[Preventive Detention] 44th Amendment on paper for 44 years: Senior Counsel Vijay Hansaria writes to Law Minister

Senior Advocate Vijay Hansaria has written to the Union Law Minister urging him to implement and enforce the 44th Constitutional amendment that reduces the maximum preventive detention period from three to two months when not in concurrence with the Advisory Board for the purpose. .Emphasising that preventive detention is "a sworn enemy of individual liberty", the senior Supreme Court lawyer stated that the said amendment to Article 22, passed in 1978, contains important safeguards to prevent the abuse of the law. "The amendment, though part of the Constitution, has not been in operation for the last 44 years. I am writing this open letter to you with a fond hope that you will take urgent steps to issue notification to bring into force Section 3 ... as regards constitutional safeguards against preventive detention in a year when were celebrating 75 years of Azadi ka Amrit Mahotsav," the letter said.Section 3 of the 44th Constitutional Amendment Act provides for the preventive detention period to be two months maximum the same is not in concurrence with an Advisory Board. It further provides that this Board shall comprise a serving High Court judge as chairperson and retired or serving judges as fellow members, appointed on the recommendation of the Chief Justice of the High Court concerned. .The letter highlighted over two dozen legislations in place, including at the State and Central levels, that provide for preventive detention.The open letter was prompted by the March 15 constitution of a three judge Advisory Board comprising Delhi High Court Justices, under the National Security Act."An important constitutional amendment is on paper only" the letter stated, explaining how other democracies like Japan, America and the UK have such laws only during war time. The letter also pointed out that when the 44th Amendment was introduced, then Union Law Minister Shanti Bhushan had emphasised the need to have safeguards in the unpopular law, while late Senior Advocate Ram Jethmalani had said it must cease to be a feature of the Constitution so that no 'future dictator' could arrest critics.The letter also cited the Supreme Court decision in AK Roy v. Union of India where the Court had refused to issue a writ of mandamus to implement the 44th Amendment on the ground that it is the prerogative of the government. Highlighting the time that has lapsed since the passing of the amendment, the letter said urging the Law Minister Kiren Rijiju as well Members of Parliament to enforce the same by notifying it. .[Read letter]