Upholding ‘Executive Supremacy’ over Personal Liberty: The new downturn of the Constitutional Court

In this article, the author seeks to question the court's position that it cannot scrutinise the 'subjective satisfaction' of a detaining authority under the Public Safety Act. The author while highlighting the shortcomings in the court's reasoning also discuss the constitutionality of the advisory board formulated under the Public Safety Act on the ground that it violates Article 22(5) of the Constitution and derogates from the very idea of 'constitutional morality'.

[dropcap]O[/dropcap]N February 8, Jammu & Kashmir (J&K) High Court dismissed a habeas corpus petition which challenged the preventive detention of Senior Advocate and J&K High Court Bar Association President Mian Abdul Qayoom under the draconian J&K Public Safety Act, 1978 (PSA).

Senior Advocate and Mian Abdul Qayoom had been under detention since August 5, when the central government abrogated the special status of Jammu & Kashmir under Article 370 of the Constitution of India, with a view to preventing him from acting in any manner 'prejudicial' to the maintenance of 'public order'.

Before going into the details, it is paramount to understand what the PSA is all about.

The PSA is a regulatory detention law that allows arrest and detention up to two years without a warrant, specific charge or trial "in the case of a person acting in any manner prejudicial to the security of the state".

The law also mandates the forming of an advisory board/Detention authority, in consonance with Article 22(5) of Indian Constitution, which hears the representation of the detenue and decides on the validity of the detention.

The supremacy of 'subjectivity of the executive'

Among other things, the court in this judgement revived the logic of 'executive supremacy' to engender the fears which had led to the horrific ADM Jabalpur case. Stating that there was limited scope under Article 226 of the Constitution to review a detaining order, the judgment observed:

"…subjective satisfaction of a detaining authority to detain a person or not, is not open to objective assessment by a Court. A Court is not a proper forum to scrutinise the merits of administrative decision to detain a person".

If this ratio were to be followed in spirit, it delegates absolute and unqualified discretion to the state in matters of detention laws leaving no scope for judicial review of the said decision, thereby reducing the right to personal liberty to sheer mockery. But is it the settled legal principle? The answer to this is in the negative.

There is no trace of doubt that the subjective satisfaction of the executive is not insusceptible from judicial reviewability. This position was sufficiently highlighted in Anant Singh v. State of Bihar, wherein the apex court while setting aside a preventive detention order observed:

"It (Detention) has to be construed keeping Articles 21 and 22 of the Constitution in mind. Here no supposed object of the Act can be looked at to defeat the aforesaid Articles of the Constitution."

It clearly expanded the scope of judicial review to test the arbitrariness decision of the executive including when the personal liberty of an individual is at stake. It was further aptly described by the apex court in Anuradha Basin v. Union of India when it said that "the existence of the power of judicial review is undeniable even in orders passed by the executive pertaining to law and order situation."

The very essence of constitutionalism is that no organ of the State may accumulate or exercise powers beyond what is specified in the Constitution.

Moreover, the courts in India observes the 'concept of fairness' in preventive detention laws. Fairness denotes "abstention from abuse of discretion" and proper "application of mind" to come to a decision by the detaining authority [See Union of India v. Saleena]. This being the position of law, the court can unquestionably review the subjective satisfaction of the executive, especially the detention boards in cases of preventive detention laws and can call for materials for perusal and strike down the order if it finds that the same is without application of mind or proper consideration by the detaining authority.

Now, what do phrases like the application of mind and real and proper consideration include? One of the most important considerations is the necessity of the detention order. Article 21 is the centre of the fundamental rights and Article 22(3)(b) its exception, it is obligatory for the detention authority to prove that the actions of the detenue wouldn't have been controlled under the ordinary criminal proceedings and then and only then can the preventive detention law be resorted to [See here and here].

If the power of detention is used as a substitute for criminal prosecution without any necessity, it signifies malafide intention or 'colourable exercise of power' by the executive and renders the order illegal and invalid.

