Civil Liberties Under Pre-Independence Law in India

Three features connect it directly to modern law.

No offence is charged. The restraint is preventive, on reasons of State, with no immediate ground for a judicial inquiry.

No court is involved. The warrant is executive.

No period is fixed. The detention lasts while the Government thinks it necessary.

Corresponding Regulations were made for the Bombay and Madras Presidencies, and the three were the standing law for well over a century. The Regulation's afterlife is remarkable and worth a sentence in an answer: in the first of the prison cases brought by Sunil Batra, worked in [Human Rights of Prisoners], the Supreme Court expressed surprise that, going by the Punjab Jail Manual of 1975, Regulation III of 1818 still survived in free India's corpus juris, with all the sound and fury against detention without trial and the national homage to Gandhi.

The war statutes

The Defence of India Act 1915 was enacted during the First World War and empowered the making of rules for securing the public safety and the defence of British India, including rules providing for detention.

The Defence of India Act 1939 did the same in the Second World War, and the Defence of India Rules made under it provided for preventive detention. A.K. Gopalan records the terms of Ordinance XIV of 1943, one of the ordinances amending that Act, and they should be read against the modern statutes because the resemblance is complete. It provided for the apprehension and detention in custody of any person whom the authority empowered by the rules suspects, on grounds appearing to such authority to be reasonable, of being of hostile origin, or of having acted, acting, being about to act, or being likely to act in a manner prejudicial to the public safety or interest, the defence of British India, the maintenance of public order, His Majesty's relations with foreign powers or Indian States, the maintenance of peaceful conditions in tribal areas, or the efficient prosecution of the war; or with respect to whom the authority is satisfied that his apprehension and detention are necessary to prevent him from acting in any such prejudicial manner; and for the prohibition of such a person from entering or residing in any area, and for compelling him to reside in any area or to do or abstain from doing anything.

Set that beside section 3 of the National Security Act 1980, worked in [The National Security Act 1980], and the drafting is the same drafting: an authority, a subjective satisfaction, a list of prejudicial heads, and detention. What changed in 1950 was not the form of the power but the appearance of article 22 above it.

The Rowlatt Act

The Anarchical and Revolutionary Crimes Act 1919, treated in [The Rowlatt Act 1919 and What Followed], belongs in this list and is taken separately because of what followed from it.

The Government of India Acts

The Act of 1919 introduced dyarchy in the provinces and enlarged the legislatures. It contained no declaration of rights.

The Act of 1935 was, as A.K. Gopalan says, the previous Constitution of the Government of India. It established a federal structure with three legislative lists, a Federal Court, and provincial autonomy. It contained no bill of rights, a fact of the first importance for this paper, because the demand for one had been made repeatedly by Indian opinion and was refused. What it did contain was a list of subjects, and in it preventive detention already appeared as a head of legislation, which is why the framers in 1950 found the subject already distributed and placed it in Entry 9 of the Union List and Entry 3 of the Concurrent List.

The Federal Court could and did decide whether a legislature had exceeded its powers under the Act, which is judicial review of competence. What it could not do was hold a competent law void for taking away liberty.

What protection there was

An answer should not leave the impression that there was none.

Habeas corpus. The Presidency High Courts had the jurisdiction to issue the writ, and it was used. Its limit is the limit worked in [Habeas Corpus in England, and the Wartime Detention Cases]: the writ tests legality, and where the legislature has authorised detention on an official's satisfaction, the return is easily made.

The ordinary criminal law. An official who exceeded his authority was in principle liable like anyone else, which is Dicey's second meaning of the rule of law, and Indian courts applied it. ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, records that Lord Atkin's statement of the judges' duty to stand between the subject and encroachments on his liberty was referred to with approval by a Division Bench of the Nagpur High Court in a wartime detention case and accepted by a Division Bench of the Calcutta High Court, with the observation that those principles of liberty apply as much to India as elsewhere.

Statutory safeguards, occasionally. Some of the war time provisions required review of detentions by an advisory body, and that practice is the ancestor of the Advisory Board in article 22(4).

The four lessons for the modern law

An examiner is looking for the connection to the rest of the paper, not for a history lesson.

Preventive detention is not an Indian invention of 1950. It was in Indian law from 1818 and was normal, which is why the Constituent Assembly treated it as something to be regulated rather than abolished.

