it was the case of bonded labour.

Another interesting thing which came out from the conversation was the landlords' feeling that every activity of a harijan which was likely to question landlord supremacy was seen as being the result of 'inspiration' by the 'radicals'. Also the welfare prgrammes of the RES were dubbed as 'radical activities'. But the harijans showed a g r i m determination to face the socio-economic boycott with united action. Talking with them revealed the precarious nature of their existence. On the day of the attack most of them had gone without food for the whole day. On February 20 when the committee met some of them, hunger was w r i t large on their faces. Also there was no sign of any relief to these families from the government. The Moogavada episode exposes the chasm between the precept and practice of the government w i t h regard to the weaker sections. Increasingly the sources of livelihood of the weaker sections is a much professed objective of the government, in the state as well as at the Centre. One of the measures accepted as a means to achieve the objective is the distribution of surplus land, public lands or income-yielding assets to weaker sections. But the Moogavada incident shows that appropriate machinery for impelmenting the measures has not been evolved. The revenue administration is grossly i n adequate for h a n d l i n g the welfare schemes. Sometimes it may even be an obstacle. The government has failed to distribute even public assets like tamarind trees, let alone carry out other welfare measures. Secondly, protection of weaker sections from exploitation and atrocities continues to be confined to the level of rhetoric The very fact that the landlords could take the law into their hands shows who actually rules the countryside. Once an asset is passed on to a beneficiary it is the obligation of the government to see that the beneficiary enjoys its fruits. Equality before law, without the w i l l to enforce i t , is a myth. Thirdly, the absence of adequate information about public lands and trees like tamarind on public lands shows the gross neglect of public property management. Proper accounting of these resources and access to the public to such accounts have great potential for improving the condition of living of the people. Finally, there appears to be an increasing tendency towards blaming everything on the so-called 'radicals'. When a government gives 'patta' to a weaker section household it is done w i t h lot of fan-fare and publicity and everyone in the government claims credit for i t . But no one in the government takes responsibility to see that the 'pattas' are in the 786

actual possession of the allottees. PostScript: Despite the fact that the Tahsildar swore that he would get the harvest done in favour of the beneficiaries by February 21, no action was taken. I n stead advocate Chari and two officebearers of the RES were arrested on false charges and remanded to judicial custody f r o m where they were released on February 23 on condition that they would

not leave Madanapalle town. On the 22nd, a week after the incident, the Director of Scheduled Castes and Scheduled Tribes, Southern Region, visited the village After that the Tahsildar proceeded to the village w i t h a police party to help the pattadars. But because of the terror created by the landlords and the inaction of the authorities, only 36 families took courage to harvest the produce on roughly 36 trees. The rest of the harijans had given up.

PREVENTIVE DETENTION

Erosion of Constitutional Safeguards

K G Kannabiran
BY the N a t i o n a l Security (Second Amendment) Act, 1984, the grounds of detention were made severable and each ground was made an order of detention by a legal fiction. M o v i n g this A m e n d ment B i l l to the National Security Act, Narasimha Rao stated that the aim of the amendment was only to resolve the conflict between the multiplicity of judgments on the Act w i t h some holding that invalidation of one ground was sufficient to make the detention order itself invalid and the other holding a contrary view. He also relied on a judgment of the Supreme Court delivered in 1983 wherein it was held that the invalidation of one out of several grounds need not make the detention order invalid. When the opposition made references to the use of M I S A during the Emergency, Narasimha Rao said, "we are now talking of a different situation and a different concept and let us not go into the past". He even asserted that the Preventive Detention Law he was defending was not draconian and that it did not add one iota of power. Every one of these assertions is a lie. Narasimha Rao could confidently assert his party's right to introduce the amendment because he had behind him the solid support of yes-men who are there not to deliberate but to support every governmental measure. The opposition in Parliament is too' weak to even formulate a strategy to focus the attention of the p u b l i c . o n t h e real issues involved and expose the democratic swindle. Organised and intelligent protest outside Parliament is practically non-existent. The result was that Indira Uanani's government was able to brazenly bring in a series of repressive laws which can be effectively used against political dissent without the necessity of invoking the provisions relating to the declaration of Emergency. By the first amendment the maximum period of detention was extended to two years. By the second amendment the government saw to it that none of the persons arrested are released by courts. The scope for judicial review which is already m i n i m a l has been reduced to nothing. The latest proposal of the Punjab government to do away with the advisory board procedure is the logical culmination of the previous amendments. Article 22 of the Constitution is in two parts. Clauses 1 and 2 of the Article deal w i t h arrests and production before the Magistrate w i t h i n 24 hours. The arrested persons should be informed of the grounds for their arrest and they have also, while in custody, the right to consult the lawyer of their choice. The first two clauses are systematically violated by the law enforcing agency all over the country. Protest, if any, proceeds invariably from civil liberties organisations. We are at present not concerned with these clauses. These two clauses are not applicable to any person who has been detained under any preventive detention law. Sub-clauses 4 to 7 deal w i t h preventive detention laws. Recognising that preventive detention is a complete negation of all freedoms, more particularly freedom of movement and personal liberty, these clauses as they stand now impose on Parliament certain limitations in the matter of legislation on preventive detention. No law can provide for preventive detention for a period of more than two months without the intervention of the Advisory Board. The A d visory Board is to be constituted in accordance w i t h the recommendations of the Chief Justice of the H i g h Court. This is to ensure that the case of the detenu should be considered by an independent body. By clause 7, Parliament alone is given the power to prescribe the maximum period of detention. By the first amendment, taking advantage of the Punjab situation, the maximum period has been extended from one year to two years.

