The short-shrift to civil liberties has a long history

Senior Advocate Kapil Sibal lamented recently that “liberty is dead in the hearts of men and women in India, including the courts”. Sibal seems to say this is a recent phenomenon, but the roots of this are much older.

In a previous column exactly a year ago (“A Policeman’s Constitution?”) I had written about Somnath Lahiri’s criticism that the Constitution, far from guaranteeing individual rights, was a “policeman’s Constitution”. Lahiri’s concerns were almost validated by the Supreme Court’s judgement in the A K Gopalan case -- the very first judgement of the SC in a constitutional case where the court interpreted fundamental rights in a narrow and pedantic way. Understanding why the court took this position tells us something about the courts today.

Gopalan, a Communist leader, had been in and out of jail for many years before Independence, though never convicted for any offence. He had been “preventively detained”, i.e., before he had committed any crime. Perhaps he thought Independence would change things. However, he was imprisoned by Madras State, invoking its powers under the newly passed Preventive Detention Act, 1950 (PDA). Gopalan challenged the law in the Supreme Court as being unconstitutional. He hoped that with the law struck down, he would be released from prison.

Gopalan, as we know, lost in the SC. All judges but one held that except for one provision, the PDA did not violate the Constitution. Only Section 14, which said that the reasons for detention should not be communicated to any court or to anyone at all, was struck down. This, the court considered too drastic and against Article 22, which allowed a detained person to make a representation against detention. Such a representation, the court reasoned, would be impossible if the person didn’t know the basis for his detention.

However, this was less than what Gopalan wanted. His lawyer, M K Nambyar had made a bold and original interpretation of the Constitution, arguing that though Article 22 permitted preventive detention laws (subject to some restrictions) these laws should also be tested to see whether they impose “reasonable restrictions” on the freedom of movement and restriction guaranteed under Article 19.

The CJI H J Kania, along with a majority of judges, disagreed with Nambyar. Reading through Justice Kania’s judgement, it almost seems as if he was afraid of the consequences of accepting Nambyar’s argument. He doesn’t say that Nambyar’s interpretation is absurd -- it is obvious that preventive detention is a restriction on freedom of movement. However, he seems unsettled about the consequence of the interpretation: that the courts could check the reasonableness of a law relating not just to preventive detention, but even (gasp!) punitive detention, which means questioning the holiest of holy books, the Indian Penal Code!

The thought seems too much for Justice Kania to bear -- better to say that as long as a preventive detention law narrowly meets the limited safeguards of Article 22, it would be constitutional. The charitable view is that he didn’t think the Constitution-makers wanted to give the judiciary so much power. The less charitable view is that he brought a colonial mindset to the Constitution. The other judges more or less agreed with him.

The sole dissenter was Justice Syed Fazl Ali, who did not think it wrong to test criminal laws for their reasonableness. He argued that most criminal laws would anyway pass the test of reasonableness and it is only the completely obnoxious ones that the courts ought to strike down. Even then, he only struck down one more section of the Preventive Detention Act, but that was enough for him to say that Gopalan should be released. Though the judiciary has given fundamental rights more scope over the years since, there has been little protection for civil liberties against State action. Laws that deny bail and legal representation, reverse the burden of proof on to the accused, or allow confessions to a police officer, are routinely upheld by the courts, usually citing some problem that needs to be tackled with an “iron fist”, no matter the innocents who are victimised by such laws.

Though lawyers and judges will tell you that Gopalan’s case is no longer “good law”, the mindset still prevails.