Skip to main content

Notify law to monitor 'brazen abuse' of preventive detentions, demand ex-babus

Counterview Desk 

The Constitutional Conduct Group (CCG), made up of India's former civil servants*, has asked Union Minister of Law and Justice Kiren Rijiju to notify Section 3 of the Constitution (44th Amendment) Act, passed way back in 1978 "to provide for impartial and independent advisory board to examine the justification for preventive detention."
Regretting that the amendment has not been effected even 43 years after it was passed Paliament, CCG's open letter to the minister said, such an advisory board requires to be appointed in accordance with the recommendation of the Chief Justice of the High Court, is to be headed by a sitting judge of that High Court, with at least two serving/former judges of any High Court as members of the Board.
"The unconscionable delay of 43 years in the issue of this notification has resulted in a brazen abuse of preventive detention laws in gross violation of human rights and a progressive erosion of our cherished democratic values", the letter states.

Text:

We are a group of former civil servants of the All India and Central Services who have worked with the Central and State Governments in the course of 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 be aware that Art. 22(4) of the Constitution of India was amended by the Constitution (Forty Fourth Amendment) Act, 1978. S. 3 of this amendment Act provides that the Advisory Board, to be constituted for examining the justification for preventive detention under this Article, is to be appointed in accordance with the recommendation of the Chief Justice of the High Court; it is to be headed by a sitting judge of that High Court and have at least two serving/former judges of any High Court as members of the Board.
The said S. 3 also deleted Art 22(7)(a) of the Constitution, thereby deleting the provision authorizing preventive detention without obtaining the opinion of an Advisory Board.
These amendments were meant to curtail the arbitrary power of governments to appoint on the Advisory Board any person qualified to be a judge of a High Court, and to ensure that no preventive detentions could be made, or continued, without obtaining the opinion of the Advisory Board within 2 months of the detention. These provisions have yet to come into force since a notification to give effect to S. 3 of the 44th Constitutional Amendment has not been issued.
At present, any advocate who is qualified to be a judge of a High Court, can be appointed to the Advisory Board. In effect, any advocate with ten years or more of practice can sit on an Advisory Board. This provision is, thus, vulnerable to abuse by governments which, instead of appointing neutral, independent members to the Board, may appoint persons of their choice, including those owing allegiance to the political party in power.
A look at the Objects and Reasons of the Constitution (Forty Fourth Amendment) Act, 1978 explains why Parliament, soon after the experience of the Emergency of 1975-77, considered it necessary to check arbitrary preventive detentions. Para 1 of the Objects and Reasons is cited below:
“Recent experience has shown that the fundamental rights, including those of life and liberty, granted to citizens by the Constitution are capable of being taken away by a transient majority. It is, therefore, necessary to provide adequate safeguards against the recurrence of such a contingency in the future and to ensure to the people themselves an effective voice in determining the form of government under which they are to live. This is one of the primary objects of this Bill.”
Successive Union Governments have, however, failed to notify any date for the coming into force of this Constitutional Amendment that was passed by Parliament as far back as 1978. It is not open to the Government of India to sit in judgment over the wisdom of Parliament, which was convinced of the necessity of amending Clause (4)(a) and deleting Clause (7)(a) of Article 22 through the Constitution (Forty Fourth Amendment) Act, 1978.
The provision empowering the Government of India to notify the dates for the coming into force of different provisions of the Constitution (Forty Fourth Amendment) Act was intended to give the government some flexibility in this regard. It will be a travesty if this provision is conveniently used by the government to negate the legislative intent by refusing to notify the date of coming into effect of the Constitution (Forty Fourth Amendment) Act. The unconscionable delay of 43 years in the issue of this notification has resulted in a brazen abuse of preventive detention laws in gross violation of human rights and a progressive erosion of our cherished democratic values.
We, therefore, urge the Government of India to forthwith notify a date for the coming into force of S. 3 of the Constitution (Forty Fourth Amendment) Act, 1978.
Satyamev Jayate
---
Click here for signatories

Comments

TRENDING

Swami Vivekananda's views on caste and sexuality were 'painfully' regressive

By Bhaskar Sur* Swami Vivekananda now belongs more to the modern Hindu mythology than reality. It makes a daunting job to discover the real human being who knew unemployment, humiliation of losing a teaching job for 'incompetence', longed in vain for the bliss of a happy conjugal life only to suffer the consequent frustration.

