Paragraph: Fundamental rights, we have been repeatedly been told, do not exist in isolation. 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, 1978 (‘PSA’).
The High Court, in its judgment, opened with the now customary panegyric on freedom. The right to personal liberty, wrote Justice TashiRabstan, 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”.
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 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.
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. 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.
Q. Does the author opine that the PSA is an antithesis to the Constitution?