Article 22 is a limit, not a licence. Its clauses (4) to (7) were written against the background of Regulation III and the Defence of India Rules, and everything they require, grounds, a Board, a maximum period, was absent from those laws.

Article 13 was necessary because the statute book was full. The pre-constitutional laws did not vanish on 26 January 1950; they were continued by article 372 and tested against Part III by article 13, which is the subject of [The Position of Pre-Independence Laws Under the Constitution] and [Article 13, and the Doctrine of Eclipse].

The vocabulary is inherited. Public safety, public order, the security of the State, prejudicial acts: every phrase in Module I appears in the 1943 Ordinance, and the interpretation of those phrases begins from cases decided on the old laws.

A worked example

A person is detained in 1944 under the Defence of India Rules on the satisfaction of a District Magistrate that his detention is necessary to prevent him acting prejudicially to the public safety. He applies for habeas corpus.

What can the court ask? Whether the detaining authority was empowered by the rules, whether the rules were within the Act, and whether the Act was within the powers of the legislature under the Government of India Act 1935.

Can it ask whether the detention was unreasonable? Not as a constitutional question. There was no provision to measure the law against.

Could it examine the satisfaction? On the reasoning that prevailed in the wartime English decisions, no; and on Lord Atkin's dissent, adopted by two Indian High Courts, it could ask whether there was material on which such a satisfaction could reasonably be held.

What would be different after 1950? Article 22(5) would require the grounds to be communicated and a representation to be allowed; article 22(4) would require an Advisory Board within three months; article 22(7) would limit detention beyond three months; and article 13 with article 372 would let the court test the very law under which he was held.

What it does NOT mean

There was no rule of law at all in British India. There was, in Dicey's second sense: officials were liable in the ordinary courts for acting without authority.

The Federal Court had no power of review. It had review of legislative competence, which is not the same as review for infringement of rights.

All pre-constitutional detention laws were swept away in 1950. They were continued by article 372 and are void only to the extent of inconsistency with Part III.

Regulation III of 1818 was a wartime measure. It was ordinary standing law for over a century.

Quick revision

• No bill of rights before 1950; the Government of India Acts 1919 and 1935 distributed power without guaranteeing liberty; the Federal Court reviewed competence only.
• Bengal Regulation III of 1818, with Bombay and Madras counterparts: detention on reasons of State, no charge, no court, no fixed period; the detainee a State prisoner. Noticed as still surviving in the Punjab Jail Manual 1975 in the first of the Sunil Batra prison cases.
• Defence of India Acts 1915 and 1939 with rules and ordinances; Ordinance XIV of 1943, quoted in A.K. Gopalan v. State of Madras, AIR 1950 SC 27, provided for detention on the authority's suspicion on grounds appearing to it reasonable, on heads including public safety, the defence of British India, public order, relations with foreign powers and the efficient prosecution of the war.
• The Rowlatt Act 1919 belongs to the same family.
• Protection was procedural: habeas corpus in the Presidency High Courts, and the ordinary liability of officials.
• The four lessons: preventive detention was inherited, not invented; article 22 is a limit written against these laws; article 13 with article 372 was needed because the statute book was full; and the vocabulary of Module I is inherited from the 1943 Ordinance.

Test yourself

1. Why could no Indian court hold a law void for infringing liberty before 1950? Because there was no bill of rights to measure it against, the Government of India Acts distributing power without guaranteeing rights, and the Imperial Parliament being sovereign.

2. Describe Bengal Regulation III of 1818 in three features. No offence is charged, the restraint being preventive on reasons of State with no immediate ground for judicial proceeding; no court is involved, the warrant being executive; and no period is fixed, the detention lasting while the Government thinks it necessary.

3. What does Ordinance XIV of 1943 show about the continuity of drafting? That the modern form, an empowered authority, a subjective satisfaction, a list of prejudicial heads and detention to prevent such acts, was already complete before the Constitution, so what changed in 1950 was not the form of the power but the appearance of article 22 above it.

4. What protection did exist, and what was its limit? Habeas corpus in the Presidency High Courts and the ordinary liability of officials who exceeded their authority; the limit was that the writ tests legality only, so that where the legislature had authorised detention on an official's satisfaction the return was easily made.

5. Why did the Constitution need article 13 as well as Part III? Because the pre-constitutional statute book was continued rather than repealed, so a provision was required to make laws in force immediately before the commencement void to the extent of their inconsistency with Part III.