Safeguard Against Arbitrary Arrest and Detention- Article 22

Introduction

India is the largest democracy in the world and owing to its status it is important that its constitution uphold the basic essence of democracy as a whole. The constitution does so by protecting the most basic civic and human liberties of its citizens in the form of the fundamental rights as enshrined in Part III of the Indian Constitution.

One such fundamental right which forms an integral part of the right to freedom is Article 22 of the Indian constitution which ensures all persons protection against arrest and detention in certain cases. Therefore, this fundamental right is available to both citizens and non-citizens just the same against any arrest or detention made against them by a capricious or arbitrary exercise of power.

The importance of the article as an indispensable part of the fundamental rights can be seen by the presence of this right in the International Covenant on Civil and Political Rights in the form of Article 9(1) of the covenant and the Universal Declaration of Human Rights in the form of article 9 of the declaration, both of which highlight the rights and safeguards of an individual against any form of arbitrary arrest and detention made against him by any type of executive or non-judicial power. The international recognition of this right makes it an important and basic feature in the chapter of human liberties and its safeguards.

Rights of arrested persons under ordinary law

Clauses (1) and (2) of article 22 guarantee four rights for a person who is arrested for any offense under ordinary law. These rights are available to both citizens and non-citizens except for the persons arrested and detained under the preventive detention laws who are covered by clauses 4 to 7 of the article.

The following are the basic rights guaranteed to the qualified persons under clauses (1) and (2):

Right to be informed of the grounds of arrest

Article 22(1) states that every arrested person who is detained in authoritative custody shall have the right to be informed of the grounds on which such an arrest is made against him. Every person who is arrested and detained in the custody of any authorised authority has the right to be informed of the reasons so as to facilitate him to make an application for bail or file a writ of habeas corpus.

This is important as it also allows the person arrested to prepare his defence with a view to enable him to represent himself lawfully. The clause is in the nature of a directive to the arresting authority to reveal the grounds of the arrest to the person.

The court in the case of Tarapada De v. State of West Bengal[1] held that the words “as soon as may be” used in the article means as nearly as is reasonable in the circumstances of a particular case. If the grounds of the arrest are delayed to be informed then it must be justified by reason.

Therefore, the arrested person must be informed of the grounds as a matter of right.

Right to be defended by a lawyer of his own choice

Article 22(1) gives an arrested person the right to consult or be defended by a legal practitioner or a lawyer of his own choice with the objective to represent himself before the court. Prior to Maneka Gandhi’s case the view was that the court was not bound to provide the help of a lawyer unless a request was made. But after the ruling of the Supreme Court in Maneka Gandhi’s[2] case and a series of cases following that case, it is clear that the courts will be bound to provide the assistance of a lawyer arrested under ordinary law also.

In the case of Mohammed Amir Kasab alias Abu Mujahid v. State of Maharashtra[3] the arrested person was a Pakistani who was offered the services of a lawyer upon his arrest as per the article. But having refused the same and the services of any Indian lawyer he sought a lawyer from his home country. Thereafter he again made a request for a lawyer upon being denied help from his home country which he was provided immediately. Therefore, his constitutional right was upheld under article 22(1).

Resolution of the bar council not to defend some persons in criminal cases-

In the case of A.S.Mohammed Rafi v. State of Tamil Nadu[4] the bar association of Coimbatore had passed a resolution that no member of the Coimbatore bar should defend the arrested policeman in a case. The Supreme Court in this case held that the resolutions of several bar associations throughout the country that they will not defend a particular person or persons in a particular criminal case are wholly illegal, against all traditions of the bar, and against professional ethics.

Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious, or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him.[5]

Right to be produced before a magistrate

Article 22(2) strikes the right balance between the interest of justice and the arrested person by giving him the right of being presented as a matter of legal compulsion before the court of the nearest magistrate within twenty-four hours of such arrest.

The article also keeps in view the realistic aspects of things by excluding the time required for conveyance from the place of arrest to the magistrate to make it more effective and applicable in the social scene.  Therefore, every arrested person has the right to be presented before the magistrate within 24 hours of his arrest as a matter of his fundamental right.

