LLM Group 1 Constitutional and Administrative Law National Security Public Order and Rule of Law 2018 Question Paper with Solutions

For full marks, cover: the constitutional authorisation in Article 22 and the legislative competence entries; the statutes themselves, arranged rather than listed; the safeguards constitutional, statutory and judicial, taken separately; the safeguard that was enacted and never notified; and an assessment. The question says "laws and safeguards", so both halves need real weight.

The constitutional authorisation

Article 22 is the source. Clauses (1) and (2) give an arrested person the right to be told the grounds of arrest, to consult and be defended by a legal practitioner of his choice, and to be produced before the nearest magistrate within twenty four hours. Clause (3) switches all of that off for a person detained under a preventive detention law. Clauses (4) to (7) supply the substitute regime.

The general detention statutes. The Preventive Detention Act, 1950, the first, upheld in A.K. Gopalan v. State of Madras, AIR 1950 SC 27, though section 14, which barred a detenu from disclosing the grounds to a court, was struck down as it made the right to a representation illusory. It lapsed in 1969. The Maintenance of Internal Security Act, 1971 replaced it, became the instrument of the 1975 Emergency, was amended during it so that grounds need not be communicated at all, and was repealed in 1978. The National Security Act, 1980 is the general statute today, permitting detention for up to twelve months on grounds of the defence of India, relations with foreign powers, the security of India, the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community.

The economic offence statutes. COFEPOSA, 1974, the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, permits detention to prevent smuggling, abetment of smuggling, transporting or concealing smuggled goods, dealing in them or harbouring smugglers; the maximum is one year, or two years for a person operating in a smuggling affected area. The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 does the same for narcotics.

Three, the earliest opportunity of making a representation.

Four, clause (6) permits the authority to withhold facts it considers against the public interest to disclose, which is a limitation on the third safeguard rather than a safeguard.

Statutory. Each Act adds detail: time limits for reference to the Board and for its report, usually seven weeks and eleven weeks under the NSA and COFEPOSA; the maximum period of detention; the right to appear in person before the Board; and revocation powers in the Central Government. Note the counter measures too: section 5A of COFEPOSA provides that where an order is founded on several grounds and one is vague or irrelevant, the order is not thereby invalidated, which reverses the judicial rule in Ram Krishan Bhardwaj for that Act.

Judicial, and this is where the real protection lies.

Harikisan v. State of Maharashtra, AIR 1962 SC 911. Grounds served in English on a detenu who did not read English, with an oral explanation, were held insufficient. Communication of grounds means communication in a language the detenu understands, because clause (5) ties the grounds to the making of a representation. The same reasoning requires supply of the documents relied on, and non supply of relied upon material is today the commonest successful ground of challenge.

Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, and Arun Ghosh v. State of West Bengal, (1970) 1 SCC 98. Hidayatullah J.'s three concentric circles: law and order the widest, public order within it, security of the State innermost. Arun Ghosh supplies the test: not the gravity of the act but its potentiality, whether it disturbs the even tempo of the life of the community or wrongs only an individual. A detention order reciting ordinary crime, however serious, is made under the wrong head. In June 2025 the Supreme Court quashed the preventive detention of a law student in Madhya Pradesh under the NSA on exactly this ground.

The safeguard that was enacted and never given

Section 3 of the Constitution (Forty fourth Amendment) Act, 1978 amends Article 22 to reduce the three month period to two months and to require the Advisory Board to be constituted in accordance with the recommendation of the Chief Justice of the appropriate High Court, which would take the Board's composition out of executive hands. That section has never been brought into force: the commencement notification has not been issued by any government of any party in almost fifty years, and A.K. Roy held that the Court cannot compel the executive to bring a law into force. The three month rule and an executively constituted Board therefore continue to operate. Say this in the exam.

Assessment

The safeguards that work are procedural and verifiable on the record: was a ground vague, was the representation decided promptly, was the relied upon document supplied, was the language usable, is the link live, was the fact of custody considered. Courts are institutionally competent to answer these questions and quash detentions on them in large numbers.

Conclusion. Preventive detention in India rests on Article 22, which authorises it in clause (3) by removing the ordinary protections of clauses (1) and (2), and limits it in clauses (4) to (7) by a three month leash, an Advisory Board, communication of grounds and an opportunity to represent. The statutes operating under it are the National Security Act, 1980 as the general law, COFEPOSA and the NDPS detention Act for economic and narcotic offences, and State Goonda Acts under Entry 3 of List III.

The safeguards that matter in practice are almost all judicial: one vague ground destroys the whole order, unexplained delay in deciding a representation is itself unconstitutional, grounds must be supplied in a language the detenu reads together with the material relied on, the link between the prejudicial act and the order must be live, the satisfaction must be the authority's own and must take account of existing custody or bail, and a detention founded on law and order rather than public order is made under the wrong power.

What the Constitution does not permit any court to ask is whether the person should be detained at all. And the safeguard that would have tightened the regime most, the two month period with an Advisory Board chosen on the Chief Justice's recommendation, was enacted in 1978 and has never been notified, which is the plainest measure of how the safeguards are regarded by those they bind.