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Preventive Detention under Judicial Scrutiny

Akhil Gogoi v the State of Assam

Akhil Ranjan Dutta (akhilranjangu@gmail.com) teaches at Gauhati University, Guwahati, and is honorary chairperson of the Brahmaputra Institute of Research and Development, Guwahati.

The verdict of the Gauhati High Court in favour of political activist Akhil Gogoi reiterated the need to ascertain the constitutional validity for preventive detention, irrespective of the circumstances and pretexts of the detention. The judgment also called for an inquiry into the serious procedural shortcomings that led to the preventive detention order against Gogoi, as well as the “laxity and casualness” of the state in exercising power under the National Security Act, 1980.

The author acknowledges the assistance received from the University Grants Commission’s Special Assistance Programme, granted to the Department of Political Science, Gauhati University. He also acknowledges the help received from Nilayananda Dutta and Santanu Borthakur, counsel for the petitioner, in developing this article.

 

The Gauhati High Court’s verdict on 21 December 2017 on the writ petition filed by Assamese political activist and farmers’ leader Akhil Gogoi1 has reaffirmed the primacy of the constitutional rights regarding preventive detention as ensured by Article 22(5) of the Constitution of India. The judgment has also exposed the laxity and casualness of the state authorities in exercising power under the National Security Act (NSA), 1980. The 76-page verdict extensively referred to a number of prior significant verdicts, pronounced both by the Supreme Court and the Gauhati High Court, which reiterated the need for constitutional validity in cases of preventive detention, irrespective of the circumstances and pretexts of the detention. The latest verdict ­assumes immense significance due to the fact that the grounds on which Gogoi was detained did not figure in the process of adjudication at all; the procedural lapses in the application of the NSA were enough to quash the detention order. The judgment, apart from disposing of the writ petition, directed the chief secretary of the Government of Assam to enquire and analyse the serious procedural shortcomings that led to the preventive detention order against Gogoi under the NSA, and to ensure that corrective measures are adopted to preclude such lapses and lacunae in future.

A Force of Resistance

Gogoi, who is also the adviser of the Krishak Mukti Sangram Samiti (KMSS), was remanded to custody under Section 3(3) of the NSA, by an order of detention on 24 September 2017, under the pretext that he “has been actively abetting/instigating/provoking/motivating and conspiring to wage war against the state on certain grounds” (Akhil Gogoi v State of Assam: para 2). Gogoi has been a force of resistance in Assam for more than a decade. The Wire (2018) listed him as one of the top 10 voices of defiance against the Bharatiya Janata Party (BJP)-led governments and right-wing forces in the country in 2017. His organisation, the KMSS, which was formed in 2005, has been building resistance against both the central and state governments on a number of issues, including large river dams, land policies, the Citizenship (Amendment) Bill, 2016—to grant citizenship to Hindu Bangladeshis—and the lack of constitutional safeguards for indigenous people in Assam. Gogoi has comprehensively used the Right to Information (RTI) Act, 2005 to unearth corruption in different departments of the state government. Using the Forest Rights Act, 2006, along with his organisation, he has been demanding rights for forest dwellers to settle in reserved forests. For his acts of defiance, he was arrested and detained by the Congress government during 2005–16, and by the BJP-led government after 2016. Several cases have been registered against him;2 therefore, if he does get bail in one case, he may very well be arrested again for another. While Gogoi has been arrested 14 times so far, only in September 2017 was he detained under the NSA.3 He was booked on charges of sedition on 13 September 2017 and was subsequently deta­in­ed under the NSA for statements he allegedly made at a public rally in Moran town, in Dibrugarh district of Assam, on 12 September 2017. The Wire (2017a) reported:

Opposing the Modi government’s decision to grant citizenship to Hindu Bangladeshis residing in the state, non-implementation of the 1985 Assam Accord by the central government and dearth of constitutional safeguards to protect the rights of the indigenous people, Gogoi is reported to have said in the public rally that perhaps the time has come to take up AK 47s against the government instead of the hengdang, a traditional Assamese sword used by the Ahom army for defence.

Gogoi was booked under Sections 124-

A (sedition), 120-B (criminal conspiracy), 121 (waging or attempting to wage war against the Government of India), 109 (abetment of an offence), 153 (causing communal disharmony), and 153-A (hate speech) of the Indian Penal Code (IPC) for making the statement (Wire 2017b). The District Magistrate of Nagaon issued an order of detention on 24 September 2017 against Gogoi under Section 3(3) of the NSA. The Gauhati High Court quashed the preventive detention order in its 21 December 2017 judgment on the writ ­petition filed by Gogoi.

The Verdict

The striking dimension of the judgment is that the Gauhati High Court disposed of the writ petition by exposing the discrepancies in the process of transacting the detention order at different levels. The court did not even have to address the very grounds of detention under the NSA cited by the detaining authorities, that is, the accusation that “the petitioner had been actively abetting/instigating/provoking/motivating and conspiring to wage war against the State” (Akhil Gogoi v State of Assam 2017: para 2).