ECONOMIC A N D P O L I T I C A L WEEKLY
GROUNDS OF DETENTION ATTEMPTS TO PREVENT SCRUTINY

May 4, 1985 dered may give relief to him. We are of the opinion that this constitutional requirement must be satisfied with respect -to each of the grounds communicated to the persons detained subject of course to a claim of privilege under clause (6) of Article 22. After this decision the court has not resiled from this position.
N E W STRATEGY

Apart from these, the safeguards provided by clause 5 are very important, for this clause gives the person detained a right to approach the court and contest that his detention is invalid. As preventive detention is a pre-emptive step to forestall a particular type of activity defined in the Act, the decision-making process will have to be a subjective assessment of the detaining authority. This subjective exercise of power is by its very nature arbitrary. The safeguards provided are to reduce the arbitrariness. The power to act and its subsequent validity are dependent on scrupulous compliance w i t h the safeguards provided. The detaining authority should serve the grounds of detention on the person detained. These grounds do not mean mere factual inferences. They mean and include factual material which lead to the factual inferences. They must be self-sufficient and self-explanatory. If any documents and other material are referred to in the grounds, copies of such documents and -material should be supplied to the detenu along w i t h the grounds. The grounds and the material relied on in the grounds should be made available in the language known to the detenu. As the power to detain is entrusted to the subjective satisfaction of the detaining authority the obligation implied is that he should while considering the material for arrest take into account the pertinent and the proximate eschewing the irrelevant and the remote with reference to every one of the grounds. The grounds should not be vague. These safeguards are not provided in the Act. They are read into and are part of clause 5 of Article 22. These flow out of the right of the detenu to obtain informat i o n regarding the grounds of his arrrest and the consequential right to make a representation questioning his detention. This right is independent of the duration of the period of detention and the provisions regarding the Advisory Board. I n fraction of the safeguards read into A r t i cle 22(5) w i l l make the detention invalid and the detenu has the right to approach the court demanding his release forthwith. The Supreme Court always regarded preventive detention as a serious invasion of personal liberty, and violation of the meagre safeguards provided by the Constitution against improper exercise of power was annulled without any hesitation. The principle evolved was nothing new and it was part of Anglo-Saxon jurisprudence. The innovation was to read them into Article 22(5) with a view to preventing the State from bringing forth legislation which may shut out the courts from reviewing orders of detention.

The Indian state has been making attempts to prevent scrutiny of detention orders by courts from the very inception. The Preventive Detention Act 1950 contained provisions w h i c h p r o h i b i t e d disclosure of the grounds of detention or any representation made against such detention before any court. The injunction was directed against the court from receiving such information from the detenu. Nor can it call for the production of records containing such information from any public officer, including the proceedings of the Advisory Board. A n y such disclosure was made a punishable offence. This provision was struck down by the Supreme Court unanimously in A K Gopalan's case. Atmaram Shridhar Vaidya, an active trade unionist of A I T U C was arrested on A p r i l 21, 1950. On A p r i l 29, 1950 he was served w i t h a detention order. Four months after his detention order and one month after he moved the court for h i . release, the government served on h i m supplemental grounds. In this case, the Supreme Court held by a majority that the person detained is entitled, in addition to having the detention order communicated to him, to a further right to have particulars (as full and adequate as the circumstances permit' furnished to him so as to enable h i m to effectively make a representation against the order of detention. It was also held that the second communication, if there be any, after the i n itial order of detention and service of grounds is also justiciable. These rights were declared to be part of Article 22(5).

