12th February – Liberty at the government’s whim

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.

In this respect, it is important to discuss a recent judgment of the Jammu and Kashmir High Court in Mian Abdul Qayoom v. State of J&K concerns with preventive detention —or in this case, the Jammu and Kashmir Public Safety Act of 1978 [PSA].

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.
  • The Jammu and Kashmir High Court held that the right to personal liberty is “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”.

Interpreting the judgement –

The court has essentially 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. Effectively, the judgment places liberty at the pleasure of government.

Past precedents –

  • In A.K. Gopalan v. State of Madras, 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.
  • Later, 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.

The draconian Public Safety Act –

  • The PSA 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.
  • 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. It has been used by successive governments to quell even the slightest hint of dissent.
  • The Qayoom judgement has once again proved 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.

Conclusion –

It is important to note that no amount of fine phrasing can disguise the fact that detention without trial is repugnant to the “universal conscience of civilised mankind”.

SourceThe Hindu

QUESTIONDetention without trial is repugnant to the ‘universal conscience of civilised mankind’. Comment.

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