Reminding the detaining authorities of their responsibilities in handling preventive detentions, the court’s strongly-worded order states:

It is also a matter of concern that the detenues under the preventive detention are required to be released as because the detaining authority while making the order of detention either does not provide all that are required to be provided in a detention order under the law or that in the subsequent follow up procedure of the requirements of law are not being scrupulously followed. The object and reason of the National Security Act is that in a preventive situation of communal disharmony, social tensions, extremist activities, industrial unrest etc., it was considered necessary that the law and order situation in the country be tackled in the most determined and effective way ... Any laxity or casualness on the part of the authorities who are involved in the process of making and sustaining an order of preventive detention, which would result in the release of the detenue, would therefore, have to be termed to be a factor, which contributes to such anti-social and anti-national activity. (Akhil Gogoi v State of Assam 2017: para 81)

The vital issues of contention in the case—wherein the “laxity and casualness” of the detaining authorities were exposed both in the arguments of the counsel for the petitioner and in the analytical and rebuttal part of the judgment—were (i) the petitioner’s right to representation against preventive detention as guaranteed under Article 22(5) of the Constitution; (ii) the unexplained delay in disposing of the representation of the petitioner both by the state and central governments; (iii) the failure to communicate all the grounds of detention to the detenue; and (iv) the serious discrepancies in the process of transacting the detention order. The issue of the right of the detenue to legal assistance has also figured as an important issue of concern in the judgment. The primary reference point of the judgment has been Article 22(5) of the Constitution. The court, with no ambiguity, asserts that “taking a person into custody under the laws of preventive detention would have to be strictly scrutinised within the cornerstone of right to life under Articles 21 and 22(5) of the Constitution” (Akhil Gogoi v State of Assam 2017: para 82).

The following is a brief survey of the issues enumerated in the judgment.

The petitioner’s right to representation against the detention order: In the communication dated 24 September 2017, which contained the grounds of Gogoi’s detention, the petitioner was informed that

[I]f he desires to submit representation against the order of detention, the petitioner may send his representation to the Principal Secretary to Govt of Assam in the Home and Political Department and that he may also make a representation to the Chairperson of the Advisory Board, Assam for the National Security Act. (Akhil Gogoi v State of Assam 2017: para 2)

Accordingly, the petitioner submitted a representation on 27 September 2017 to the aforementioned authorities. A serious lapse in the communication—as has been argued by the counsel for the petitioner and which was endorsed by the judgment—was that the petitioner was not ­informed about his right to make a representation before the detaining authority itself, as well as to the central government. The counsel argued that such a lapse in the detention order was a violation of the rights enshrined in Article 22(5) of the Constitution. Therefore, the order of detention “is liable to be set aside on this ground alone” (Akhil Gogoi v State of ­Assam 2017: para 9). The counsel’s assertion was based on a series of judgments of the Supreme Court as well as the Gauhati High Court, particularly, the decision of the Constitution Bench of the Supreme Court in the Kamleshkumar Ishwardas ­Patel v Union of India (1995) and the directions of the Gauhati High Court in Konsam Brojen Singh v State of Manipur (2006). The counsel representing the detaining authority attempted to counter this argument by referring to the representation made by the detenue on 27 September 2017, where the “detenue on his own volition had requested that the said representation be placed before the Advisory Board and/or any other competent autho­rity under National Security Act for their consideration and appropriate orders” (Akhil Gogoi v State of Assam 2017: para 27). Through this request, the counsel for the detaining authority argued that “the detenue has waived his right to be informed that he has also a right to make the representation before the aforesaid two authorities” (Akhil Gogoi v State of Assam 2017: para 27). Referring to a number of verdicts by the Supreme Court, the counsel for the petitioner asserted that

the right to be informed about the right to submit a representation is a fundamental right under Article 22(5) of the Constitution of India ... [and] no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the constitution and a person certainly cannot give up or waive a breach of his fundamental right. (Akhil Gogoi v State of Assam 2017: para 33)

It may be mentioned that the secretary to the Government of Assam in the home and political department issued an order on 5 December 2017 in which the detenue was informed that he might submit a representation against the order of detention of 24 September 2017 before the detaining authority and also before the central government. However, it was pointed out by the petitioner’s counsel that

the order of detention having been made on 24.09.2017, the opportunity given on 05.12.2017 to make the representation to the detaining authority and the Central government does not constitute an earliest possible opportunity given to the detenue and hence, there is an aberration of Article 22(5) of the Constitution of India. (Akhil Gogoi v State of Assam 2017: para 37)

The court considered the argument at length, and upon analysis of a number of decisions/mandates of the Supreme Court and the Gauhati High Court on relevant cases (Akhil Gogoi v State of ­Assam 2017; paras 35–58) declared that “the order of detention of 24.09.2017 stands vitiated” (Akhil Gogoi v State of Assam 2017: para 59).