The government evolved a new strategy, ft realised that a single Preventive Detention A t t for all classes and categories of people was the mistake Nehru had committed. Why should one Jump communists, socialists, members of communal organisations, lumpens, black-marketeers, smugglers, etc, together? Separate laws for each category or class would divide the protest and that way there would be less scope for challenge in courts. A draconian piece of legislation against lumpen elements or a smuggler is not likely to evoke protest. We may not even challenge such a measure because we tend to take a moralistic stand and justify the draconian measure. Courts may also take a m o r a l i s t i c view a n d u p h o l d such measures. If it stands the test of public opinion, and if courts uphold such a measure a principle is laid down. It is then time to extend the principle to other sensitive spheres of activity which need to be suppressed, The arbitrary provision gets legitimised and dons the mantle of legality and survives from then on as an abstract juristic principle. The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act was passed in 1974. Immediately after Emergency was proclaimed Section 5-A Ramkishan Bharadhwaj of the H i n d u was introduced. The provision in terms Mahasabha questioned his detention seeks to nullify the safeguards contained order in 1953. One of the grounds was in Article 22(5) as laid down by the vague and it was contended that even if Supreme Court. If a person has been deone ground was vague it would infringe tained in pursuance to an order of detenthe safeguards guaranteed by Article 22(5). tion on two or more grounds such order The argument of the State was that if a shall be deemed to have been made on ground is vague it was always open to the each of such grounds and hence such person detained to ask for particulars detention shall not be invalid merely before making his representation. because one or some grounds is or axe The question however is not whether the vague, irrelevant, remote or non-existent. petitioner will in, fact be prejudicially afThe validity of this provision has never fected in the matter of securing his release been challenged. The provision seeks to by his representation, but whether his con- sustain the validity of the detention order stitutional safeguard has been infringed. on a legislative fiction. H o w can a fiction Preventive detention is a serious invasion of take the place of 'satisfaction' of the depersonal liberty and such meagre safeguards taining authority at the time of passing as the Constitution has provided against the an order of detention? The provision improper exercise of the power must be dispenses with the necessity of application jealously watched and enforced by the court. of m i n d by the detaining authority as also In this case the petitioner has the right under bis satisfaction that the material placed Art 22(5) as interpreted by this court by a before h i m relates to the classes and majority to be furnished with particulars of categories of activities which are sought his detention sufficient to enable him to to be prevented by the arrest. How can the make representation which on being consi- detaining authority be presumed to pass 787

May 4, 1985 several orders of detention when in fact he has passed only one? Legal sophistry in and by courts can be totally divorced from reality as was ably demonstrated by the majority in A D M Jabalpur's case. A d d to this the tendency to write dissertations instead of judgments and to make general observations which are not relevant for the decision of the case. Such observations are taken note of by the executive and offered as explanation for introducing unpopular and undemocratic measures, as was done by Narasimha Rao in Parliament. The classic instance is that of Justice Varadarajan delivering judgment for himself and on behalf of Justice Chinnappa Reddy. While quashing the order of detention under the National Security Act, in a case coming from Madhya Pradesh it was observed: Now there is no provision in the National Security Act 1980 similar to Sec 5-A of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, which says that where a person has been detained in pursuance of an order of detention under sub-section(l) of Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly, (a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague, nonexistent, non-relevant, not connected or not proximately conneeted with such persons or invalid for any other reason and it is not therefore possible to hold that the government or officer making such order would have been satisfied as provided in sub-section(l) of Section 3 with reference to the remaining ground or grounds and made the order of detention; and (b) the government or officer making the order of detention shall be deemed to have made the order of detention under the said sub-section(l) are being satisfied as provided in that sub-section with reference to the remaining ground or grounds (AIR 1984 SC 211). In short the learned judge said in so many words that had there been a similar provision in the National Security Act, 1980, we would have upheld the detention order. A piece of gratuitous advice. The learned judge when he made this statement did not verify the long catena of cases wherein the Supreme Court has read into Article 22(5) safeguards which cannot be defeated by such legislative devices as are contained in COFEPOSA or the Second Amendment to the NSA. Way back in 1970 to put down the Naxalite movement, the Andhra Pradesh legislature passed the AP Preventive Detention Act. It contained a provision 788

