Protection against Arrest & Detention under Article 22
Introduction: Article 22 provides those procedural requirements which must be adopted and included in any procedural requirements are not complied with, it would then be deprivation of personal liberty which is not in accordance with the procedure established by law. Thus article 22 prescribes the minimum procedure requirements that must be included in any law enacted by the legislature in accordance with which a person may be deprived of his life and personal liberty.
ARTICLE 22– It deals with two separate matters:
- Persons arrested under the ordinary law of crimes
- Persons detained under the law of ‘preventive detention’
The first two clauses of articles deals with detention under the ordinary law of crimes with detention under the ordinary law of crimes and lay down the procedure which has to be followed when a man is arrested and the remaining clauses (3), (4), (5) & (6) deals with persons detained under a preventive detention laws and lay down the procedure which is to be followed when a person is detained under the law.
If we look after article 21 and 22 they both are complementary to each other. The rule of law, in order to enact and for benefit of larger part of society it is necessary to restrain liberty of some people but it must be on basis of sound grounds. Therefore, we have article 22 in our constitution which deals with protection from arrest and detention.
This section basically has seven clauses, the first two clauses (1) & (2) deals with punitive detention, clause (3) with exception and clause (4) to (5) with preventive detention.
The term ‘arrest’ is basically a technical and legal word which means to ‘restrain’. The person who is arrested his maximum liberties are confined and has to stay under custody of law and control.
The word arrest used in ‘article 20’ includes both punitive and preventive arrest. If any person has committed any crime or during fulfilment of any proceeding order or in order to stop any person for committing crime punitive and preventive arrest is made it will be included under ‘article 22’.
But the other civil status which talks about arrest and detention they are not covered under article 22. For example Contract, Income Tax. If any person has not paid his income tax and is liable for arrest that arrest will be of civil nature and not included under article 22.
DIFFERENCE BETWEEN PUNITIVE AND PREVENTIVE ARREST
- The object of ‘punitive detention’ is, if any person has committed crime then he/she shall be punished. Therefore, punitive detention comes in picture only after completion of act. Whereas preventive detention’s object is to stop someone from committing that X person (any person) has potential for committing that crime and in order to stop him from committing crime he/she has to be arrested and that we called as ‘preventive detention’
- Punitive detention can come into action under ordinary laws, whereas preventive detention can only be considered under Preventive Detention Act.
- Under maximum constitution we will find the laws regarding punitive detention but not for preventive detention. Countries like USA has preventive detention law but subject to emergency provisions only.
India is only democratic country where both punitive and preventive laws are in force during normal days.
ARTICLE 22(1) – The right to be informed of grounds of arrest
This clause provide two safeguard-
- Right to be informed of the grounds of arrest
- Right to consult a legal practitioner
In Hussainara Khatoon v. Home Secretary of Bihar (AIR 1979 SC 1377) the Supreme Court has held that it is the constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation, to have free legal services provided to him by the state and the state is under constitutional duty to provide a lawyer to such person if the needs of justice so require. If free legal services are not ‘provided the trial itself may be vitiated as contravening article 21.
ARTICLE 22(1) – This article includes-
- Right to be produced before a magistrate
- No detention beyond 24 hours
If any person is arrested who is accused of any crime, he has to be produced before magistrate before 24 hours. The time which is given i.e. 24 hours under that time of travel or necessary time has been excluded. If authority fails to produce accused within given hours then he has to be released because there cannot be any detention beyond 24 hours. And because of any reason 2 hours has to be extended then it is only possible under judicial custody.
Therefore clauses included under 22(1) & (2) prevails for punitive detention.
The concept of preventive detention was made during the British rule under Bengal Regulation Act, Defense of India Act. During constituting makers recognized as our country is newly democratic country and newly republic therefore they incorporated the concept of preventive detention. Subject to certain safeguards which are mentioned under article 22(4) and 22(7). If violation of these article arise then it will be violation of fundamental rights.
WHO CAN MAKE PREVENTIVE DETENTION LAW?
Centre and State both the powers to formulate preventive detention laws. Centre has derived its powers under schedule VII-list I in which they has exclusive power so that they can formulate laws for-
- Foreign Affairs
- Security of India
At the same time state has its power under schedule VII-list III and has concrete powers to make laws with Centre regarding-
- Maintenance of public order
- Security of state
- Maintenance of essential services
Some of the preventive detention laws are:
- National Security Act (NSA)
- Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNODPSA)
- Prevention of Black Marketing & Maintenance of Supplies of Essential Commodities Act (PBMSECA)
- Conservation of Foreign Exchange & Prevention of Smuggling Activities Act (COFEPOSA)
ARTICLE 22(4) – detenue’s right of representation
The first safeguard under preventive detention is given under 22(4) which says ‘no law providing for preventive detention shall authorize the detention of a persons for a longer period than three months unless advisory board has reported before the expiration three months that there is in its opinion sufficient cause for such detention’.
Clauses (4) to (7) guarantee the following safeguards to a person arrested under preventive detention law:
- Review by advisory board
- Communication of grounds of detention to detenue
- Detenue’s right of representation
At the same time 22(7) which deals with –
- In which cases the limit of three months can be extended
- Which procedure will be followed by advisory board for further enquiry
- Different time prescribed under various preventive detention acts
Therefore, all these are discussed under 22(7).
In Nand lal v. State of Punjab (AIR 1981 SC 2041) the Supreme Court held that the principle of reasonableness is an essential element of equality and the procedure contemplated by article 21 must satisfy the test of reasonableness in order to be conformity with article 14. Thus it is in discretion of the advisory board to provide for legal assistance to detenue before it or not. But discretion should not be exercised arbitrarily. But where no request for legal assistance is made by the detenue it was held that there was no denial of procedural fairness under article 21.
Parliament is empowered to prescribe the procedure to be followed by the advisory board in an inquiry under clause (4).
ARTICLE 22(5) – Communication of grounds of arrest
It gives two right to the detenue-
- Right to be informed
- Right of representation
The clause under (5) imposes an obligation on the detaining authority to furnish the detenue on the grounds for detention “as soon as possible”. The grounds of detention should be very clear and easily understandable by the detenue. The sufficiency of the particulars conveyed to a detenue to make an effective representation.
ARTICLE 22(6) – Exception
Under article 22(6) disclosure of facts which are considered to be against public interest may not be furnished to the detenue. Hence it follows that both the obligations to furnish particulars and the duty to consider whether the disclosure of any facts involved therein is against public interst are vested in the detaining authority, not in any other.
In Habeas Corpus case- A.D.M. Jabalpur v. S. Shukla (AIR 1976 SC 1207) the effect of the decision in habeas corpus case was that courts were barred from examining the question of mal fide of the order of detention or ultra vires character of the orders of detention or that the order was not passed on the subjective satisfaction of the detaining authority.
The decision of the Supreme Court overrules impliedly a number of earlier decisions in which it has claimed that it could examine the validity of the detention order was not passed on the subjective satisfaction of the detention was made mala fide or the detention was made not for the purposes of the preventive detention laws.
Conclusion: The constitution of India and other laws of property abide by and implemented are strong enough to enable any victim of unlawful detention to bring his proceeding before the court.
Author: Nishchal Kukade,
Dr. Babasaheb Ambedkar College of Law, Nagpur Final Year Student