PROTECTION AGAINST
ARREST AND DETENTION
Article 22
Article 22 grants protection to persons who are arrested or detained.
Detention is of two types, namely, punitive and preventive.
Punitive detention is to punish a person for an offence committed by
him after trial and conviction in a court.
Preventive detention, on the other hand,
means detention of a person without trial and conviction by a court.
Its purpose is not to punish a person for a past offence but to prevent
him from committing an offence in the near future.
Thus, preventive detention is only a precautionary measure and
based on suspicion.
The Article 22 has two parts—the first part deals with the
cases of ordinary law and the second part deals with the
cases of preventive detention law.
(a) The first part of Article 22 confers the following rights on
a person who is arrested or detained under an ordinary law:
(i Right to be informed of the grounds of arrest.
(ii) Right to consult and be defended by a legal practitioner.
(iii) Right to be produced before a magistrate within 24
hours, excluding the journey time.
(iv) Right to be released after 24 hours unless the magistrate
authorises further detention.
These safeguards are not available to an alien or a person
arrested or detained under a preventive detention law.
The Supreme Court also ruled that the arrest and
detention in the first part of Article 22
do not cover arrest under the orders of a court, civil
arrest, arrest on failure to pay the income tax, and
deportation of an alien.
They apply only to an act of a criminal or quasi-criminal
nature or some activity prejudicial to public interest .
(b) The second part of Article 22 grants protection to persons
who are arrested or detained under a preventive detention
law. This protection is available to both citizens as well as
aliens and includes the following:
(i) The detention of a person cannot exceed three months
unless an advisory board reports sufficient cause for extended
detention. The board is to consist of judges of a high court.
(ii) The grounds of detention should be communicated to the
detenu. However, the facts considered to be against the
public interest need not be disclosed.
(iii) The detenu should be afforded an opportunity to make a
representation against the detention order. Article 22 also authorises the
Parliament to prescribe
(a) the circumstances and the classes of cases in which a person can be
detained for more than three months under a preventive detention law
without obtaining the opinion of an advisory board;
(b) the maximum period for which a person can be detained in any classes
of cases under a preventive detention law; and
(c) the procedure to be followed by an advisory board in an inquiry.
The 44th Amendment Act of 1978 has reduced the period of detention
without obtaining the opinion of an advisory board from three to two
months. However, this provision has not yet been brought into force,
hence, the original period of three months still continues.
The Constitution has divided the legislative power with regard to
preventive detention between the Parliament and the state
legislatures.
The Parliament has exclusive authority
to make a law of preventive detention for reasons connected with
defence foreign affairs and the security of India.
Both the Parliament as well as the state legislatures can
concurrently make a law of preventive detention for reasons
connected with the security of a state,
the maintenance of public order and the maintenance of supplies
and services essential to the community.
The preventive detention laws made by the Parliament are:
(a) Preventive Detention Act, 1950. Expired in 1969.
(b) Maintenance of Internal Security Act (MISA), 1971. Repealed in 1978.
(c) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act
(COFEPOSA), 1974.
(d) National Security Act (NASA), 1980.
(e) Prevention of Blackmarketing and Maintenance of Supplies of Essential
Commodities Act (PBMSECA), 1980.
(f Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985. Repealed in
1995. (g) Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act (PITNDPSA), 1988. (10 Prevention of Terrorism Act (POTA), 2002.
Repealed in 2004. It is unfortunate to know that no democratic country in the world
has made preventive detention as an integral part of the Constitution as has been
done in India. It is unknown in USA. It was resorted to in Britain only during
Article 22
Safeguards against the arbitrary arrest and detention: Article 22 Article 22 makes
the minimum procedural requirements which must be included in any law enacted
by legislature in accordance of which a person is deprived of his personal liberty.
Article 22(1) and (2) are also called Rights of an arrested person
A person cannot be arrested and detained without being informed why he is being
arrested.
A person who is arrested cannot be denied to be defended by a legal practitioner of
his choice. This means that the arrested person has right to hire a legal practitioner
to defend himself/ herself.
Every person who has been arrested would be produced before the nearest
magistrate within 24 hours.
The custody of the detained person cannot be beyond the said period by the
authority of magistrate
The Article 22(1) and 22(2) make the above provisions
However, Article 22(3) says that the above safeguards are not
available to the following:
If the person is at the time being an enemy alien.
If the person is arrested under certain law made for the purpose of “
Preventive Detention”
The first condition above is justified, because when India is in war,
the citizen of the enemy country may be arrested.
But the second clause was not easy to justify by the constituent
assembly.
This was one of the few provisions which resulted in stormy and
acrimonious discussions.
Preventive Detention Laws A person can be put in jail / custody for two reasons .
One is that he has committed a crime.
Another is that he is potential to commit a crime in future.
The custody arising out of the later is preventive detention and in
this, a person is deemed likely to commit a crime. Thus
Preventive Detention is done before the crime has been committed.
The definition of Preventive detention itself is so confusing. For
example: How one can say that a person will do a crime in
future? What are the implications of arresting a person without
having committed a crime? Why Preventive Detention in
peacetime. Isn’t it against the safeguards of our own citizens as
provided by Article 22?
http://www.gktoday.in/article-22-and-preventive-detention-in-india/
The preventive detention laws are repugnant to modern
democratic constitutions---
They are not found in any of the democratic countries.
