which reply works. That is the analysis, and it is where the marks are.

A worked example

A State proposes a statute for a class of economic offence with these features: trial by a special court; a confession to a Superintendent of Police made admissible; a presumption of guilt on recovery of documents; bail only where the court finds the accusation not prima facie true; remand extendable to one hundred and eighty days; and a bar on anticipatory bail.

Which of the seven concerns does each feature raise? The special court raises the concern about the ordinary court structure; the confession, the concern about the rules of evidence; the presumption, the concern about the presumption of innocence; the bail and remand provisions, the concern about interim liberty; and the bar on anticipatory bail, the concern about arrest without recourse.

Which feature is most vulnerable? The confession provision, because it displaces sections 25 and 26 of the Evidence Act, which exist to prevent conviction on a manufactured admission, and because the statute is not answering an emergency but a class of economic offence.

Which is least vulnerable? The special court, because a court presided over by a judge appointed with the concurrence of the Chief Justice is not a departure from judicial trial, and because the High Court's jurisdiction cannot be ousted.

What would make the whole scheme defensible? Writing the confession safeguards into the section rather than leaving them to a judgment; making the presumption rebuttable on a preponderance; providing a route to ordinary bail after a fixed period; and attaching a sunset clause.

What is the honest conclusion? That none of the seven concerns is by itself a ground of invalidity, and that together they are the reason such statutes are repeatedly enacted, criticised and allowed to lapse.

What has actually changed

Worth a paragraph in an answer, because it shows that the criticism has had effects.

The police confession provision has gone. The sunset clauses in TADA and POTA reflected an acceptance that such laws should be temporary, though the UAPA has none. Screening and review mechanisms were introduced. And the courts have supplied a general answer to the bail problem in Najeeb.

What has not changed is the width of the definitions, the reverse burden, the bail bar at the threshold, and the length of trials.

What it does NOT mean

It does not mean the statutes are indefensible. Two of them have been upheld by Constitution Benches.

It does not mean the concerns are theoretical. The NHRC's material on TADA is evidence, not speculation.

It does not mean the answer is to repeal everything. An answer that says so without addressing what replaces it is incomplete.

It does not mean the courts have failed. They have read down, read in and, in Najeeb, supplied a constitutional override. Whether that is enough is the argument.

Quick revision

• Seven concerns: vague definitions; reverse burden; police confessions; bail and pre-trial custody; closed trials and protected witnesses; the conviction rate; and application beyond the intended field.
• Each has a State reply, and the replies are strongest on the reverse burden and weakest on vagueness.
• What has changed: the police confession provision is gone from the UAPA; screening mechanisms were directed in Kartar Singh; and Najeeb supplies a constitutional answer to prolonged custody.
• What has not: the width of definitions, the reverse burden, the threshold bail bar, and the length of trials.
• Structure: state the concern in constitutional language, give the reply, and say which reply works.

Test yourself

1. Which of the seven concerns has Parliament itself conceded? The admissibility of confessions to police officers: the Unlawful Activities (Prevention) Act 1967 contains no equivalent of TADA's section 15 or POTA's section 32.

2. Which concern have the courts answered most directly, and how? Bail and pre-trial custody, by holding in Najeeb that statutory restrictions do not oust the power of constitutional courts to grant bail for violation of Part III, and that the rigours melt down where a timely trial is unlikely.

3. Why is the reply on vagueness the weakest? Because a narrowing judicial construction comes years after the arrest, by which time the person has been in custody, so the protection arrives too late to protect.

4. What does the direction for Screening Committees in Kartar Singh show? That the concern about application beyond the intended field was made out on the material before the Court, which is why it thought a screening mechanism necessary.

5. How should a concern be stated in an LL.M. answer? In the language of the constitutional standard, by identifying the element of a right, just and fair procedure that the provision removes, rather than by describing the statute as harsh.

POTA: Special Courts, sections 23 to 30

POTA replaced Designated Courts with Special Courts, retained much of the machinery, and restored the appeal to the High Court.

The National Investigation Agency Act 2008: Special Courts, sections 11 to 22

This is the scheme in force, and it is the one to state.

Section 11. The Central Government shall, in consultation with the Chief Justice of the High Court, by notification, designate one or more Courts of Session as Special Court for the trial of Scheduled Offences, for such area or areas or for such case or class or group of cases as may be specified. The Explanation defines High Court as the High Court of the State in which the Court of Session to be designated is functioning.