In the present case, the imposition of the PSA on Mian Abdul Qayoom should have been received with more scepticism by the court. Usually, PSA is charged when the person has the capability to organize people in a movement and that movement has the potential to cause harm to 'public order' or 'security of the state'. These acts require planning and movement of people and consequently communication between them. Even the judgement acknowledges the same when it says that "acts under PSA are preceded by a good amount of planning and organisation" and without these, it is unfeasible for a person to endanger the public order.

In the context, when J&K was under a de facto emergency since Aug 5 with complete internet shutdown and a heavy military presence, it would have been insurmountable for a person to act or organize any acts attracting the provisions of PSA.

The probable actions of the detenue would have easily been controlled by the existing Section 144 and no recourse to PSA was necessary at the very first place. By using the power of detention as a substitute for ordinary criminal proceedings with no justification of the same, the detaining authority has acted with malafide intention rendering the detention order illegal at the very first instance.

Constitutionality of the advisory board under PSA

The Constitution of India is transformative in nature. It implies that it does not remain stagnant and new developments and interpretations unfold themselves in light of the social change in society to 'challenge the hegemonic structure of power and secure the values of dignity and equality of its citizens'.

One such development is constitutional morality. Justice D Y Chandrachud, in Puttaswamy-I and Navtej Johar, defined it as "commitment to letter and spirit of Constitution ….. conducting oneself in a way which furthers constitutional vision."

Despite having no clear agreement of its exact powers and limitations, the apex court in the last three years has relied on this concept substantially to strike down discriminatory laws including triple Talaq, adultery, section 377 among others.

In the present case, once a person is booked under the PSA, authorities have to refer the case to the PSA Advisory Board which will decide the validity of the detention. The Board was originally meant to keep a check on the government's arbitrary use of the PSA and for that reason, the Chief Justice of the J&K High Court was made part of the panel to appoint its chairperson and other members and the chairman and members of the board were usually the serving or retired judges of any High Courts. This was in consonance with clause 4 and clause 5 of Article 22 of the Constitution which vouches for 'right to fair representation' before the detaining authority [See here & here].

But in May 2018, there was an amendment to the act that excluded the role of the judiciary and vested the powers to select the chairman and members of the Board to a three-member panel of bureaucrats led by the chief secretary. The Chief Justice's role was limited only in cases when sitting judges were appointed as chairman and members.

This amendment essentially ensured that the government would have absolute control over the decisions of the advisory board and executive supremacy would be maintained. This is a blatant violation of letter and spirit of Article 22(5), which gives detainee the right to appear before an independent and impartial body and consequently violates constitutional morality itself. Therefore, the constitution of the advisory body is unconstitutional in nature and the orders rendered by it pertaining to detention of Mian Abdul Qayoom are illegal and invalid.

Article 22 (5) of the Constitution of India reads as:

Article 22: Protection against arrest and detention in certain cases

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order

Under Article 21, a person can be deprived of his personal liberty only in accordance with 'procedure established by law' and since preventive detention substantially curtails an individual's liberty, the procedure must strictly be in consonance with Clause (4) and (5) of Article 22 of Indian Constitution. Any irregularity or deviation, whether of form or substance, which is to the disadvantage of the detenue would render the detention invalid. Failure to observe even a single procedural safeguard makes detention bad.

Conclusion

The Public Safety Act has a long history of misuse for curbing political dissent. This is clearly visible by the disproportionate rate of quashing of detention orders by the High Court, nearly 80 per cent, between March 2016 and July 2017.

The officials who misuse this law are never punished, even though the lives of the victims are forever changed. This reality has puts the courts on alert and hopefully, the Jammu and Kashmir High Court will take all of it into consideration while hearing the constitutionality of Public Safety Act, which has been challenged under Article 226 earlier this year.

The author is pursuing B.A.LL.B (Hons.) from Gujarat National Law University (GNLU).