A. G. NOORANI
ON 23 November 1977, Indian Express published my article entitled “Preventive Detention Revived”. Its opening paras read thus: “The Jammu & Kashmir Public Safety Ordinance 1977, is far too severe and repressive a measure to make any of the laboured arguments advanced in its defence by the State’s Chief Minister, Sheikh Mohammad Abdullah, and his Deputy Mirza M. A. Beg, at their press conference on 8 November, convincing. Neither the “peculiar” situation prevailing in the State nor the necessities of defence can justify the acquisition of unfettered power over the liberty of the citizen and the freedom of the press.
“The Ordinance replaces the Defence of India Act, 1971, an avowedly emergency measure which lapsed in September, and adds some distinctive features of its own. The definition of a “prejudicial act” is widened to include “any act which is intended or likely to prejudice the State’s relations with the Union of India or other States in the Union”. This, to say the least, is a very odd provision in the criminal law of a member of a democratic federation. A “prejudicial report” is any report or statement, “whether true or false”, which incites the commission of a “prejudicial act”.
“A person found guilty of a prejudicial act, so defined, is punishable with imprisonment which may extend up to two years. All offences under the Ordinance are non-bailable. The editor of a journal which possesses, let alone publishes, a “prejudicial report” can be required to reveal the name and address of its author. Even the DIRs did not confer this power. It cannot be mitigated by the Rules proposed to be framed, as Beg Saheb assures us, because delegated legislation cannot cure the vice in the present statute.
“The State Government is empowered to restrict the circulation within the State or prohibit importation into the State of any publication if it is satisfied that the action is necessary inter alia for preventing any activity likely to affect public order. Against such an order the only remedy which the aggrieved person has is to make a representation to the Government; an appeal from Caesar to Caesar. If the representation is rejected, he can move the High Court; on the merits but “on the ground that he was not given a reasonable opportunity of being heard.” In other words, if the State Government is careful to go through the formalities of hearing the judicial remedy is barred. Contrast this with S. 24 of the Prevention of Publication of Objectionable Matter Act, 1976 which enabled the High Court to go into the merits of executive action.
“As for the power to detain persons without trial suffice it to say that the Ordinance enables the executive, if it so chooses, to detain a person for as long as two years, without furnishing him with the grounds on which the order is made and without obtaining the opinion of the Advisory Board.
“Such a law enacted elsewhere in India would be instantly struck down by the courts as violative of the fundamental right to freedom of speech and expression (Art. 19) and to protection against arbitrary arrest and detention (Art. 22). But the Constitution (Application to Jammu & Kashmir) Order, 1954, made by the President under Art. 370, extended the fundamental rights to the State with modifications which rob Articles 19 and 22 of their worth altogether. As extended to Jammu and Kashmir, “reasonable restrictions” on the rights conferred by Art. 19 means “such restrictions as the appropriate Legislature deems reasonable”; not the courts as in the rest of the country. The Order expressly exempts State laws on preventive detention from challenge on the ground of violation of Art. 22. The Presidential Order was made for a period of five years but it has been extended repeatedly, the last time in 1974 for another five-year term.” It lasted for 25 years till 1979.
To their credit, neither Sheikh Saheb nor Beg Saheb, who became friends ever since I first met them on 16 September 1962, when they were in prison in Jammu, took offence. That was left to met amoral character, D.D.
Thakur, who created a rift between them and conspired to topple Farooq Abdullah from Chief Ministership in 1984. My worst fears about the PSA have proved true especially since the outbreak of the militancy in 1989.
Unlike Article 22 of the Indian Constitution (1950), the Constitution of J&K (1956) contains no provision for preventive detention because it contains no fundamental rights either, from which an exception – preventive detention – was necessary to carve out.
It was Sheikh Saheb’s strong desire that the fundamental rights be available to Kashmiris from Kashmir’s own Constitution. The Constituent Assembly of Jammu & Kashmir first met on 31 October 1951. On 7 November 1951, Mirza Mohammed Afzal Beg moved a resolution in the Assembly for the appointment of an Advisory Committee on Fundamental Rights and Citizenship. One of its members was – Syed Mir Qasim.
When Kashmir’s delegation led by Sheikh Saheb met Nehru in Delhi on 20 July 1952 it insisted on the State having fundamental rights in its own Constitution. Nehru disagreed. He wanted to apply Part III of India’s Constitution to J&K. The Delhi Agreement of July 1952 left it open. Nehru’s intentions were not secret even then.
He ordered Sheikh Saheb’s dismissal from office and arrest on 9 August 1953. His accomplices in the State, whose political heir still shut about in power in Srinagar, complied with his wishes. On 3 February 1954 Mir Qasim presented to J&K’s Constituent Assembly the Report of the Basic Principles Committee relating to fundamental rights and citizenship. The Drafting Committee followed suit on 11 February 1954. Four days later the rump Constituent Assembly complied. On 14 May 1954 came the President of India’s Omnibus Order under Article 370 applying to J&K provisions of India’s Constitution including Article 22 which provides for preventive detention. With one difference; the Legislative power on this subject was to vest in the State’s Legislature not the Indian Parliament. In Article 19 the words “reasonable restrictions” would mean ones which the Legislature “deems reasonable”.