No detention beyond 24 hours except by an order of a magistrate

Article 22(2) safeguards the arrested person from the viciousness of the police by giving him the right of not being allowed to be kept in their custody beyond the stated limit except with prior permission or under the authority of the magistrate. If the arrested person has to be kept in custody beyond the limit then he shall be kept in judicial custody and not police custody.

The expression “arrest and detention” in article 22 (2) does not apply to a person arrested under a warrant but to a person arrested by an executive or non-judicial order for an accusation of a crime, quasi-crime nature, or some act prejudiced to the security of the state. The judicial arrests are not included to fulfill the absence of judicial mind in case of executive arrests which is already present in these arrests.

In the case of State of Punjab v. Ajaib Singh and Another[6] it was held that the Abducted Person (Recovery and Restoration) Act 1949 under which an abducted person could be arrested and delivered to the officer-in-charge of the nearest camp as valid by the reason that the said arrest does not constitute the “arrest and detention” because the person was not accused of a criminal offense.

Exceptions

Article 22(3) provides for the exceptions in the applicability of the provisions of article 22 (1) and (2). The safeguards provided under the above two clauses are not available to these persons as a matter of exception:

(a)A person who is an enemy alien for the time being

(b)A person who has been arrested and detained under the laws of preventive detention

An enemy alien may however seek the protection of Articles 22 (4) and (5) when he is arrested under the preventive detention laws but subject to the law passed by the parliament. The second category exception is given to make room for the special arrest made under laws of preventive detention the rights of whose arrest is given in the latter part of the article.

Preventive Detention Laws

Meaning: Article 22(4) to (7) covers the provisions regarding the procedure which is to be followed when a person is arrested and detained under any law of preventive detention. There is no authorized definition of preventive detention in Indian law but it is defined in contra-distinction to the word ‘punitive’.

While the objective of punitive laws is to punish a person who has already committed an offence the objective of preventive detention is not to punish a person who has already done something but to intercept or prevent him from doing something which may be reasonably suspected of harming the society or endangering the security of the government.

Necessity: Though the concept of preventive detention laws is considered an anti-democratic concept it still finds its place in the constitution of India as opposed to other countries like the United States or the UK. The necessity of this provision was highlighted by Patanjali Shastri, in the case of A.K.Gopalan v. State of Madras[7] as a sinister feature to prevent the abuse of the freedom provided by the constitution by anti-social and subversive elements which pose a risk to the democracy and integrity of the Indian republic.

History: The history of this law can be studied through various acts which were passed by the legislator during the course of its timeless existence:

• Preventive Detention Act 1950: The act was a temporary measure that was passed to give the central and the state government to detain a person under this law who possess a risk which is prejudiced to the security of India, defence of India, its relations with other nations, maintenance of public order and maintenance of services and essentials which are necessary for the community. Destined to lapse on 1^st April 1951 the act lapsed on December 31^st, 1969.
• Maintenance of Internal Security Act, 1971: The Preventive Detention Law was revived in the form of the Maintenance of Internal Security Act, 1971(MISA) in less than two years after the lapse of the previous act.
• Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980: MISA was repealed in 1978. But in less than two years the preventive detention law was revived in the form of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. The act was enacted with the objective to curb black marketing and hoarding of essential commodities.
• National Securities Act, 1982: The president passed the National Security Ordinance in 1980 which later on replaced the act, providing for preventive detention of persons responsible for inciting and initiating communal or caste riots which pose a serious risk to the security of the state. In the case of A.K.Roy v. Union of India [8], the Supreme Court upheld the validity of this act and refused the notion of it being vague or arbitrary in nature.
• Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA): The act was enacted with the objective to curb terrorism in the country, and the view of the same granted sweeping powers to the State Governments. There was widespread misuse of these powers and to curb the same the Supreme Court in the case of Kartar Singh v. State of Punjab [9]limited the scope of its interpretation.