Delay in disposing of representation: The second issue that came up for comprehensive scrutiny by the court was the unexplained and extraordinary delay in disposing of the representation of the detenue dated 27 September 2017 submitted before the state government and the chairman of the Advisory Board of the NSA. The state government disposed of the representation on 25 October 2017, after an unexplained delay of 28 days. Although the detenue was not informed in the original order of detention about his right to representation before the central government, the state government on its own transmitted the representation to the central government, which was disposed of on 14 November 2017, 48 days after the date of representation made by the detenue.

By referring to the chronology of the events from the date of submission of the representation by the detenue on 27 September 2017 to its rejection by the state government on 25 October 2017, as submitted by the respondent authorities in the court, the counsel for the detenue exposed the laxity and casualness in transacting and transmitting the representation from one level of the government to the next. The counsel for the petitioner presen­ted a number of decisions of the ­Supreme Court,4 wherein a delay of 17 to 22 days in disposing of the representation submitted by a detenue was considered to be “fatal”. Therefore, the delay of 28 days in disposing of the representation in ­Gogoi’s case was an appropriate example to be considered fatal.

The court scrutinised the unexplained delay in the transaction of the representation and its disposal both by the state government and the central government (Akhil Gogoi v State of Assam 2017: paras 60–65). For example, according to records presented by the respondent
authorities, the state government purportedly sent the representation that was made by the petitioner on 27 September 2017 to the central government on 16 ­October 2017. However, a close scrutiny of the postal receipts indicated that it was sent only on 25 October 2017 through speed post. There was, however, no explanation about why it took nine days to carry out the simple task. The court did not take the inexplicable delay kindly, terming it a violation of principles laid down by the apex court in that regard. Based on those principles too, the order of detention was declared unsustainable, and therefore stood vitiated.

The detenue’s right to know every single ground of detention: Article 22(5) of the Constitution mandates that the right of a person detained under preventive detention to know the ground or grounds on which he or she is being detained is a fundamental right. Can a detaining authority afford not to inform the person detained under preventive detention about the reason or reasons of detention, which apparently are supposed to be known by the detenue?

Gogoi was informed about the grounds of his detention on the very day the detention order was served, that is, 24 September 2017. However, soon the issue of the alleged existence of a “compact disc” (CD) emerged. The detention order mentions the disc, but it was not provided to the detenue while serving the order of detention and communicating the grounds thereof. The dossier provided to the petitioner referred to certain video clippings and video footage which allegedly established that the petitioner had instigated people to take up “AK-47s” against the nation. The counsel for the petitioner contemplated that the said CD might have contained the alleged obnoxious statements made by the petitioner that were considered by the detaining authority in issuing the detention order. The counsel further stated that not providing it to the petitioner amounted to not informing him of all the grounds of detention, which, in turn, would vitiate the order of detention. To validate the arguments, the counsel for the petitioner referred to a number of decisions of the Supreme Court.5 Endorsing the argument, the court categorically stated that having access to all grounds and materials based on which the decision of preventive detention is arrived at is a constitutional right of the detenue under Article 22(5) of the Constitution. While quashing the order of detention in Gogoi’s case, the Gauhati High Court observed

This Court is of the considered view that the grounds for which the concerned CD also constitutes a material for arriving at the satisfaction regarding the existence of the ground, stands vitiated, for not being provided with the CD under reference. (Akhil Gogoi v State of Assam 2017: para 69)

There was a further omission in the detention order. While framing the grounds for detention, the detaining authority made a reference to a police case that resulted in a chargesheet against the petitioner for an incident that occurred on 22 June 2011, in which supporters of the petitioner allegedly set a police vehicle on fire, causing injuries to four persons who were inside the vehicle. This particular information was a half-truth, as it did not mention the fact that a competent criminal court had subsequently acquitted the petitioner in the case. While the half-truth might have been a satisfactory ground for the detaining authority to issue the order of detention, the court found the failure to mention the order of acquittal, an aberration of the principles laid down by the ­Supreme Court, and therefore the information provided by the detaining autho­rity stood vitiated.