Section 13. Notwithstanding anything in the Code, every Scheduled Offence investigated by the Agency shall be tried only by the Special Court within whose local jurisdiction it was committed. Sub-section (2) provides for transfer where, having regard to the exigencies of the situation prevailing in a State, it is not possible to have a fair, impartial or speedy trial, or it is not feasible to have the trial without occasioning a breach of the peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor or a judge, or it is not otherwise in the interests of justice.

Section 16. A Special Court may take cognizance of an offence without the accused being committed to it for trial, upon a complaint of facts constituting the offence or upon a police report of such facts.

Section 21. An appeal lies from any judgment, sentence or order of a Special Court, not being an interlocutory order, to the High Court, both on facts and on law. It is to be heard by a bench of two judges and, as far as possible, disposed of within three months of admission. Except as provided, no appeal or revision lies to any court from any judgment, sentence or order, including an interlocutory order, of a Special Court.

Section 22. A State Government may likewise designate one or more Courts of Session as Special Courts for the trial of offences under any or all the enactments in the Schedule, with the modifications the section sets out.

The National Investigation Agency Act 2008, in outline

The Special Court a modern terrorism case is tried in is constituted under this Act, so a complete answer on special courts must name it.

Chapter I, sections 1 and 2. Short title, extent and application, and the definitions, including Scheduled Offence, meaning an offence under an enactment listed in the Schedule, which includes the Unlawful Activities (Prevention) Act 1967.

Chapter II, sections 3 to 5. The constitution of the National Investigation Agency; its superintendence, which vests in the Central Government; and the manner of its constitution and the conditions of service of its members.

Chapter III, sections 6 to 10: how a case reaches the Agency. Section 6 is the mechanism: on receipt of information about a Scheduled Offence the officer in charge of the police station forwards a report to the State Government, which forwards it to the Central Government, which determines within a stated period whether the offence is a Scheduled Offence and a fit case to be investigated by the Agency, and may direct it to do so. Section 7 permits the Agency to transfer the investigation back to the State Government. Section 8 gives it power to investigate connected offences. Section 9 requires the State Government to extend assistance. Section 10 preserves the State's power to investigate a Scheduled Offence until the Central Government directs otherwise.

Chapter IV, sections 11 to 22: the Special Courts. The Central Government may constitute one or more Special Courts for the trial of Scheduled Offences, and a State Government may do likewise for offences investigated by the State; the Court is presided over by a judge appointed on the recommendation of the Chief Justice of the High Court; the sections provide for the place of sitting, jurisdiction, the power to try other offences, the protection of witnesses, the power to hold proceedings in camera and to withhold the identity of a witness, the precedence of the trial, and an appeal to the High Court to be heard by a Bench of two judges.

Chapter V, sections 23 to 26. The power of the High Courts to make rules, the power to remove difficulties, the rule making power and the laying of rules.

Why the appeal matters. Section 21 gives an appeal to a Division Bench of the High Court, on facts and on law, which is the remedy TADA withheld and POTA restored, and it is the strongest single answer to the objection in [Special Courts] that a special court removes the ordinary appellate structure.

The three features that make the modern scheme defensible

Worth stating, because they are the answer to the standard criticism.

The court is an existing Court of Session, designated. It is not a body created for the purpose, and its presiding officer is a serving judicial officer with security of tenure.

The Chief Justice of the High Court is consulted. The executive does not choose the court alone.

The appeal lies to the High Court, on facts and on law, to a bench of two judges. That restores the ordinary appellate structure which TADA had bypassed.

The objections that remain

Selection of cases. Which cases go to a Special Court is decided by the executive through the choice of statute and the reference to the Agency, so the accused's forum, procedure and bail regime are determined before any judge is involved.

Bar on revision. Section 21(3) excludes revision and appeal against interlocutory orders, which can leave an accused without a remedy against an order that matters.

Procedure. The court is ordinary; the procedure it applies is not, and the objections to that procedure are those in the four preceding chapters.

Special court compared with tribunal

MU pairs the two in a single note, and the pairing is a trap, because they are quite different institutions.

The next chapter takes tribunals, and [Tribunals After L. Chandra Kumar] takes the constitutional limit on them.

A worked example

An offence under the Unlawful Activities (Prevention) Act 1967 is committed in Pune and investigated by the National Investigation Agency.

