Preventive detention: Ex-bureaucrats flag amendment that has not been notified for 43 years

Preventive detention: Ex-bureaucrats flag amendment that has not been notified for 43 years

A group of 100 former civil servants on Saturday wrote to Union Law Minister Kiren Rijiju, highlighting that the Centre has not yet issued a notification to enforce the amendment to Article 22(4) of the Constitution of India, which deals with protection against detentions.

The Parliament had passed the amendment in 1978.

Before the amendment to the Article, the authorities were allowed to detain a person for a maximum of three months, unless an advisory board, before the expiration of the detention period, felt that there was “sufficient cause” for detention.

The advisory board consisted of “persons who are, or have been, or are qualified to be appointed as, judges of a High Court”.

Section 3 of the Constitution (44th Amendment) Act, 1978, restricted the time period of preventive detention to two months. It also said that the Advisory Board is to be led by a sitting High Court judge, with at least two serving or former judges of any High Court as members.

In their letter, the former bureaucrats said that “unconscionable delay of 43 years” to notify the amendment has led to “a brazen abuse of preventive detention laws in gross violation of human rights”.

They pointed out that at present, any advocate who has been practicing for 10 or more years could be a part of the 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,” the former bureaucrats said.

The signatories of the letter said that after the Emergency from 1975 to 1977, during which former Prime Minister Indira Gandhi’s government arbitrarily detained its opponents, the Parliament considered it necessary introduce checks.

“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,” the bureaucrats said. “It is not open to the Government of India to sit in judgment over the wisdom of Parliament.”

The signatories urged the Centre to notify the date on which the amendment would come into effect.


Also read: Why a lawyer in Kashmir is asking for a constitutional amendment from 1979 to be enforced

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