Reviewing The Role Of An Advisory Board Under Preventive Detention Law

The procedure adopted before an Advisory Board and the rights available to a detenu have been interpreted in a manner that render hearings before the Board largely ineffective. The gravest is certainly the denial of the right to legal representation, but there are certain more infractions that contribute to the ineffectiveness in procedure. In sum, relying on previous decisions of the Supreme Court, it will be seen that the over-reliance placed by the Supreme Court on the Advisory Board is misplaced, and the most effective remedy to a detenu against illegal detention remains a habeas corpus petition before a constitutional court.

Advisory Board under the Constitution

An Advisory Board comprises of sitting or retired High Court Judges, or persons who are qualified to be High Court Judges. It has to prepare a report within 03 months from the date of the detention order is passed, tasked with ascertaining whether there is 'sufficient cause' for such detention.[2] To make such determination, the Board is entitled to devise its own procedure and is not restricted to look only at the record produced before it but can also call for further information as it may deem necessary from the appropriate Government or from the detenu itself.[3]

In this context, 02 relevant safeguards that the law provides to check arbitrary detention are – (i) the detaining authority has be to 'satisfied' that there is a need to detain an individual, i.e. there has to be an application of mind (what is called as 'subjective satisfaction'); and (ii) a review by an Advisory Board to ascertain whether there was 'sufficient cause' to detain the person.[4] It is settled law that this 'subjective satisfaction' is not ordinarily open to challenge under Article 226 or 32. Furthermore, the proceedings before the Advisory Board are non-justiciable,[5] i.e. since the Board only functions in an advisory capacity, its opinion cannot be a subject-matter of judicial review.[6]

It is important to keep in mind that throughout the entire exercise before the Advisory Board, Article 22(3) of the Constitution denies one of the most valuable rights available in the criminal justice system, viz. the right to consult, and to be defended by, a legal practitioner of her choice.

Supreme Court's Judgment in Nenavath Bujji

The Court's dictum in Nenavath Bujji is unique for its discussion on the “Role of the Advisory Board”. To our benefit, it succinctly encapsulated what an Advisory Board is supposed to do. In para 57 it lays down the four-fold function as follows :

• To consider the material placed before it;
• To call for further information, if deemed necessary;
• To hear the detenu, if he desires to be heard and;
• To submit a report in writing as to whether there is sufficient cause for “such detention” or whether the detention is justified.

What is slightly puzzling is what follows this narration in the judgment and deserves to be quoted in full :

“58. An Advisory Board is not a mere rubber-stamping authority for an order of preventive detention. Whenever any order of detention is placed before it for review, it must play an active role in ascertaining whether the detention is justified under the law or not. Where it finds that such order of detention is against the spirit of the Act or in contravention of the law as laid down by the courts, it can definitely opine that the order of detention is not sustainable and should not shy away from expressing the same in its report.

59. As stated by us above, preventive detention being a draconian measure, any order of detention as a result of a capricious or routine exercise of powers must be nipped in the bud. It must be struck down at the first available threshold and as such, it should be the Advisory Board that must take into consideration all aspects not just the subjective satisfaction of the detaining authorities but whether such satisfaction justifies detention of the detenu. The Advisory Board must consider whether the detention is necessary not just in the eyes of the detaining authority but also in the eyes of law.”

(emphasis supplied)

The Court therefore explains the role of an Advisory Board as not only to analyse if there is 'sufficient cause' for the detention but also if the order of detention is against the law laid down by the Courts, thereby including in its ambit possible breach in procedure while detaining the individual. In this sense, it seems to equate the function of a 'Court' exercising powers under Article 32 or 226, and that of an Advisory Board under Article 22.

Nature of Inquiry by the Advisory Board

The change in approach to the role of an Advisory Board, as the Supreme Court explains in para 49 of Nenavath Bujji, seems to be so that illegal detentions should be “nipped in the bud”. While that would be ideal, judgments over the years have seriously restricted the rights of the detenu who come before an Advisory Board, which effectively render the proceedings before the Board ineffective in terms of adjudicating the matter like a court of law would. Some of these curtailments are as follows :

• Detenu has no right to appear through a lawyer and can be represented through a 'friend' only if the detenu specifically requests.[7]
• Detenu has no right to cross-examine witnesses deposing against them;[8] the Court goes so far to hold that even the written representation to be forwarded to the Advisory Board cannot even be “expatiated” by a legal practitioner.[9]
• There is no obligation on the Board to provide a personal hearing to the detenu;[10] as a corollary, till the time a written representation is considered by the Board, not providing oral hearing is not considered 'unreasonableness' in procedure.[11]
• The proceedings before the Board are neither made public[12] nor are the report and the documents shared with the detenu.[13]
• It is not mandatory for the Board to pass a speaking order, though a brief expression of the principal reasons is “desirable”.[14]

These curtailed rights make the procedure before the Board extremely opaque and difficult to navigate for a person detained under preventive detention. The burden, on every step, is put on the detenu to avail the rights available to him, while also simultaneously denying any legal representation, except of course to invoke the writ jurisdiction under Article 226 or Article 32, either themselves or through someone.

Institutional Capacity

To take an example of the ineffectiveness in procedure, in a recent judgment of the Division Bench of the Madras High Court in Ganeshkumar v. The Principal Secretary to Government & Ors.,[15] the Court called for the statistics for the past 05 years in relation to the constitution, number of sittings and the decisions taken by the Advisory Board under the Tamil Nadu Goondas Act, 1982.[16] It observed that for the past several years only 01 Advisory Board had been constituted; and 16,171 cases were referred to the Advisory Board – out which it confirmed 12,316 cases (about 76%) and remaining 3,855 cases were revoked by the Government on the report of the Advisory Board.[17]

Furthermore, taking the year 2022 as an example, the Court goes on to calculate that as per the data furnished by the State, 4,309 cases were referred to the Advisory Board, working 04 hours in each meeting (13 meeting every month, i.e. 156 meetings in a year), it concluded that, on an average, the Board considered 27 cases in each meeting and spent only 9 minutes for each detenu.[18]

There is no doubt that constitutional courts, even if taking preventive detention matters on priority, take time to hear and decide a habeas corpus petition. But absent any judicial authority checking the invocation of preventive detention law, a 'Court' provides the most independent and substantive review to a detention order.[19]

Denial of a right to legal representation before an Advisory Board goes to the very root of the proceeding. A detenu is left to navigate the rigmarole of detention without trial, without effective legal representation and bears the burden to argue their own case before a body which is put on the clock to render a report within 03-months from the day the detention order is passed. In these circumstances, the Court's exposition in Nenavath Bujji of the role of the Advisory Board to check illegal detentions is misplaced and would, in all probability, make little impact in reducing arbitrary detentions.

The author is a Law Researcher at Delhi High Court. Views are personal.