Which court tries it? The Special Court within whose local jurisdiction it was committed, under section 13(1) of the NIA Act, being a Court of Session designated under section 11 in consultation with the Chief Justice of the Bombay High Court.

Can the trial be moved? Yes, under section 13(2), if a fair, impartial or speedy trial is not possible, or if there is grave risk to the accused, the witnesses, the Public Prosecutor or a judge, or if it is otherwise not in the interests of justice.

How does the case reach the court? The Special Court may take cognizance on a police report without committal, under section 16(1).

Where does an appeal go? To the High Court, on facts and on law, before a bench of two judges, under section 21, to be disposed of as far as possible within three months of admission.

And against an interlocutory order? Section 21(3) excludes appeal and revision, which is the objection noted above.

What it does NOT mean

A special court is not an executive tribunal. It is a criminal court presided over by a judicial officer.

It is not a new court. Under the modern scheme an existing Court of Session is designated.

Its existence does not make the procedure fair. The procedural objections are separate and are dealt with in the preceding chapters.

Designated Courts under TADA no longer exist. TADA lapsed in 1995, and an answer must be written on the NIA Act scheme.

Quick revision

• TADA ss.9 to 14: Designated Courts; s.14(5) allowed trial in the absence of the accused or his pleader for recorded reasons, subject to recall for cross-examination; s.16 in camera; s.19 appeal direct to the Supreme Court.
• POTA ss.23 to 30: Special Courts, appeal restored to the High Court.
• NIA Act 2008: s.11 designation of a Court of Session in consultation with the Chief Justice of the High Court; s.13 exclusive local jurisdiction with a transfer power; s.16 cognizance without committal; s.21 appeal to the High Court on facts and law before two judges, within three months as far as possible, with no other appeal or revision; s.22 State designation.
• Defensible because the court is an existing Court of Session, the Chief Justice is consulted, and the High Court appeal is restored.
• Objections that remain: executive selection of cases, the bar on revision, and the procedure applied.

Test yourself

1. Under which statute are the courts that try terrorist offences today constituted? The National Investigation Agency Act 2008, which designates existing Courts of Session as Special Courts.

2. Who is consulted before a Special Court is designated? The Chief Justice of the High Court of the State in which the Court of Session is functioning.

3. Where does an appeal from a Special Court lie under the NIA Act, and how is it heard? To the High Court, on facts and on law, before a bench of two judges, to be disposed of as far as possible within three months of admission.

4. What did TADA's appeal provision do that the modern scheme does not? It took the appeal directly to the Supreme Court, bypassing the High Court.

5. Give two features that make the modern scheme more defensible than TADA's. The court is an existing Court of Session presided over by a serving judicial officer rather than a body created for the purpose; the Chief Justice of the High Court is consulted in the designation; and the appeal lies to the High Court on facts and law.

Note the word offences in clause (1). Article 323B contemplates tribunals trying offences, which is the point at which it touches this paper: a tribunal trying an offence is a special court by another name.

Why they were created

The 42nd Amendment was enacted during the Emergency, and its tribunal provisions were justified on three grounds that are still made.

The backlog. The High Courts were said to be overwhelmed by service and revenue litigation.

Expertise. Service, tax and labour disputes were said to need members who understood the field rather than generalist judges.

Speed and cost. Tribunals were to have simple procedure, relaxed rules of evidence and no elaborate pleadings.

None of those is a bad reason. What made the scheme constitutionally controversial was clause (2)(d): the exclusion of the High Courts.

The Administrative Tribunals Act 1985

Parliament exercised the article 323A power by the Administrative Tribunals Act 1985, establishing the Central Administrative Tribunal and providing for State tribunals. Its section 28 excluded the jurisdiction of all courts except the Supreme Court, exactly as clause (2)(d) permits.

That Act is the vehicle for the constitutional litigation, and the two decisions that matter, the Sampath Kumar decision and L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, are taken in the next chapter.

What a tribunal is, and what it is not

Five features distinguish a tribunal from a court, and they are worth listing because MU's note asks for the comparison.

Composition. A tribunal ordinarily has both judicial and administrative or expert members. A court has judges.

Appointment. Members are appointed by the executive, often for fixed terms, and are frequently eligible for reappointment.

Procedure. Tribunals are not bound by the Code of Civil Procedure or by the Evidence Act in the same way, and clause (2)(c) of article 323A allows a law to prescribe their procedure and rules of evidence.

