OPEN LETTER TO THE MINISTER OF LAW AND JUSTICE, GOVERNMENT OF INDIA NOTIFICATION OF S. 3 OF THE CONSTITUTION (FORTY FOURTH AMENDMENT) ACT, 1978 TO PROVIDE FOR IMPARTIAL AND INDEPENDENT ADVISORY BOARD TO EXAMINE THE JUSTIFICATION FOR PREVENTIVE DETENTION

16 October 2021

To

Shri Kiren Rijiju,

Hon. Minister of Law and Justice,

Government of India

Dear Shri Rijiju,

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.

SATYAMEVA JAYATE

Yours sincerely,

Constitutional Conduct Group

(100 signatories, as below)

 Salahuddin AhmadIAS (Retd.)Former Chief Secretary, Govt. of Rajasthan
 S.P. AmbroseIAS (Retd.)Former Additional Secretary, Ministry of Shipping & Transport, GoI
 Anand ArniRAS (Retd.)Former Special Secretary, Cabinet Secretariat, GoI
 M.D. AsthanaIAS (Retd.)Former Principal Adviser, Planning Commission, GoI
 G. BalachandhranIAS (Retd.)Former Additional Chief Secretary, Govt. of West Bengal
 Vappala BalachandranIPS (Retd.)Former Special Secretary, Cabinet Secretariat, GoI
 Gopalan BalagopalIAS (Retd.)Former Special Secretary, Govt. of West Bengal
 Chandrashekhar BalakrishnanIAS (Retd.)Former Secretary, Coal, GoI
 Rana BanerjiRAS (Retd.)Former Special Secretary, Cabinet Secretariat, GoI
 T.K. BanerjiIAS (Retd.)Former Member, Union Public Service Commission
 Sharad BeharIAS (Retd.)Former Chief Secretary, Govt. of Madhya Pradesh
 Aurobindo BeheraIAS (Retd.)Former Member, Board of Revenue, Govt. of Odisha
 Madhu BhaduriIFS (Retd.)Former Ambassador to Portugal
 Pradip BhattacharyaIAS (Retd.)Former Additional Chief Secretary, Development & Planning and Administrative Training Institute, Govt. of West Bengal
 Meeran C BorwankarIPS (Retd.)Former DGP, Bureau of Police Research and Development, GoI
 Ravi BudhirajaIAS (Retd.)Former Chairman, Jawaharlal Nehru Port Trust, GoI
 Sundar BurraIAS (Retd.)Former Secretary, Govt. of Maharashtra
 R. ChandramohanIAS (Retd.)Former Principal Secretary, Transport and Urban Development, Govt. of NCT of Delhi
 Rachel ChatterjeeIAS (Retd.)Former Special Chief Secretary, Agriculture, Govt. of Andhra Pradesh
 Kalyani ChaudhuriIAS (Retd.)Former Additional Chief Secretary, Govt. of West Bengal
 Gurjit Singh CheemaIAS (Retd.)Former Financial Commissioner (Revenue), Govt. of Punjab
 F.T.R. ColasoIPS (Retd.)Former Director General of Police, Govt. of Karnataka & former Director General of Police, Govt. of Jammu & Kashmir
 Anna DaniIAS (Retd.)Former Additional Chief Secretary, Govt. of Maharashtra
 Vibha Puri DasIAS (Retd.)Former Secretary, Ministry of Tribal Affairs, GoI
 P.R. DasguptaIAS (Retd.)Former Chairman, Food Corporation of India, GoI
 Pradeep K. DebIAS (Retd.)Former Secretary, Deptt. Of Sports, GoI
 Nitin Desai Former Chief Economic Adviser, Ministry of Finance, GoI  
 M.G. DevasahayamIAS (Retd.)Former Secretary, Govt. of Haryana
 Sushil DubeyIFS (Retd.)Former Ambassador to Sweden
 A.S. DulatIPS (Retd.)Former OSD on Kashmir, Prime Minister’s Office, GoI
 K.P. FabianIFS (Retd.)Former Ambassador to Italy
 Prabhu GhateIAS (Retd.)Former Addl. Director General, Department of Tourism, GoI
 Gourisankar GhoshIAS (Retd.)Former Mission Director, National Drinking Water Mission, GoI
 Suresh K. GoelIFS (Retd.)Former Director General, Indian Council of Cultural Relations, GoI
 S.K. GuhaIAS (Retd.)Former Joint Secretary, Department of Women & Child Development, GoI
 Meena GuptaIAS (Retd.)Former Secretary, Ministry of Environment & Forests, GoI
 Ravi Vira GuptaIAS (Retd.)Former Deputy Governor, Reserve Bank of India
 Wajahat HabibullahIAS (Retd.)Former Secretary, GoI and former Chief Information Commissioner
 Sajjad HassanIAS (Retd.)Former Commissioner (Planning), Govt. of Manipur
 Siraj HussainIAS (Retd.)Former Secretary, Department of Agriculture, GoI
 Kamal JaswalIAS (Retd.)Former Secretary, Department of Information Technology, GoI
 Vinod C. KhannaIFS (Retd.)Former Additional Secretary, MEA, GoI
 Dhirendra KrishnaIA&AS (Retd.)Former Financial Controller, Irrigation Department, Govt. of Uttar Pradesh
 Brijesh KumarIAS (Retd.)Former Secretary, Department of Information Technology, GoI
 Ish KumarIPS (Retd.)Former DGP (Vigilance & Enforcement), Govt. of Telangana and former Special Rapporteur, National Human Rights Commission
 Sudhir KumarIAS (Retd.)Former Member, Central Administrative Tribunal
