Report No. 47
We now proceed to consider a politically and constitutionally sensitive subject which has been referred to us by Government. It relates to the problem of invoking the Preventive Detention Act against persons guilty of social and economic offences
16.2. Desirability of preventive detention.-
Government have from time to time considered the desirability of subjecting to preventive detention persons habitually engaged in offences against the laws relating to customs, excise and foreign exchange. It has been realised, and rightly in our opinion, that the Preventive Detention Act, as it now stands, may notlustify the detention of such persons. "Maintenance of supplies and services essential to the community" may not cover the cases of such persons unless a 'proximate relation' were to be established to the satisfaction of the court between the maintenance of such supplies and services on the one hand and the activities of these persons, say, for instance, smuggling, on the other. A further problem that has caused anxiety from time to time has been whether an amendment of the Preventive Detention Act will be sufficient for the purpose or whether nothing short of a constitutional amendment will suffice.
16.3. Preventive detention and the rule of law.-
We believe that preventive detention is an anachronism in a democratic society like ours, based on the principle of the rule of law. The detention of individuals without trial for any length of time, howsoever short, is thoroughly inconsistent with the basic ideals of our Government. The Constitution indeed does not countenance any general power of preventive detention and both the Union and the State Governments have been empowered to make laws authorising such detention only for specified purposes. These powers have been given by way of necessity because it was felt that, howsoever repugnant the idea of preventive detention may be, in certain situations and for certain purposes it was advisable to resort to this extreme power rather than take the grave risks which the State will have to face in the absence of such power.
We would naturally be reluctant to recommend extension of that power to any new areas. But, after careful consideration, we have come to the conclusion that, if preventive detention were ever justified, it would be for the purpose of preventing some of the offences under consideration, namely, offences against the regulations of foreign exchange, excise and customs. These offences acquire an ominous character because of the immense impact they have on the well-being of the entire nation by virtue of their pernicious effect on vital national policies. In times of war and other emergencies they acquire a further and even more dangerous dimension because of the usual association of smuggling with espionage. We are, therefore, satisfied ' that the Union Government should not be without power to detain preventively hardened offenders against the laws of customs, excise and foreign exchange.
16.4. Need for constitutional amendment.-
The next question is whether any statutory or constitutional amendment is required to give the Central Government such power. We are of opinion that the Preventive Detention Act as it now stands will be inadequate to cover the detention of such offenders. Obviously, such persons are not covered under the rubrics of defence, foreign affairs, security of India, security of State, maintenance of public order or the maintenance of supplies and services essential to the community.
Although activities like smuggling may have an indirect impact on any or some of these matters, it is difficult to see how such relation can be regarded a direct and proximate relation in terms of the judicial standard laid down in Rex v. Bastidev, AIR 1950 FC 67: 1949 FCR 657 and subsequent cases. The Preventive Detention Act, therefore, may have to be amended in order to give express authority for the detention of persons habitually engaged in anti-social activities in violation of the laws of customs, imports and exports, foreign exchange and the like.
16.5. Legislative competence.-
That raises the further question about the legislative competence of Parliament to make such an amendment. Before the recent judgment of the Supreme Court in Union of India v. H.S. Dhillon, (1971) 2 SCC 779 doubts would have been entertained about the competence of Parliament to extend preventive detention beyond the categories enumerated in Item 9 of List I and Item 3 of List III of the Seventh Schedule to the Constitution. It could have been argued that no such power could be read into entry 97 of List I, relating to residuary power, and clause (2) of Article 248 relating to the same power. It could also have been argued that the residuary power does not cover preventive detention, inasmuch as the subject has been dealt with in express items in the two aforesaid entries.
16.6. Judgment in Union of India v. H.S. Dhillon.-
However, the majority opinion in the Supreme Court decision, above referred to1 makes that argument untenable since it lays down the proposition that item 97, of List I and Article 248 cover not only those powers which are not expressly included in the Second and Third Lists, but also powers which are either not stated in any of the three Lists, or, even those which have been expressly withheld from Items in List I but not conferred in Lists II and III. Thus, the Court has held that the power to impose a tax on the capital value of agricultural land is available to Parliament as a residuary power, although, entry 86 of List I expressly excludes such power from the grant it makes to Parliament. The Court has also held that, since the power to impose a tax on agricultural land is not conferred in either List II or in List III, it must be read in the residuary power, notwithstanding the fact that Item 86 of List I expressly withholds it from the grant it makes.