Jurisdiction. Conferred and confined by the statute.

Finality. The statute may attempt to make the tribunal's decision final, which is where the constitutional problem arises.

A worked example

Parliament enacts a law under article 323B establishing a Tribunal to try offences relating to foreign exchange, presided over by a retired civil servant with two members drawn from the revenue service, applying its own rules of evidence, with a bar on any appeal to a court and a provision that its decisions shall be final.

Is the subject within clause (2)? Yes: foreign exchange and import and export across customs frontiers is entry (b).

May a tribunal try offences? Yes, on the face of clause (1).

Is the composition valid? Doubtful. A body trying offences and imposing punishment exercises judicial power, and a tribunal composed without a judicial member exercising that power raises a serious objection.

Is the exclusion of appeal valid? No, on the reasoning in the next chapter: the High Court's power of judicial review under articles 226 and 227 cannot be excluded.

And article 136? It is preserved by clause (2)(d) itself, but a discretionary appeal to the Supreme Court is not a substitute for judicial review by a High Court.

What it does NOT mean

Tribunals are not unconstitutional. They are expressly contemplated by Part XIVA.

They are not courts. They exercise judicial functions without being part of the judiciary in the constitutional sense.

Article 323A is not confined to the Union. It permits a separate administrative tribunal for each State or for two or more States.

Article 323B is not confined to civil disputes. Its clause (1) speaks of disputes, complaints or offences.

Quick revision

• Articles 323A and 323B inserted by the 42nd Amendment 1976, in force 3 January 1977.
• 323A: Parliament may provide for administrative tribunals for service matters; clause (2) allows establishment, jurisdiction including contempt, procedure and rules of evidence, exclusion of all courts except the Supreme Court under article 136, transfer of pending cases, and supplemental provisions; clause (3) gives the article overriding effect.
• 323B: the appropriate Legislature may provide for tribunals for disputes, complaints or offences on the enumerated matters, including tax, foreign exchange, industrial and labour disputes, land reform, urban property ceiling and elections.
• The Administrative Tribunals Act 1985 exercises the 323A power and its section 28 excludes all courts except the Supreme Court.
• Five distinguishing features: mixed composition, executive appointment, relaxed procedure, statutory jurisdiction, and attempted finality.

Test yourself

1. Which amendment inserted Part XIVA, and when did it come into force? The Constitution (Forty-second Amendment) Act 1976, with effect from 3 January 1977.

2. What is the subject matter of article 323A? Adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or a State or a local or other authority, or a corporation owned or controlled by Government.

3. Which clause permits the exclusion of courts, and which court is preserved? Clause (2)(d) of article 323A, which permits the exclusion of the jurisdiction of all courts except the jurisdiction of the Supreme Court under article 136.

4. Name four matters listed in article 323B(2). Any four of: levy, assessment, collection and enforcement of any tax; foreign exchange and import and export across customs frontiers; industrial and labour disputes; land reform; ceiling on urban property; and elections to Parliament or a State Legislature other than the matters in articles 329 and 329A.

5. Why does a paper on national security examine tribunals? Because they are the other great departure from the ordinary court structure, and the constitutional question they raise, whether the High Court's jurisdiction can be excluded, is the same question that article 359 raises in Module III.

Held, continued. The tribunals will nevertheless continue to act as courts of first instance in the areas of law for which they were constituted, so it is not open to a litigant to approach the High Court directly, even where he questions the vires of statutory legislation, by overlooking the jurisdiction of the tribunal, except where the legislation creating the particular tribunal is itself challenged. Section 5(6) of the Act was held valid and constitutional, to be interpreted as the Court indicated.

Why it matters here. Four things, and each is examinable.

The four propositions to carry away

1. Judicial review by the High Courts and the Supreme Court is basic structure. Not merely important: inviolable, and therefore beyond the amending power. That is what makes clause (2)(d) unconstitutional notwithstanding article 323A(3), which purports to give the article overriding effect over every other provision of the Constitution.

2. A tribunal is supplemental, not a substitute. This is the departure from Sampath Kumar. The earlier decision accepted the tribunal as a substitute for the High Court; L. Chandra Kumar holds that nothing can substitute for the High Court's constitutional jurisdiction.

3. A tribunal may decide constitutional questions. It is competent to test the validity of statutory provisions and rules, which is an enlargement of what tribunals had been thought able to do.