Constitutional safeguards against the laws of preventive detention

Though the constitution has inculcated the preventive detention laws against the generic democratic notions it has also balanced it to reduce the harshness and arbitrary service of these laws. The constitution has provided safeguards by placing importance on the legislative powers conferred on the legislature. This is also one of the reasons why article 22 has been included in the chapter on guaranteed rights. Article 22 (4) to (7) provides the following safeguards to a person arrested and detained under the laws of preventive detention:

Review by the advisory board

Prior to the Constitution (44th amendment) Act, 1978–Article 22(4) (a) provided that no person can be detained for a period of more than three months under the preventive detention law unless an advisory board constituted of a person who is or had been qualified to be a High Court judge has before the term of three months have expired given their opinion that the cause of the detention is justified.

If the advisory board holds the detention unjustified then the government is bound to revoke the order and in a parallel scenario, the detaining authority has the right to decide the period of detention.

But in the latter case, the detention cannot extend for an indefinite period and can only be up to the maximum period prescribed by any law passed by the parliament for that class of detenu under sub-clause (b) of clause (7).

Under clause 7(a) any law providing for the detention longer than three months without the prior approval of the advisory board needs to specify the class or classes of detenu it applies to and the circumstances of such applicability. The procedure of detention under clause 4 is subject to the provisions of clause 7 which also provides the inquiry procedure of the advisory board.

Since the amendment has yet to be enforced the above provisions still apply. The amendment aimed to change the maximum period of detention without the reference of the advisory board from 3 to 2 months, changed the composition of the advisory board to a chairman and two members appointed upon the recommendation of the Chief Justice of the appropriate high court and abolished clause 7(a) that is the power of the parliament to make laws for detention beyond three months without reference of the advisory board.

Communication of the grounds of detention to the detenu

Article 22(5) gives the detenu two basic rights:

(a)The authority making the detention must as soon as may be furnished the grounds which led to the subjective satisfaction of the detaining authority to detain that person.

(b)The authority must give the detenu the earliest opportunity of representation by giving him sufficient particulars to enable him to do the same.

In the case of Kubic Darusz v. Union of India[10] the court held that merely explaining the grounds verbally without giving it in writing in a language understood by him where the detenu does not know good English does not serve the purpose of article 22(5) and hence it is important for the communication to be clear and easily understandable by the detenu to make it a valid communication.

The grounds supplied to the detenu must also not be vague, irrelevant and non-existence the presence of any of the above would vitiate the order of detention.

In the case of Subhash Popatlal Dave v. Union of India[11] it was held that under clause 5 the grounds of detention are to be served to the detenu after his detention. Therefore, the State is under no obligation to provide the grounds prior to the arrest and detention.

In the case of Huidrom Konungjao Singh v. State of Manipur[12], it was held that the State also has the authority to pass an order of detention against a person already in custody provided that upon the challenge of such an order the state shall prove that it was fully aware of the fact that the detenu was already in custody and there are reasonable grounds to believe prejudice.

Detenu’s right to representation

The absence of any constitutional provision regarding the detenu’s right of representation prior to the order of detention makes it obvious that the detenu’s representation is considered after the confirmation of the order of detention. The detenu must be furnished with the basic facts, material, and all the documents which were considered by the detaining authority in making the decision of detention.

These shall be given to the detenu as soon as possible to allow him the opportunity of earliest representation and to keep a check on the arbitrary and capricious exercise of power by the detaining authority.

The detaining authority is under a procedural compulsion to inform the detenu while serving the order of detention of his right to make a representation and also to be heard by the advisory board and the failure to do so would vitiate the detention.

In the case of Prem Lata Sharma v. District Magistrate, Mathura[13] the court vitiated the detention order when the detaining authority refused to send the representation of the detenu to the central government on the grounds that this amounts to the infringement of the detenu’s right under clause 5 of article 22.

Though there is no specified time limit for the disposal of the representation of the detenu by the central government, it is bound to consider it as expeditiously as possible and any unnecessary delay in the same will render the detention illegal.

