Former civil servants write to the Minister of Justice on the advisory council for preventive detention

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We are a group of former civil servants from across India and Central Services who have worked with Central and State Governments during our careers. As a group, we have no affiliation with any political party but believe in impartiality, neutrality and commitment to the Constitution of India.

You would know that art. 22(4) of the Constitution of India was amended by the Constitution (Forty-fourth Amendment) Act, 1978. Section 3 of this amending Act provides that the Advisory Council, to be constituted to consider the justification of preventive detention under this section, shall be appointed on the recommendation of the Chief Justice of the High Court; it must be headed by a sitting judge of that High Court and have at least two sitting judges/former judges of any High Court as members of the Council. Said Article 3 also deleted Article 22(7)(a) of the Constitution, thus removing the provision authorizing preventive detention without the advice of an advisory council.

These amendments sought to limit the arbitrary power of governments to appoint to the Advisory Council any person qualified to be a judge of a High Court, and to ensure that no preventive detention could be carried out or continued without obtaining the advice of the Advisory Council. Commission within 2 months of detention. These provisions have not yet entered into force since a notification giving effect to Article 3 of the 44th Constitutional Amendment has not been issued.

At present, any barrister qualified to be a High Court judge can be appointed to the Advisory Council. Indeed, any lawyer with ten years or more of practice can sit on an advisory board. This provision is therefore vulnerable to abuse by governments which, instead of appointing neutral and independent members to the Council, can appoint persons of their own choosing, including those who owe allegiance to the political party in power.

A look at the Objects and Purposes of the Constitution (Forty-Fourth Amendment) Act 1978 explains why Parliament, soon after the emergency experience of 1975-77, found it necessary to control arbitrary preventive detentions. Paragraph 1 of the Objects and Reasons is quoted below:

“Recent experience has shown that the fundamental rights, including those to life and liberty, granted to citizens by the Constitution are liable to be suppressed by a passing majority. It is therefore necessary to provide adequate guarantees against the repetition of such an eventuality in the future and to assure the people themselves of an effective voice in determining the form of government under which they should live. This is one of the main purposes of this bill.

Successive governments of the Union have not, however, notified a date for the entry into force of this constitutional amendment which was adopted by Parliament in 1978. It is not open to the Indian government to judge the wisdom of the Parliament. , who was convinced of the necessity of amending clause (4)(a) and deleting clause (7)(a) of section 22 through the Constitution (Forty-fourth Amendment) Act, 1978.

The provision empowering the Government of India to give notice of the coming into force of various provisions of the Constitution (Forty-fourth Amendment) Act was intended to give the Government flexibility in this regard. It would be a travesty if this provision were conveniently used by the government to deny legislative intent by refusing to give notice of the effective date of the Constitution (Forty-fourth Amendment) Act. The unconscionable 43-year delay in issuing this notification has resulted in a shameless abuse of preventive detention laws in gross violation of human rights and a gradual erosion of our cherished democratic values.

We therefore urge the Government of India to immediately notify an effective date for Section 3 of the Constitution (Forty-fourth Amendment) Act 1978.

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