OPINION

Liberty at the government’s whim

Suhrith Parthasarathy  

Fundamental rights, we have been repeatedly been told, do not exist in silos. The values inherent in the rights to equality, freedom of expression and association, and to life and personal liberty are deeply intertwined, with each right deriving meaning from the other. Under this conception, our right to be treated with equal concern demands that we are allowed to speak freely, that our movement is unrestrained, and that any limitation placed on our personal liberty is founded on laws that are just, fair, and reasonable. But, despite the theoretical affirmation of this idea, judicial practice is permeated by cases where some laws are seen as special, as untouched by the rigours of due process. Prime among them, as a recent judgment of the Jammu and Kashmir High Court in Mian Abdul Qayoom v. State of J&K shows us, are laws providing for preventive detention — in this case, the Jammu and Kashmir Public Safety Act of 1978 [PSA].

The background

The petitioner before the court was the 76-year-old Mian Abdul Qayoom, who is the president of the High Court’s Bar Association at Srinagar. He was arrested originally in the lead-up to the Union government’s decision on Article 370 of the Constitution and has since been detained for more than six months in a jail at Agra, with a view, the government says, to “preventing him from acting in any manner prejudicial to the maintenance of public order”.

Mr. Qayoom submitted in court that the grounds for his detention were not only indistinct and arbitrary but that the government’s order invoked a brace of first information reports lodged way back in 2008 and 2010, for which he had already faced detention. According to him, the order also made vague references to his purported advocacy of secessionist ideology, without, in fact, specifying clearly whether there was at all any criminal charges placed against him. What is more, the detention, he submitted, did not take into account his rapidly deteriorating health: according to his family, as a report in the Hindustan Times states, Mr. Qayoom not only ails from diabetes and heart problems — with a doctor having advised an open heart surgery just before his detention — but he is also surviving on only one kidney.

The High Court, in its judgment, opened with the now customary panegyric on freedom. The right to personal liberty, wrote Justice Tashi Rabstan, is a “most precious right”. It has been held, he added, to be “transcendental, inalienable and available to a person independent of the Constitution”. And the right is not to be denied “except in accordance with procedures established under law” and that procedure, as held in Maneka Gandhi v. Union of India , had to be “just and fair”.

A ‘standalone’ law

A person unacquainted with the workings of our judiciary would hardly be mistaken in thinking that the court, having appealed to the powers of liberty, would then render its findings on whether the detention in question was justified as a matter of both law and fact. But the court here, in what has become an increasingly familiar routine, did no such thing. It instead held that preventive detention laws stand alone, that they are compelled by a “primordial” requirement to maintain order in society. In their absence, the court said, the right to personal liberty would lose all its meaning. And the need for such laws, the judgment added, is so intensely felt that the political executive ought to enjoy complete immunity in deciding when to invoke these powers. “The Court cannot substitute its own satisfaction for that of the authority concerned and decide whether its satisfaction was reasonable or proper,” wrote Justice Rabstan, “or whether in the circumstances of the matter, the person concerned should have been detained or not.” All that judges could do, he said, was to see whether the stated grounds — regardless of whether they are, in fact, credible or not — bear some nexus with the objective of the law.

Guarantees reduced to a trifle

Effectively, therefore, the judgment places liberty at the pleasure of government. It reduces the Constitution’s core guarantees to a trifle. Yet, extraordinary as the verdict appears, a study of the history of the law of preventive detention in India, especially as applied in the State of J&K, would show us that we ought to have little to be surprised about. The ruling, in recognising boundless executive pre-eminence, only gives effect to a long-standing jurisprudence.

In the litany of precedents that the judgment has cited, pride of place is occupied by India’s first big constitutional case, A.K. Gopalan v. State of Madras . There, the Supreme Court of India found that Article 21, which guarantees a right to life and personal liberty, does not require the state to follow due process. It was therefore, in the court’s belief, that Article 22 had been incorporated, stipulating a set of procedural parameters for preventive detention laws. And such laws, according to the court, were immunised from the limitations placed on the legislature by other fundamental rights.

The verdict in Gopalan has since been overruled. Not only has the Supreme Court held that the fundamental rights chapter comprises a network of mutually dependant promises but it has also ruled that Article 21 implicitly includes within it a guarantee of substantive due process. In other words, the clause demands that any action or law that limits liberty ought to fair, just, and reasonable, untouched by the caprices of the state.

Executive knows best

In overruling Gopalan , the court’s rationale was simple: the absence of a substantive promise of due process would mean that the political executive is free to use the most whimsical of motives to restrict freedom. Under such a notion, something as arbitrary as a coin toss can act as a substitute for a trial. But yet the apparent burying of the verdict in Gopalan has had little practical consequence. The PSA, which was introduced by the former Jammu and Kashmir (J&K) Chief Minister Sheikh Abdullah’s government to purportedly keep timber smugglers “out of circulation” allows for detention of up to two years without trial, with extensions made available for the asking.

As Haley Duschinski and Shrimoyee Nandini Ghosh have noted, in permitting detentions based on postulations that are protected from review by courts, the law “establishes a broad jurisdiction of suspicion”. Even the Supreme Court, in Jaya Mala v. Home Secretary, Government of J&K (1982) described the legislation as a “lawless law” and warned of a looming danger in which normal criminal trials would be replaced by regimes of detention. But ever since its enactment, the PSA has served precisely this purpose. It has been used by successive governments to quell even the slightest hint of dissent. And when review of the orders is sought, courts have invariably followed the model that has now been adopted in Mr. Qayoom’s case: an assumption that the executive knows best and that any decision made by it is beyond the scope of judicial enquiry.

The only thing transcendental about this approach is the omnipotent supremacy of the executive. In reducing judicial review to an irrelevance, the judgment, therefore, stands as an antithesis of the Constitution’s basic function. To understand the dangers inherent in vesting unbridled power of this kind, we do not need to see J&K as exemplifying a state of exception. Nor do we need to apprehend that the model employed will likely be adopted in other States. For, as Gopalan’s lawyer, M.K. Nambyar, told the Supreme Court all those years ago: no amount of fine phrasing can disguise the fact that detention without trial is repugnant to the “universal conscience of civilized mankind”.

Suhrith Parthasarathy is an advocate practising at the Madras High Court