the-article-22-protection-against-arrest-and-detention

 

 

 

 


 

Article 22 says:

Part I: Detained under an Ordinary Law:

  • No person who is arrested shall be detained in custody without being informed
  • Nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
  • Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate.
  • No such person shall be detained in custody beyond the said period without the authority of a magistrate.
  • The safeguards are not available to an enemy alien or a person arrested or detained under a preventive detention law.
  • The SC also ruled that the arrest and detention in the first part of the Article 22 (cases of ordinary law) 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.

 

Part II: Preventive Detention

  • No law providing for preventive detention shall authorise the detention of a person for a longer period than three months ( Condition: unless  an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention).
  • Communicate to such a person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
  • 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 providing for preventive detention without obtaining the opinion of an Advisory Board 
  • The maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention3
  • The procedure to be followed by an Advisory Board in an inquiry.
  • Safeguards against the misuse of power of Detention
  1. Every case of the preventive detention must be authorized by the law and not at the will of the executive.
  2. In fact, the Preventive detention cannot extend beyond a period of 3 months .
  3. The 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)
  4. In fact, the case must be presented before the Advisory Board approx within 3 months.
  5. A continued detention after 3 months must have consent of the Advisory Board.
  6. In fact, the person will be given the opportunity to afford the earliest opportunity to make a representation against preventive detention.
  7. No person can be detained indefinitely
  • Examples of Preventive Detention Laws since Independence
  • The first Preventive Detention Act was passed in the year of 1950.
  • The validity of this act was challenged in the Supreme Court in the Gopalan v/s State of the Madras Court. In fact, the Supreme Court held this act constitutionally valid except for some provisions. However, this act expired in the year of 1969, and also before it expired, it was amended for approx 7 times, each expansion was to make it valid for 3 more years and also this it was extended till 31 December in the year of 1969.
  • Maintenance of Internal Security Act (MISA), 1971.The MISA was basically a modified version of the PDA Act. It was abolished in the year of 1978.
  • The conservation of the Foreign exchange and also the Prevention of Smuggling Activities (COFEPOSA) was enacted in the year of 1974 and it continued.
  • National Security Act (NASA), 1980.
  • Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985. Repealed in 1995.
  • The Prevention of Illicit Traffic in the Narcotic Drugs and also the Psychotropic Substances Act (PITNDPSA), 1988.
  • Prevention of Terrorism Act (POTA), 2002. Repealed in 2004.
  • Demand for notification of Section 3 to Article 22
  • Section 3 of the Constitution (44th Amendment) Act, 1978, which has not been notified, despite passage of more than three and a half decades of its passing.
  • Section 3 substitutes Clauses 4 and 7 in Article 22 of the Constitution relating to the subject of “preventive detention”, often referred to as “constitutional tyranny,” much abused during the Emergency period.
  • Salient provisions of the amended clause: [i]The duly amended but yet-to-be-enforced Clause 4 stipulates that no law providing for preventive detention shall authorize the detention of a person for more than two months unless an Advisory Board constituted in the accordance with the recommendations of the Chief Justice of the High Court has reported before the completions of the two months that there is sufficient cause for the detentions.
  • As of today, in Clause 4, the ‘maximum period’ is three months and there is no mention of the Chief Justice, much less his assigned role. [ii]The amended clause also provides that the Advisory Board would consist of a chairman & not less than two other members with the former being a serving judge of the appropriate high court and the latter two being either serving or retired judges of any high court.
  • At present, no strength is prescribed for the board. And the executive government may on its own appoint people on the board who may not even be serving/retired high court judges, though they have to be “qualified” for the job.
  • Other recommendations:
  • A Constitution Bench of the Supreme Court in December 1981 by a majority judgment in “AK Roy vs. Union of India” ruled that as the Act required the executive government to issue the requisite notification so as to appoint dates for commencement of different sections of the Act.
  • The National Commission to Review the Working of the Constitution (NCRWC), in its final report of March 2002,  had also strongly recommended its immediate enforcement. It even mooted a suggestion for incorporating explicitly that the maximum period of preventive detention should not exceed six months in the amended Article 22.