Article 22(4): The Three Month Rule and the Advisory Board
Chapter Twenty-Two
Syllabus topic 2, "Preventive Detention and Indian Constitution"
Pages 107 to 110 of 657
In one line
Nobody may be held under a preventive detention law for more than three months unless a board of High Court judges has said within those three months that there is sufficient cause.
In the wording a student can write in an exam: article 22(4) provides that 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, with a proviso that nothing in that sub-clause shall authorise detention 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).
The clause taken apart
"No law providing for preventive detention shall authorise." The clause operates on the legislature. It is not a direction to the detaining authority; it is a limit on what any Act may permit. An Act that allowed four months without a Board would be void to that extent.
"For a longer period than three months." Three months from the date of detention.
"Unless (a) an Advisory Board ... has reported before the expiration of the said period of three months." Three requirements are packed in: there must be a Board of the prescribed composition; it must have formed the opinion that there is sufficient cause; and it must have reported before the three months expire. A report on the ninety first day does not save the detention.
"Consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court." Three categories: sitting judges, former judges, and persons qualified for appointment. The third is the widest and it is the one the 44th Amendment would have removed for the Chairman.
The proviso. Even a favourable Board report cannot authorise detention beyond the maximum period prescribed by Parliament under clause (7)(b).
"Or (b) such person is detained in accordance with ... any law made by Parliament under sub-clauses (a) and (b) of clause (7)." This is the exception, and it is examined in [Article 22(7): What Parliament May Prescribe].
How the National Security Act works the clause out
Section 9. The Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards. Every such Board shall consist of three persons who are, or have been, or are qualified to be appointed as, Judges of a High Court, appointed by the appropriate Government.
Article 22(4): The Three Month Rule and the Advisory Board
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.
Article 22(4): The Three Month Rule and the Advisory Board
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.
Article 22(4): The Three Month Rule and the Advisory Board
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.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.