 Subodh LalIPoS (Resigned)Former Deputy Director General, Ministry of Communications, GoI
 B.B. MahajanIAS (Retd.)Former Secretary, Deptt. of Food, GoI
 P.M.S. MalikIFS (Retd.)Former Ambassador to Myanmar & Special Secretary, MEA, GoI
 Harsh ManderIAS (Retd.)Govt. of Madhya Pradesh
 Aditi MehtaIAS (Retd.)Former Additional Chief Secretary, Govt. of Rajasthan
 Sonalini MirchandaniIFS (Resigned)GoI
 Sunil MitraIAS (Retd.)Former Secretary, Ministry of Finance, GoI
 Avinash MohananeyIPS (Retd.)Former Director General of Police, Govt. of Sikkim
 Satya Narayan MohantyIAS (Retd.)Former Secretary General, National Human Rights Commission
 Jugal MohapatraIAS (Retd.)Former Secretary, Department of Rural Development, GoI
 Deb MukharjiIFS (Retd.)Former High Commissioner to Bangladesh and former Ambassador to Nepal
 Gautam MukhopadhayaIFS (Retd.)Former Ambassador to Myanmar
 T.K.A. NairIAS (Retd.)Former Adviser to Prime Minister of India
 Surendra NathIAS (Retd.)Former Member, Finance Commission, Govt. of Madhya Pradesh
 P. Joy OommenIAS (Retd.)Former Chief Secretary, Govt. of Chhattisgarh
 Amitabha PandeIAS (Retd.)Former Secretary, Inter-State Council, GoI
 P. R. ParthasarathyIPS (Retd.)Former Director, Anti-Corruption Bureau, Govt. of Maharashtra
 Maxwell PereiraIPS (Retd.)Former Joint Commissioner of Police, Delhi
 Alok PertiIAS (Retd.)Former Secretary, Ministry of Coal, GoI
 G.K. PillaiIAS (Retd.)Former Home Secretary, GoI
 Rajesh PrasadIFS (Retd.)Former Ambassador to the Netherlands
 Sharda PrasadIAS (Retd.)Former Director General (Employment and Training), Ministry of Labour and Employment, GoI
 Rajdeep PuriIRS (Resigned)Former Joint Commissioner of Income Tax, GoI
 N.K. RaghupathyIAS (Retd.)Former Chairman, Staff Selection Commission, GoI
 V.P. RajaIAS (Retd.)Former Chairman, Maharashtra Electricity Regulatory Commission
 C. Babu RajeevIAS (Retd.)Former Secretary, GoI
 K. Sujatha RaoIAS (Retd.)Former Health Secretary, GoI
 Vijaya Latha ReddyIFS (Retd.)Former Deputy National Security Adviser, GoI
 Julio RibeiroIPS (Retd.)Former Adviser to Governor of Punjab & former Ambassador to Romania
 Aruna RoyIAS (Resigned) 
 Manabendra N. RoyIAS (Retd.)Former Additional Chief Secretary, Govt. of West Bengal
 A.K. SamantaIPS (Retd.)Former Director General of Police (Intelligence), Govt. of West Bengal
 Deepak SananIAS (Retd.)Former Principal Adviser (AR) to Chief Minister, Govt. of Himachal Pradesh
 G. SankaranIC&CES (Retd.)Former President, Customs, Excise and Gold (Control) Appellate Tribunal 
 Shyam SaranIFS (Retd.)Former Foreign Secretary and Former Chairman, National Security Advisory Board
 S. SatyabhamaIAS (Retd.)Former Chairperson, National Seeds Corporation, GoI
 N.C. SaxenaIAS (Retd.)Former Secretary, Planning Commission, GoI
 Ardhendu SenIAS (Retd.)Former Chief Secretary, Govt. of West Bengal
 Abhijit SenguptaIAS (Retd.)Former Secretary, Ministry of Culture, GoI
 Aftab SethIFS (Retd.)Former Ambassador to Japan
 Ashok Kumar SharmaIFoS (Retd.)Former MD, State Forest Development Corporation, Govt. of Gujarat
 Ashok Kumar SharmaIFS (Retd.)Former Ambassador to Finland and Estonia
 Navrekha SharmaIFS (Retd.)Former Ambassador to Indonesia
 Pravesh SharmaIAS (Retd.)Former Additional Chief Secretary, Govt. of Madhya Pradesh
 Raju SharmaIAS (Retd.)Former Member, Board of Revenue, Govt. of Uttar Pradesh
 Rashmi Shukla SharmaIAS (Retd.)Former Additional Chief Secretary, Govt. of Madhya Pradesh
 Sujatha SinghIFS (Retd.)Former Foreign Secretary, GoI
 Tara Ajai SinghIAS (Retd.)Former Additional Chief Secretary, Govt. of Karnataka
 Tirlochan SinghIAS (Retd.)Former Secretary, National Commission for Minorities, GoI
 Narendra SisodiaIAS (Retd.)Former Secretary, Ministry of Finance, GoI
 Anup ThakurIAS (Retd.)Former Member, National Consumer Disputes Redressal Commission
 Hindal TyabjiIAS (Retd.)Former Chief Secretary rank, Govt. of Jammu & Kashmir
 Ramani VenkatesanIAS (Retd.)Former Director General, YASHADA, Govt. of Maharashtra
 Rudi WarjriIFS (Retd.)Former Ambassador to Colombia, Ecuador and Costa Rica

12 thoughts on “OPEN LETTER TO THE MINISTER OF LAW AND JUSTICE, GOVERNMENT OF INDIA NOTIFICATION OF S. 3 OF THE CONSTITUTION (FORTY FOURTH AMENDMENT) ACT, 1978 TO PROVIDE FOR IMPARTIAL AND INDEPENDENT ADVISORY BOARD TO EXAMINE THE JUSTIFICATION FOR PREVENTIVE DETENTION

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