During a period of emergency, the President has the right to suspend the fundamental right of people and the detenu has no locus standi to question the grounds or reasons of his detention.

Exception

Article 22(6) provides for exceptions to Article 22(5). Under clause 6 if the act of furnishing the detenu with the facts of his detention is against the interest of the public then the detain authority is at the liberty of refraining from furnishing the same.

In the case of Puran Lal Lakhan Lal v. Union of India [14], it was held that both the obligation to furnish the particulars and the duty to consider whether the disclosure of facts is against the public interest are vested in the detaining authority and no one else.

Subjective satisfaction of detaining authority

The preventive detention laws make it clear that the power of detention is to be exercised to the subjective satisfaction of the detaining authority. The courts normally do not interfere with the decisions of the detaining authority whether the grounds are sufficient or not. But this does not mean that it is completely immune to judicial scrutiny.

The courts have justified the application of judicial mind by saying that subjective satisfaction is precedent to the exercise of a power of the Executive and they can examine whether the authority has arrived at the requisite satisfaction for the order of detention. This is done to ensure that the exercise of power is not bad. The subjective satisfaction of the detaining authority can be challenged on the grounds of mala fide, vagueness, irrelevant or non-existence or mechanical application of mind.

In the case of A.D.M. Jabalpur v. S. Shukla[15] the court held that even if the detenu makes out a prima facie case that the detention was mala fide the affidavit of the authority will be the answer and the inquiry will be closed. The courts cannot insist on the production of the file or hold that the case of the detenu stands unrebutted by the reason of non-disclosure of grounds of arrest.

The effect of the case was that the courts were barred from examining the question of mala fide of the order of detention or ultra vires character of the order of detention. This decision was overturned in the case of A.K.Gopalan v. State of Madras.[16]

Article 22 is not a complete code

At one time article 22 was considered a complete code in itself the validity of the preventive detention laws was decided within the four corners of this code.

In the case of A.K.Gopalan v. State of Madras[17], it was held that a detenu cannot claim the freedom guarantee under article 19(1)(d)if it is infringed by the detention and that the validity of the detention shall not be tested by the reasonableness of the restriction imposed on the freedom to a movement nor on the ground that his personal liberty is infringed under article 21 otherwise than according to the procedure established by law. This has now been shown wrong in the case of R.C.Cooper v. Union of India[18]

In the case of Maneka Gandhi v. Union of India[19], it was held that the law relating to preventive detention must not only satisfy the requirements of Article 22 but also the requirements of Article 21 of the Constitution. In other words the procedure prescribed under the preventive detention law must be reasonable and just and fair under Articles 14, 19, and 21 of the Constitution.

Conclusion

It is high time the legislators recognise the overriding arbitrariness and corruption in the use and issue of the orders of preventive detention. Though the courts feel the requirement of the same in the constitution it is time we establish stricter and stable laws for the proper and efficient application of these laws in the societal setup. Article 22 can pave the way but we still have a long road to walk. Under the current societal setup where the crimes behind the bars have increased with the inhuman treatment of the people arrested and detained in police custody, it is time for us to go beyond this article and put in place more balanced and better checks.

References:

[1] AIR 1951 SC 174

[2] Maneka Gandhi v. Union of India, AIR 1978 SC 597

[3] AIR 2012 SC 3565

[4] AIR 2011 SC 308

[5] INDIAN KANOON, https://indiankanoon.org/doc/1355688/, last viewed on 9^th October 2022.

[6] 1953 AIR 10, 1953 SCR 254

[7] AIR 1950 SC 27

[8] AIR 1982 SC 710

[9] (1994) 3 SCC 569

[10] (1990) 1 SCC 568

[11] AIR 2012 SC 3370

[12] AIR 2012 SC 2002

[13] AIR 1998 SC 2212

[14] AIR 1958 SC 163

[15] AIR 1976 SC 1207

[16] AIR 1950 SC 27

[17] Ibid note 16

[18] AIR 1970 SC 564

[19] AIR 1978 SC 597

This article has been submitted by Krithika Mittal, a student at Lovely Professional University, Punjab.