This is how J&K derived power to enact the PSA. In its nearly 40 years of its operation it has wreaked havoc. Like all such laws, it is patently, manifestly and demonstrably unconstitutional. Article 21 of the Indian Constitution applies to J&K. It says “no person shall be deprived of his life or personal liberty except according to procedure established by law.” The Supreme Court has repeatedly held that the procedure must be fair and just and must conform to other fundamental rights. Article 22 carves out an exception; namely preventive detention. But the Supreme Court has also ruled that a detenu is not a convict and preventive detention is an administrative Order not a punishment for a crime (Sampat vs. State of Jammu & Kashmir AIR 1969 S.C. 1153; para 10).
Why then are detainees lodged in a prison? Section 53 of the Indian Penal Code lists six forms of “punishment”. The fourth among them is “imprisonment” (I assume that the Ranbir Penal Code has a similar provision). Without exception, every law for preventive detention empowers the Government to determine the place and the conditions for detention. Section 10 of the PSA does that. This is a devious and dishonest way to imprison political opponents without trial; a manifestly unconstitutional act.
In 1918, nearly a century ago the hated Rowlatt Report said: “No interference with liberty must be penal in character. Nothing in the nature of conviction can be admitted without trial in strict form. If in the supreme interests of the community the liberty of individuals is taken away, an asylum must be provided of a different order from a jail” (“Sedition Committee Report 1918”; p. 206). Two conditions must be noted. First, deprivation of liberty must be ordered only in the “supreme interests” of the community. Secondly, the suspect must be put in an asylum which is different “from a jail”.
The detainee is sent to prison without trial. Inquiry by an Advisory Board is a farce. Courts have not always helped. An Advisory Board comprises three persons “who are, or have been, or are qualified to be appointed as Judges of a High Court”. A lawyer of 10 years’ standing, a party hack, qualifies.
Why is preventive detention at all necessary? S. 41 of the Criminal Procedure Code empowers a police officer to arrest any person against whom “a reasonable suspicion exists” of complicity in a crime. Under S. 109 security bonds can be ordered to be executed by persons suspected to be about to commit a cognisable offence. Thus at the very first moment the mischief can be nipped in the bud. Methods used by Irish terrorists were far more deadly and sophisticated than those used by militants in Kashmir. Time and again we are told in India that (a) the country will become ungovernable if the state is deprived of the power of preventive detention and (b) “terrorism” cannot be combated save by the drastic invasions of personal liberty which Indian statutes make.
Britain’s experience in Northern Ireland exposes the utter falsity of both propositions. They provide a glaring contrast to our experience. Internment (preventive detention) started in Northern Ireland on 9 August 1971. On 5 December 1975 the Secretary of State for Northern Ireland Merlyn Rees announced that the last 73 detenus would be set free and preventive detention would be ended; after a mere four years
There is another aspect which covers every State. The 44th Constitution Amendment Act enacted during the Janata era in 1979 made it mandatory, by amending Article 22(44), that the advisory board should consist of a chairman who “shall be a serving judge” of the High Court of that State while the other members could be serving or retired judges of any High Court. It empowered the Government to notify the dates on which its provisions should come into force. The Act received the President’s assent on 30 April 1979. On 19 June 1979 certain provisions were brought into force. Some others were, likewise, brought into force by notifications on 1 August 1979 and on 5 September 1979. But to this day the amendment to Article 22 has not been brought into force. The 44th Amendment also amended Article 22(7) by deleting altogether the clause which enables detention for a period longer than three months without obtaining the opinion of the advisory board.
When the National Security Act (NSA) was challenged in the Supreme Court, it was argued that it was nothing less than a fraud on the Constitution for the executive to abuse the power of notification of dates entrusted to it by simply refusing to bring a provision enacted by Parliament into force. It is a case of nullification of the legislative will by deliberate executive inaction. The Bench was split on this. Two judges held that since more than two and a half years had passed after the Amendment was enacted – the court’s judgment was delivered on 28 December 1981 – the Government was bound in law to notify the coming into force of Amendment to Article 22. They were Justice A. C. Gupta and V.D. Tulzapurkar. Three others dissented. So, by a narrow majority, the Government’s fraud passed muster.
In truth, neither NSA nor the PSA is necessary. To repeat, Section 41 of the Cr.P.C. empowers “any police officer” to arrest, without an order from a magistrate and without a warrant, any person about whom “a reasonable suspicion exists,” of his having “been concerned” in any cognizable offence. Thus, at the decisive initial stage of nipping any trouble in the bud – be it terrorism or a communal riot – the police have ample powers of prevention under the ordinary law of the land. But it is required thereafter to put him up before a Magistrate within 24 hours (Section 57) and obtain his remand for investigation as we have noted (Section 167). It is required, in sum, to obtain proof.