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Modi Govt Shows No Urgency to Change Law Much Abused During Emergency by Indira Gandhi

Modi Govt Shows No Urgency to Change Law Much Abused During Emergency by Indira Gandhi

While the Morarji Desai government was out of power before it could notify the amendment to do away with the provision of indefinite preventive detention under Article 22, the current government has told Parliament that it cannot give a specific time frame for notifying the amendment.

New Delhi: The Centre has failed to specify a time-frame for implementing changes in a law, which was much abused during the Emergency imposed by Indira Gandhi 43 years ago.

While the Morarji Desai government was out of power before it could notify the amendment to do away with the provision of indefinite preventive detention under Article 22, the current government has told Parliament that it cannot give a specific time frame for notifying the amendment.

The statement from the NDA government has come despite passage of almost 40 years since the Constitution was amended with a view to eliminate suppression of civil liberties by subsequent governments under the garb of their powers under Article 22.

Responding to a query by BJP MP Jagdambika Pal, the government has recently told Parliament that the decision on notifying amendments in the law relating to preventive detention has been "postponed". Union Law Minister Ravi Shankar Prasad replied that "no time frame can be given for issuing the notification" for the enforcement of Section 3 of the Constitution (44th Amendment) Act, 1978. The amendments in Article 22 intended to bring about significant changes in the law on preventive detention.

The yet-to-be notified amendment stipulates that no law shall authorise the detention of a person for more than two months unless an advisory board “constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court” has reported about sufficient cause for such detention.

As of today, under Clause 4 of Article 22, the maximum period of detention is three months and there is no mention of the Chief Justice or his role in the advisory board. The amended provision also provides for composition and qualification of the members of the Advisory Board whereas under the existing regime, these decisions are left completely to the whims of the executive government.

Another vital change the 1978-amendment seeks to bring is to eliminate the unbridled power of the Parliament to provide for circumstances under which a person can be detained for a period longer than three months without any recommendation of an advisory board. Under the amended Article 22(4), this power has been completely taken away.

But the government's reply has now made it clear that there has been no positive movements or urgency in notifying the amendments. The reply in the Lok Sabha stated: "While others provisions have since been implemented the provisions relating to Section 3 have not been notified so far. The matter has been considered by the Government in the Ministry of Home Affairs on different occasion and decision in this regard was postponed."

The 44th Constitution Amendment was enacted in June 1979 during the tenure of the Morarji Desai-led Janata government, which had come to power after the Emergency was lifted. The Janata government, however, was short-lived and Indira Gandhi-led Congress returned to power. The enforcement of the changes in the law on preventive detention was then put in the cold storage.

Appointed by the Vajpayee-led NDA government, the National Commission to Review the Working of the Constitution had also recommended enforcement of the amendments in 2002 but to no avail.

Even though the issue pertains to the liberty and fundamental rights, the amendments seem to be in a perpetual state of abeyance, making it perhaps the only out of the 100-odd amendments in the Constitution that still awaits its enforcement.