The Safeguards Gathered, and the Safeguards Against Misuse
Chapter Forty-Two
Syllabus topic 2, "Preventive Detention and Indian Constitution"
Pages 189 to 192 of 657
In one line
Three layers: what the Constitution guarantees, what the statute adds, and what the courts have built on top of both.
In the wording a student can write in an exam: the safeguards against preventive detention in India operate at three levels. The constitutional safeguards are in article 22(4) to (7): the three month limit, the Advisory Board, the communication of grounds and the opportunity of representation. The statutory safeguards are in the detention Act itself: under the National Security Act 1980 the periods in sections 3(4), 8, 10, 11 and 13, the approval and reporting requirements, the composition of the Board, and the powers of revocation and temporary release. The judicial safeguards are the requirements the courts have derived from articles 14, 21 and 22 read together after Maneka Gandhi v. Union of India, AIR 1978 SC 597: relevance, proximity, application of mind, intelligibility, supply of material, and expedition.
Layer one: the constitutional safeguards
Four, and they cannot be taken away by any legislature.
1. The three month limit and the Advisory Board, article 22(4). No law may authorise detention beyond three months unless a Board of persons who are, have been, or are qualified to be appointed as, Judges of a High Court has reported sufficient cause before the three months expire, or the person is detained under a Parliamentary law made under clause (7)(a) and (b).
2. Communication of the grounds, article 22(5). As soon as may be.
3. The earliest opportunity of making a representation, article 22(5). Not merely permission to represent.
4. The limits on clause (7), and the proviso to clause (4)(a). Only Parliament may dispense with the Board or fix a maximum, and even a favourable Board report cannot authorise detention beyond Parliament's maximum.
Layer two: the statutory safeguards
Under the National Security Act 1980, and the periods are what make them real.
On the making of the order. Section 3(3) limits delegation to a District Magistrate or Commissioner of Police, by written order, for three months at a time. Section 3(4) requires a forthwith report and makes the order lapse in twelve days, or twenty, without approval. Section 3(5) requires a report to the Central Government within seven days.
On the grounds. Section 8(1): as soon as may be, ordinarily five days, fifteen only on exceptional circumstances and reasons recorded in writing, with the representation to be made to the appropriate Government.
On the Board. Section 9: three members of the prescribed description. Section 10: reference within three weeks with the grounds, the representation and the officer's report. Section 11: report within seven weeks, opinion in a separate part, majority prevails.
On the outcome. Section 12(1): a favourable report permits confirmation. Section 12(2): an adverse report compels revocation and release forthwith.
The Safeguards Gathered, and the Safeguards Against Misuse
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.
The Safeguards Gathered, and the Safeguards Against Misuse
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.
- What preventive detention is, in two sentences, and the constitutional authorisation.
- Layer one: the four constitutional safeguards, with the article and clause for each.
- Layer two: the statutory safeguards with the periods, using the National Security Act as the example.
- Layer three: the six judicial safeguards, with one case each.
- The two situational rules: custody, and a second order.
- What is missing: the four gaps.
- The 44th Amendment's unnotified section 3, and A.K. Roy.
- 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.
The Safeguards Gathered, and the Safeguards Against Misuse
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.
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.