Detenue’s right to avail legal assistance in the proceedings before the Advisory Council: In the instant case, the detenue made a specific request through an application on 4 October 2017 that he be allowed to be represented by a legal counsel before the Advisory Board. The application was rejected by the board in an order on 22 October 2017. The counsel for the petitioner argued that such a denial violated Article 14 of the Constitution, which guarantees the right to equality before law. The counsel argued, referring to the mandate of the Supreme Court in A K Roy, Etc v Union of India (1982) where it has been held that

the officer who assists the Advisory Board, although are not legal practitioners or legal advisers, but such officers who assist or advises on facts or law must be deemed to be in a position of a legal adviser and therefore, permitting the detaining authority or the Government to appear before the Advisory Board with the aid of such legal adviser would violate Article 14, if a similar facility is denied to the detenue. (Akhil Gogoi v State of Assam 2017: para 26)

In the instant judgment, the court recorded the mandate of the Supreme Court in paragraph 76 but refrained from providing any conclusive view on the issue. The judge argued that, from the records available before him, it could not be ascertained as to whether any officer of the government having experience of advising the government on facts of law had appeared before the Advisory Board to justify the order of detention, or whether such officers merely carried records.

Non-compliance with laws on preventive detention: In the instant case, as evident from the discussion above, the state authorities indulged in laxity and casualness, which invited strictures by the court. The court, accordingly, directed the chief secretary to the Government of Assam to conduct a detailed enquiry regarding the lapses in the process leading to the order of preventive detention dated 24 September 2017 and all subsequent actions. Such an enquiry has to involve all the persons who had played either a constructive or advisory role in the process. The court directed that a proper analysis be carried out in order to ascertain how such serious lapses occur­red and to take corrective measures so that these are not repeated in future. The court further directed that it is a constitutional requirement for the state government to educate all authorities connected with the process of making and sustaining an order of preventive detention, on the principles as enshrined in Article 22(5) of the Constitution. The Government of Assam has also been asked to set up an effective monitoring mechanism to ensure due compliance with the constitutional requirements in the process of preventive detention.

Notes

1 The three respondents to Gogoi’s Petition (Criminal) No 14 of 2017, are the State of Assam; the District Magistrate Cum Deputy Commissioner, Nagaon, Assam; and the Chairman,
Advisory Board (Constituted under the National Security Act [NSA], 1980).

2 In an interview with Pratidin Time, a local television channel, on 26 December 2017, Gogoi said that the total number of cases registered against him was 119, which is the highest number of cases registered against any political activist or insurgent, in Assam.

3 In the interview with Pratidin Time, Gogoi also asserted that it was one of very few instances in the history of India that the NSA had been used against a political activist, who was leading a non-violent mass movement in the state. Since 2005, he has been arrested 14 times, under various sections of Indian Penal Code, 1874. Gogoi has been booked under Sections 120-A and 120-B (criminal conspiracy); 124-A (sedition) and 125 (waging war against any Asiatic power in alliance with the Government of India); and Section 353 (assault or criminal force to deter public servant from discharge of his duty). (Source: Personal conversation with Gogoi on 30December 2017).

4 Some of these cases are Pabitra N Rana v Union of India (1980), Narinder Singh Suri v Union of India (1980), Sri Saleh Mohammad v Union of India (1980), and Sardar Kasmir Singh v Union of ­India (1981).

5 The counsel referred to the decisions of the ­Supreme Court in the cases of Kamla Kanyalal Khushalani v State of Maharashtra (1981), Ichhu Devi Choraria v Union of India (1980), and ­Pritam Nath Hoon v Union of India (1980).

References

A K Roy, Etc v Union of India (1981): AIR, SC, p 710.

Akhil Gogoi v State of Assam (2017): Writ Petition (Criminal) No 14 of 2017, Gauhati High Court Judgement dated 21 December.

Ichhu Devi Choraria v Union of India reported in (1980): SCC, SC, 4, p 531.

Kamla Kanyalal Khushalani v State of Maharashtra (1981): SSC, SC, 1, p 748.

Kamleshkumar Ishwardas Patel v Union of India (1995): Appeal (Criminal) No 764-65 of 1994, Supreme Court Judgement dated 17 April.

Konsam Brojen Singh v State of Manipur (2006): GLT, GHC, 1, p 375.

Narinder Singh Suri v Union of India (1980): SCC, SC, 2, p 357.

Pabitra N Rana v Union of India (1980): SCC, SC, 2, p 38.

Pritam Nath Hoon v Union of India (1980): SCC, SC, 4, p 525.

Sardar Kasmir Singh v Union of India (1981): SCC, SC, Supp, p 55.

Sri Saleh Mohammad v Union of India (1980): SCC, SC, 4, p 428.

Wire (2017a): “Farmers’ Rights Activist Akhil Gogoi Arrested Under National Security Act,” 26 September, https://thewire.in/181523/assam-farmers-rights-activist-akhil-gogoi-arre....

— (2017b): “Assam Farmers’ Rights Leader Akhil Gogoi Arrested on Sedition Charges,” 14 September, https://thewire.in/177373/assam-farmers-rights-leader-akhil-gogoi-arrest....

(2018): “Watch: Ten Acts of Defiance in 2017,”
1 January, https://thewire.in/209582/watch-ten-acts-defiance-2017/.

Updated On : 26th Mar, 2018

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