Critics of your government should not be in jail: PUCL shoots open letter to Modi

Counterview Desk In an open letter, Ravikiran Jain, national president, and Dr V Suresh, general secretary, People’s Union for Civil Liberties (PUCL) have taken strong exception to Prime Minister Narendra Modi’s view that raising human rights issues can ‘tarnish’ the country’s reputation, stating, those who raise human rights concerns do it “through established United Nations mechanisms such as the UN Human Rights Council, the Office of the UN High Commissioner of Human Rights.”

Buddhist shrines were 'massively destroyed' by Brahmanical rulers: Historian DN Jha

Nalanda mahavihara By Our Representative Prominent historian DN Jha, an expert in India's ancient and medieval past, in his new book , "Against the Grain: Notes on Identity, Intolerance and History", in a sharp critique of "Hindutva ideologues", who look at the ancient period of Indian history as "a golden age marked by social harmony, devoid of any religious violence", has said, "Demolition and desecration of rival religious establishments, and the appropriation of their idols, was not uncommon in India before the advent of Islam".

When judges behave more like priests, delivering sermons from high podium...

By Ajit Singh*  The theory of separation of power found its origins in ancient Greece but with the passage of time it became widespread in other parts of Europe. Early proponent of the theory Greek philosopher Aristotle in “Politics” argued that implementation of constitution in letter and spirit can only be possible if the three elements among whom the power has been distributed are well arranged.

Covid appropriate behaviour? Why masks can't be suitable in hot, humid climate

By Dr Amitav Banerjee* Appearances can be deceptive. So can be Covid Appropriate Behaviour (CAB). An anecdote illustrates this well known cliché. A man who is very particular about hygiene decides to eat out. After a rather long search, he spots a restaurant which has a spotlessly clean exterior and he walks in.

Muck being thrown in Uttarakhand rivers: Villagers face 'existential' crisis

By Vidya Bhushan Rawat*  The Uttarakhand government must act fast to clear the path of Dhauli Ganga river about two kilometres ahead of village Neeti and about one kilometre from Ghamsali village, which is about 90 kilometer from Joshi Math town in district Chamoli. The creation of an artificial lake due to throwing of muck and mud can create a catastrophic situation like what happened on February 7, 2021-- the Rishi Ganga-Dhauli Ganga tragedy at Tapovan and Raini village in which over 200 people lost their life.

How Indore turned into water minus city after authorities 'managed' Water Plus title

Water harvester cleaning up hyacinth from an Indore river By Rahul Banerjee*  Recently, the city of Indore was declared the first Water Plus city in India under the Swachh Sarvekshan programme of the Ministry of Housing and Urban Development for its ostensibly exemplary waste water management. However, the reality is quite different as a detailed study of the prevailing wastewater management situation in the city shows.

UP govt 'ignoring' demand to fill up teachers' posts despite unemployment: Rights groups

Sandeep Pandey with Shikha Pal Counterview Desk  Commenting on the unique protest undertaken by Shikha Pal atop an overhead water tank for nearly four months, the Socialist Party (India), in association with several civil rights group, Yuva Shakti Sangathan, Socialist Yuvjan Sabha and Rihai Manch, have wondered why has the Yogi Adityanath government is so “insensitive” towards her demands and is looking the “other way.”

Restricting use of public places for religious purpose: Will Gehlot govt respect HC order?

By Kavita Srivastava*  The People’s Union for Civil Liberties (PUCL), Rajasthan, has welcomed the judgment of the Rajasthan High Court dismissing the petition by Pooja Gurnani which challenged a circular of the Rajasthan government which restrained the construction of a ‘Pooja Sthal’ in the premises of a police station.

Rehabilitation site 'offered' to 6000 displaced Khori villagers not livable: Team Saathi

By Our Representative  Second round of the Chitthi Andolan (letter movement) of the Khori village residents, whose more than 6,000 houses were demolished as they were allegedly built on forest land, has begun, with hundreds of them telling the authorities of the Municipal Corporation, Faridabad, that no one has received the promised financial assistance of meagre Rs 2,000.