Article 22(7): What Parliament May Prescribe

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.