ECONOMIC A N D POLITICAL WEEKLY s i m i l a r to the one f o u n d in the COFEPOSA and the Second Amendment to the National Security Act. It read as follows: See 6(a): No detention order shall be invalid or inoperative merely by reason that one or more of the grounds on which the order is made, is or are vague, or irrelevant, when the other ground or grounds does not or do not suffer from any such infirmity. Revolutionary writers Charabanda Raju, Nikhileswar and Jwalamukhi were arrested under this Act for their writings and speeches. The validity of this provision was challenged in the High Court. Justice Chinnappa Reddy and Justice A D V Reddy struck down the provision as violative of. Article 22(5) wnerein they traced the entire history of the safeguards read into Article 22(5) ( I L R 1972 AP 1025). This was the first of the series of the measures introduced by Indira Gandhi's government taking advantage of the Punjab situation.
TELUGU DESAM FOLLOWS SUIT

The Telugu Desam government, not to be left behind, has passed a Preventive Detention Act covering communal offenders. 'Communal offenders' is defined by reference to the relevant provisions of the Indian Penal Code. Indictable offences have been made the basis of preventive detention orders and courts have been examining them in the context of public order. Classification of offences and offenders in a penal code is perhaps the accepted method of management of crimes by the state. But classification of suspects for purposes of preventive detention and passing of different sets of laws covering various categories of suspects is to replace a just procedure by a wholly arbitrary oneto give up indictment followed by trial and to introduce subjective satisfaction as a measure to punish pre-emptively suspects without proof and with flimsy procedural safeguards. The process of classification of suspects may not stop here. Already there are four enactments covering the entire spectrum of political dissidents and economic offenders. Telugu Desam has introduced a fresh B i l l to check bootlegging, landgrabbing, etc The pattern of legislation and the fate of accusatory procedure arc visible for anyone to see. W i t h the Punjab issue converted into a question of the integrity of the nation, we are trapped in the threat-to-national-security syndrome. Security, as the good of the nation, is incompatible w i t h the permanent insecurity of the people. The very idea of a threat to security invites repressive measures and w i t h these follow arbitrary arrests, illegal confinements and custodial

violence. State does not any longer represent the value system it is intended to promote and sustain, but works towards the sytematic destruction of the value system for which so many people laid down their lives. Sometimes it becomes necessary to dig into the past to understand the extent of distortions that have been introduced into the legal system almost imperceptibly and always in times of crisis. Many members of the Constituent Assembly felt that Article 21 as it was approved "gave to Parliament a carte blanche to provide for the arrest of any person under any circumstances it deemed fit". Therefore the present Article 22 was introduced to curtail the power of the executive to make arrests. When this Article was being debated, Mahavir Tyagi alone was able to foresee the distortion that in fact has taken place when he said that "the adoption of A r t i cle 15-A [present 22] would change the character of fundamental rights into a penal code worse than the Defence of India Rules of the old government. The business of the Constitution makers was to guarantee the rights of people and not to make laws to deprive them of their rights."

Polar Industries
P O L A R I N D U S T R I E S , a dividend paying company engaged in the manufacture of electric fans, is coming to the market with a public issue of 8.10 lakh equity shares of Rs 10 each to raise a part of the finance required for expansion of installed capacity from 1.50 lakh fans to 3,60 lakh fans per annum. The issue will open on May 7. The project is expected to be commissioned by August next. The company's factory is situated at New Okhla I n dustrial Development Area ( N O I D A ) in Ghaziabad district of UP. The state government has granted the company exemption from sales tax for six years, which is of great advantage to the company. It is promoted by Sajjan Kumar Aggarwal who has been associated w i t h the electric fan industry for the last 20 years. W i t h a well-established product brand name in the market, the company envisages no difficulty in marketing its expanded production. The demand for electric fan is expected to rise steadily. The company started manufacturing activities in December 1982 and turned out good working results from the very first year of operation. Sales turnover increased from Rs 104 lakh in 1982-83 to Rs 210 lakh in 1983-84 and profit before tax doubled over the same period. The company declared a maiden dividend of 12 per cent for t h e year ended September 30,1984, the first full year of operations.