The basic philosophy of the majority opinion is that there can be no vacuum of legislative power, and therefore any power not covered by all the three Lists taken together must be found in item 97 of List I as a residuary power. We are in general agreement with this philosophy of interpretation of the provisions of the Constitution dealing with the federal distributidn of powers. There is ample support for it, as the majority opinion itself has pointed out, in the precedents of the other Commonwealth countries.
1. Union of India v. H.S. Dhillon, (1971) 2 SCC 779.
16.7. Majority view analysed.-
This decision would apparently lend support to the view that Parliament, under its residuary powers, may authorise preventive detention for reason not enumerated in item 9 of List I and Item 3 of List II. In fact, the majority opinion has illustrated its point directly with the help of the provisions relating to preventive detention, and has expressed the opinion that entry 9 of List I and entry 3 of List III do not exhaust the legislative power over the subject of preventive detention. The Court has observed:
"We may illustrate this point with reference to some other entries. In Entry 9, List I, 'Preventive Detention for reasons connected with defence, foreign affairs or the security of India' the matter is not Preventive Detention but the whole entry. Similarly, in Entry 3, List III, 'Preventive Detention for reasons connected with the security of the State, the maintenance of public order or the maintenance of supplies and services essential to the community' the matter is not Preventive Detention but the whole entry. It would be erroneous to say that Entry 9, List I and Entry 3, List III deal with the same matter."
16.8. There would, thus, seem to be basis in the majority opinion for the view that Parliament has the legislative competence to legislate on preventive detention for reasons not indicated in Item 9 of List I and Item 3 of List III.
16.9. Opposite view considered.-
It is possible, however, to argue that there is a radical difference between wealth tax on agricultural land and preventive detention for smuggling. Taxation is a normal power inherent in Governments and it may be legitimately read as a residuary power; and that is what the majority decision in Dhillon's case has done. If the minority decision in the said case were accepted, it would lead to the constitutionally anomalous position that the power of taxation, which is inherent in every sovereign State is not available to Parliament or the State Legislatures in respect of income on agricultural land and the said income would stand outside the reach of the legislative power of Indian Republic. That clearly is an untenable position. That is why we are in agreement with the majority view.
16.10. But, preventive detention is not a power of that kind; in view of the provisions of clauses (1) and (2) of Article 22, neither Parliament nor the Legislature of a State would have any power to legislate on preventive detention but for the express provisions in the respective entries in the Seventh Schedule. Whereas, even if there had been no express entries about the wealth tax, the power to legislative on wealth tax could be legitimately read in the residuary power. Such an interpretation of a residuary power in respect of preventive detention is, in our opinion, impermissible, because preventive detention attributable to Entry 97 would directly violate clauses (1) and (2) of Article 22 and these clauses represent fundamental rights guaranteed to the citizens of India.
16.11. In fairness to the majority decision, we ought to add that the observations from the majority judgment, which we have quoted above, are obiter dicta, and the constitutional aspect of the matter pertaining to preventive detention does not appear to have been brought to the notice of the Court and has, therefore, not been considered. Thus, in our view, the position with regard to the power to legislate on preventive detention is substantially and radically different from the power to levy wealth tax.
We have carefully considered this question and have given due consideration to the general tenor of the majority decision in Dhillon's case and the obiter observations made by Chief Justice Sikri who spoke for the majority in the said case. Our considered opinion is that, on the whole, it would be advisable for the Government to secure a constitutional amendment enlarging the contents of Item 9 in List I of the Seventh Schedule. We accordingly suggest that Item 9 of List I may be amended so as to read as follows:-
"Preventive Detention for reasons connected with Defence, Foreign Affairs, the security of India, the effective realisation of duties of Customs and Excise, or the conservation of Foreign Exchange; persons subjected to such detention."