In England, the preventive detention law was resorted to only
during the time of war.
Of the provisions of the “Preventive Detention” are unlawful in most
countries like USA & UK, then why we India has such thing?
The answer of above question is as follows: India is a country having
multi-ethnic, mutli-religious and multilingual society. Caste and
communal violence is very common in India. Apart from that the
circumstances at the time , when our constitution came in force
demanded such provisions.
http://www.gktoday.in/article-22-and-preventive-detention-in-india/
Cntd….
This is evident from following statement of Dr.
Bhimrao Ambedkar: “….in the present
circumstances of the country,
it may be necessary for the executive to detain a
person who is tempering either with the public order or
with the defense services of the country. In such case,
I don’t think that the exigency of the liberty of an
individual shall be above the interests of the state” Dr.
B R Ambedkar.
However, the provisions of the constitution seem to be ambiguous and this
ambiguity has been tried to do away with some provisions.
These provisions are mentioned in Article 22 (1), 22(5), 22 (6).
Here is a summary of these provisions:
1. Every case of preventive detention must be authorized by law and not at the will
of the executive.
2. The Preventive detention cannot extend beyond a period of 3 months Every case
of preventive detention must be placed before an Advisory Board composed of
Judges of the High Court (or persons qualified for Judges of the High Court)
3. The case must be presented before the Advisory Board within 3 months.
4. A continued detention after 3 months must be having a “favours of the Advisory
Board”.
5. The person will be given opportunity to afford earliest opportunity to make a
representation against the preventive detention.
6. No person can be detained indefinitely
Article 22 (7) provides exception to the above
provisions.
This Article mandates that: When parliament
prescribes by law the circumstances under which a
person may be kept in detention may be kept in
detention beyond 3 months without the opinion of
the advisory board. Parliament by law can also
describe under the same law, the maximum period
of detention.
Right Against Exploitation In Indian Constitution
The Rights against Exploitation is provided under
Articles 23 and 24 of the Constitution of India.
Right to personal liberty is never real if some people are
exposed to exploitation by others.
Arts. 23 and 24 of the constitution are designed to
prevent exploitation of men by men.
Thus rights ensured by these two articles may be
considered as complimentary to the individual rights
secured by Arts. 19 and 21 of the constitution.
Article 23 of the Indian Constitution reads as follows :
“Traffic in human beings and beggar
and similar other forms of forced labour are
prohibited
and any contravention of this provision shall be an
offence punishable in accordance with law.”
“Nothing in this article shall prevent the state from
imposing compulsory service for public purposes
and in imposing such service the state shall not
make any discrimination on grounds only of
religion, race, caste of class or any of them.
Cntd…
It is available to both citizen and non citizen.
Art 23 protects individual not only against the state but
also private citizens.
Begar-is involuntary work without payment.
This clause does not prohibit forced labour as
punishment for a criminal offence.
Vishal jeet v. UOI AIR 1990 SC 1412-Sc issued
direction to state govts and UT’s for eradicating the evil
of child prostitution and for evolving programes for the
care ,protection, treatment etc.
Gaurav jain v UOI AIR1990 SC 292-problem of prostitution
Immoral traffic prevention Act 1956
And art 39(e)n (f) obligation on state for protection of children and
youth against exploitation and against moral and material
abandonment.
Chandra v. state of rajasthan AIR 1959 Raj 186(sarpach of the
village ordered every household to send one man with spade and iron
pan, to render free service for the embankment for the village tank,n
Rajastahn HC held this order to be begar and violative of 23(1).
Kahason thangkhul v simirei shailei AIR 1961 Manipur 1 one day
free labour of one man from each household everyone to headman
of the village was declared as begar.
Cntd….
Ever since the dawn of civilization in every society, the stronger exploited the
weak.
Slavery was the most prevalent and perhaps the cruelest form of human
exploitation.
Our constitution does not explicitly forbid slavery.
The scope of Article 23 is far wide.
Any form of exploitation is forbidden.
Thus forcing the landless labour to render free service by the land-owner is
unconstitutional.
Equally, forcing helpless women into prostitution is a crime. The intention
of the constitution is that whatever a person does must be voluntary.
There must not be any element of coercion involved behind a man’s action.
Cntd…exception
The state however may call upon citizens to render
national service in defence of the country.
Thus conscription is not unconstitutional. But in
compelling people to render national service,
the state must not discriminate on grounds of
race, sex, caste or religion.
Article 24
Art. 24 forbids employment of child-labour in
factories or in hazardous works.
The art. reads ”No child below the age of fourteen
years, shall be employed to work in any factory or
mine or, engaged in any other hazardous
employment.”
Cntd….
In an environment of all pervading poverty, children are often forced to
seek employment to earn a living.
Employers often find it less costly to engage child labour at a cheap price.
But children so employed do not get opportunities for development.
Thus, employment of child labour is a form of traffic in human beings.
Hence it is justifiably –forbidden.
But employment of child labour cannot be effectively checked unless
there is overall improvement of economic conditions of the poorer
sections of the society.
This provision of the constitution remains a pious wish even today.
