Constitutionality of Kerala Anti-Social Activities Prevention Act (Goonda Act) assailed in Supreme Court

In challenging the preventive detention of a man under the Kerala Anti-Social Activities Prevention Act (KAAPA), a challenge has been hoisted on the constitutionality of the Act itself on the ground that it violates Articles 22 (protection against arrest and detention in certain cases) of the Constitution before the Supreme Court (Ramseena Anas v. The State of Kerala and ors)..A Bench of Chief Justice SA Bobde and Justices AS Bopanna and V Ramasubramnian issued notice in the matter today..The plea has been moved by Ramseena Anas, who has challenged a Kerala High Court judgment dismissing her writ petition seeking the release of her husband, Ansar @ Anas from preventive detention. .Ansar was placed under preventive detention on an order passed in September last year, after being classified as a “Known Rowdy” under the KAAPA. .Anas (petitioner) claims that the detention order was passed belatedly after a gap of seven months from the date of the detenue's last prejducial activity and that relevant materials were not considered before passing the detention order. Among other grounds, it is submitted that the detenue was granted bail in pending cases against him, on various conditions. However, the petitioner says that the detaining authority did not consider whether the conditions imposed in the bail orders were sufficient so as to avoid preventive detention. .Pertinently, the petitioner has questioned the constitutionality of detaining persons under the KAAPA, on grounds that it goes against the 44th Amendment to Article 22 of the Constitution. .The 44th amendment had introduced a clause [clause (4)] to Article 22 so that no law providing for preventive detention shall authorise the detention of a person for longer period than two months unless an Advisory Board constituted, reports that there is sufficient cause for such detention. .The petitioner says that the KAAPA, popularly known as Goonda Act, was enacted without considering this amendment's provisions regarding the constitution of the Advisory Committee as well as the permissible period of preventive detention. In particular, the petitioner says Sections 3, 8, 9, 10 and 12 of KAAPA are unconstitutional for being violative of Article 22. She adds that the other provisions of the Act cannot survive independent of the prescribed procedure under Article 22. .It is also asserted that the 44th amendment should be viewed as having come into force when the President of India assented to the Bill proposing the same. In this regard, it is argued that Section 1 (2) of the Constitution 44th Amendment Act, by which the Central has stated that different provisions of the amendment may come into force on different dates, depending on their notification in the official gazette, has been challenged..“This is unconstitutional and violative of Article 368. The amendment in the constitution is an essential legislative, constitutional function, which could not be delegated. Even the President is incompetent to make ordinances to amend the constitution. Such being the case, delegating the function of of deciding the date on which provision of the Amendment Act would come into force upon the executive is unconstitutional. The 1st respondent (State of Kerala) is trying to sleep over the will of the parliament for more than a period of 30 years," the petitioner adds..The petitioner says that KAAPA runs contrary to a Central enactment on preventive detention i.e. the National Security Act (NSA). While the NSA says that a detention order has to be decided on/ approved within 12 days from the date of the order, the KAAPA only requires that the detention order be approved within 12 days of the date of detention. .Applying Article 254 (inconsistency between laws made by Parliament and laws made by the States) of the Constitution to this matter, the petitioner says that the Central law or the parliamentary enactment of the NSA will prevail over the State's KAAPA. .As it stands, the KAAPA's provisions violate Article 22 (7), the petitioner contends. Article 22 (7) says that the Centre may prescribe the classes of persons who may be detained for more than three months without obtaining the opinion of the advisory board as well as the maximum period of detention for such persons. In view of this provision, the petitioner also asserts that the State legislature is incompetent to make the classification of “rowdy.".Advocates Renjith B Marar, Lakshmi N Kaimal, Biju Vigneswar, Surabhi Santosh, Arun Poomulli and Meera M appeared for the petitioner before the Supreme Court. .[Read Order]