4. But the litigant must go to the tribunal first. He cannot bypass it and go straight to the High Court, even to challenge the vires of a statute, unless what he challenges is the statute creating the tribunal itself.

The third and fourth propositions together are the practical rule: tribunal first, High Court Division Bench after.

Why this belongs in a paper on national security

Because the proposition is general. If the High Court's jurisdiction under articles 226 and 227 is part of the basic structure and cannot be ousted by a constitutional amendment, then no statute and no amendment can close the courts to a citizen complaining of unlawful State action.

That is the same proposition, arrived at from a different direction, as the one that makes the position after ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, impossible to repeat. In 1976 the courts were closed by a Presidential order under article 359. Since 1978 articles 20 and 21 cannot be suspended, and since 1997 the High Court's jurisdiction cannot be ousted. A student who links the two has understood why MU put special courts and tribunals in this paper.

The later decisions, in outline

The tribunal question did not end in 1997, and a modern answer should say so.

The Rojer Mathew decision of 2019 and the Madras Bar Association decision of 2021 deal with the conditions of service, tenure and manner of appointment of tribunal members, and with the validity of rules framed for them. Their theme is that a tribunal exercising judicial functions must be independent of the executive that appoints it, and that short tenures and executive-dominated selection undermine that independence.

This book has not read reports of those two decisions, and nothing is taken from them beyond the fact that the question of tribunal independence has continued to be litigated. A student writing about tribunals today should say that much and no more unless he has read them.

A worked example

A statute establishes a Tribunal for foreign exchange offences and provides that its decisions shall be final and shall not be called in question in any court.

Is the finality clause valid? No, to the extent that it excludes the High Court under articles 226 and 227 or the Supreme Court under article 32. On L. Chandra Kumar those jurisdictions are part of the inviolable basic structure.

Can the Tribunal decide whether the statute is constitutional? Yes. Tribunals under articles 323A and 323B are competent to test the constitutional validity of statutory provisions and rules.

Can a person go straight to the High Court to say the statute is void? No, unless what he challenges is the legislation creating the Tribunal itself. Otherwise he must go to the Tribunal first.

Where does he go afterwards? To a Division Bench of the High Court within whose jurisdiction the Tribunal falls.

What it does NOT mean

It does not abolish tribunals. It makes them supplemental.

It does not give a litigant a choice of forum. The tribunal is the court of first instance.

It does not mean every tribunal decision goes to a Division Bench as of right. The scrutiny is under articles 226 and 227, which are discretionary jurisdictions.

It does not settle the independence question. That has continued to be litigated.

Quick revision

• L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, seven judges, 18 March 1997.
• Clause (2)(d) of article 323A and clause (3)(d) of article 323B unconstitutional to the extent they exclude the High Courts under articles 226 and 227 and the Supreme Court under article 32; section 28 of the Administrative Tribunals Act 1985 and all similar exclusion clauses likewise.
• Judicial review by the High Courts and the Supreme Court is part of the inviolable basic structure.
• Tribunals are supplemental, not substitutes; they may test the validity of statutory provisions and rules; their decisions are subject to scrutiny by a Division Bench of the High Court; and a litigant must approach the tribunal first, except where the legislation creating it is challenged.
• The proposition is general, and it is why the closing of the courts in 1976 cannot be repeated.

Test yourself

1. What exactly was held unconstitutional? Clause (2)(d) of article 323A and clause (3)(d) of article 323B, to the extent they exclude the jurisdiction of the High Courts under articles 226 and 227 and of the Supreme Court under article 32; and section 28 of the Administrative Tribunals Act 1985 and the exclusion clauses in all other legislation under those articles, to the same extent.

2. What is the constitutional basis of that holding? That the jurisdiction conferred on the High Courts by articles 226 and 227 and on the Supreme Court by article 32 is part of the inviolable basic structure of the Constitution, which is beyond the amending power.

3. May a tribunal decide that a statutory provision is unconstitutional? Yes. Tribunals created under articles 323A and 323B are competent to test the constitutional validity of statutory provisions and rules.

4. May a litigant bypass the tribunal and go to the High Court? No, even to question the vires of a statute, unless what he challenges is the legislation creating the particular tribunal.

5. How does this decision connect to Module III? Because it holds that judicial review cannot be ousted, which together with the non-suspendability of articles 20 and 21 after 1978 makes the closing of the courts that happened in 1976 impossible to repeat.