Article 22 ~ UPSC Polity Notes

Safeguards against Arbitrary Arrest and Detention

Part I: Detained under an Ordinary Law

Clauses (1) and (2) of Article 22 guarantee four rights on a person who is arrested for any offence under an ordinary law-

The right to be informed ‘as soon as may be’ of ground of arrest’.
The right to consult and to be represented by a lawyer of his own choice.
The right to be produced before a magistrate within 24 hours.
The freedom from detention beyond the said period except by the order of the magistrate.

The above fundamental rights guaranteed to arrested persons by clauses (1) and (2) of Article 22 are available to both citizens and non-citizens and not to persons arrested and detained under any law providing for preventive detention.

The rights to be informed of grounds of arrest

It is necessary to enable the arrested person to know the grounds of his arrest and to prepare for his defence.
Article 22(1) is in the nature of a directive to the arresting authorities to disclose the grounds of arrest of a person immediately.
If the ground of arrest is delayed, it must be justified by ‘reasonable circumstances.
This right of being informed of the grounds of arrest is not dispensed with by offering to make bail to the arrested person.

Right to be defended by a lawyer of his own choice

In Hussainara Khatoon vs Home Secretary, State of Bihar,1979 case, the SC held that its is the constitutional right of every accused person who is unable to engage a lawyer, 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.

Right to be produced before a magistrate

The arrested person must be produced before the Magistrate within 24 hours of his arrest.

No Detention beyond 24 hours except by order of the Magistrate

The expression ‘arrest and detention’ in Articles 22(1) and (2) was held not to apply to a person arrested under a warrant issued by the court on criminal or quasi-criminal complaint or under security proceedings.
It was designed to give protection against the act of the Executive or order of non-judicial authorities and applies to a person who has been accused of a crime or of offence of criminal or quasi-criminal nature or some act prejudicial to the State or public interest.

Exceptions

Clause (3) of Article 22 provides two exceptions to the rule contained in clauses (1) and (2).
It provides that the rights given to arrested person under clauses (1) and (2) are not available to following persons:

An enemy alien
A person arrested and detained under Preventive Detention law

Part II: Preventive Detention

Meaning of Preventive Detention

It involves the detainment (containment) of a person in order to keep him/her from committing future crimes and/or from escaping future prosecution.

Article 22 (3) (b) of the Constitution allows for preventive detention and restriction on personal liberty for reasons of state security and public order.

Safeguards against arrest or detention made under a law providing for preventive detention [articles 22(4) to (7)]

Clauses (4) to (7) of Article 22 contain the procedural requirements which are to be complied with when a person is detained under a law providing for preventive detention. These are as follows-

No detention beyond three months unless such detention is approved by the Advisory Board.
The detaining authority must communicate, as soon as may be, to the detenu, the grounds for such detention.
The detenu must be afforded the earliest opportunity of making a representation against the order of detention.
No detention beyond the maximum period prescribed under a law made by Parliament under Clause 7(a).

Article 22(7)(a) provides: “Parliament may by law prescribe the circumstances under which and the class or classes of cases in which, a person may be detained for a period longer than three months under any law for consideration providing for preventive detention without obtaining the opinion of an il a final decision Advisory Board in accordance with the provisions of sub-clause (a) of clause (4).

Purpose of the Preventive detention

In the case of Mariappan vs. The District Collector and Others, the Court held that the aim of detention and its laws is not to punish anyone but to stop certain crimes from being committed.

Safeguards against the misuse of power of Detention

Every case of preventive detention must be authorised by the law and not at the will of the executive.
In fact, the Preventive detention cannot extend beyond a period of 3 months.
Every case of the preventive detention must be placed before an Advisory Board composed of the Judges of the High Court (or persons qualified for Judges of the High Court)
In fact, the case must be presented before the Advisory Board approx. within 3 months.
A continued detention after 3 months must have consent of the Advisory Board.
In fact, the person will be given the opportunity to afford the earliest opportunity to make a representation against preventive detention.
No person can be detained indefinitely.

Preventive Detention – Issues:

Arbitrariness: Police decisions on whether a person poses a threat are not tested in court by leading evidence or evaluated by legally educated individuals.
Violation of human rights: Quite frequently, there is no trial (up to three months), no periodic review, and no legal representation for the imprisoned person.
Abuse: It lacks any procedural safeguards to decrease detainees’ vulnerability to torture and discriminatory treatment, as well as to prohibit authorities from utilising preventative detention for subversive purposes.
Suppression tool: In the lack of adequate protections, preventative detention has been used inappropriately, notably against Dalits and minorities.

It is strange that the framers of our Constitution, who were once victims of the tyranny of preventative detention laws, opted to extend powers to governments to establish such laws under the Constitution.

Section 50 of the Criminal Procedure Code (CRPC) states that everyone detained must be notified of the reason for their arrest and has the right to bail. In actuality, though, obtaining bail is not an easy procedure.

Muntazir Ahmad Bhat v. UT of J&K (2021)

The Bench stated that while violent behaviour is not new, today’s extremism, radicalism, and terrorism in their full expression have taken on a new character and represent tremendous challenges to the civilised world. As a result, to keep an eye on the detainees’ illicit conduct, the Bench rejected the plea of freeing a preventive detenuee.

Abhayraj Gupta v. Superintendent, Central Jail, Bareilly

The Allahabad High Court quashed a detention order issued against a murder suspect by exercising powers under the National Security Act, 1980, stating that if a person is in custody and there is no imminent possibility of his release, the power of preventive detention should not be exercised. In considering the detention order issued against the petitioner, the Court noted that the detention order contained a blatant assertion that if the petitioner is released on bond, he may engage in criminal activity again.

Guidelines given by the Supreme Court:

The detention of an individual under preventive detention law should be based on apprehensions that the concerned person is a threat to “public order” affecting the community at large. Mere ‘law and order’ problems such as indulging in cheating or criminal breach of trust would not be sufficient.

The state should not arbitrarily use preventive detention to deal with all “law and order” problems, which could be dealt with by ordinary law.

In all such cases, the court must ask one question in deciding its legality, i.e., was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal.

Moreover, preventive detention must fall within the four corners of Article 21 (due process of law). It must be read with Article 22 (safeguards against arbitrary arrest and detention) and the statute in question.