New Delhi : Despite condemning indefinite preventive detentions during the Emergency in meetings held by the BJP across the country to mark its 41th anniversary, nobody in the government has bothered to enforce the curbs on such detentions.
Clauses 4 and 7 in Article 22 of the Constitution on the preventive detention were much abused during the Emergency period in what was condemned as “constitutional tyranny.”The Morarji Desai government had sought to put curbs on such a tyranny by enacting the Constitution (44th Amendment) Act in 1978, but the new provision restricting the preventive detentions to maximum two months remains on paper even after three and a half decades.
The government has to just notify the date for enforcement of Section 3 of the Act that inserts new clause 4 allowing any further detention only on the opinion of the advisory board to be set up on the recommendation of the concerned High Court Chief Justice. Since the Morarji Desai-led government did not last long, the very same Indira Gandhi who had imposed the Emergency returned to power and put enforcement of the particular section in the cold storage.However, even many non-Congress governments also did not bother to notify implementation of the particular provision on detentions.
It is because of this lapse that Clause 7 in the Article 22 is still in vogue empowering Parliament to allow detention of a person for a much longer period under any law providing for prevention detentions without obtaining the opinion of an advisory board.
The legal luminaries are worried that any vindictive government or police may put people under very long or indefinite preventive detention just because there is no will on the part of the governments, including the Modi government, to bring on board the Constitutional provision to put such a draconian power under check.
