Article 22 of the Constitution of India

Article 22 of the Constitution of India

This article is written by Vikranta Pradeep Barsay a student of National Law University and Judicial Academy, Assam. In this article, he has dealt with the concept of article 22 of the constitution of India.

Introduction

The Constituent Assembly first convened in the Central Hall of the Parliament House on December 09, 1946, under the presidential aegis of Shri S. Sinha, wherein Shri Acharya Kripalani addressed 389 parliamentarians from not only the Provincial Legislative Assemblies (two hundred and ninety-two) along with the Chief Commissioners’ Provinces (four) but also the Indian Princely States (ninety-three) at 11 A.M.[1]

Former India’s representative to the United Nations Security Council (1950-1952) and the Judge of the International Court of Justice (1952-1953), Sir Benegal Narsing Rau was chosen as the Constitutional Advisor to the Constituent Assembly, wherein he travelled to countries like the United States of America, Ireland, Canada and the United Kingdom where he conversed with legal scholars, jurists, and judges about their legal and judicial structure and composition.[2]

It was decided that Sir B. N. Rau would collate his experiences from otherworldly constitutions with the reports and discussions of the Constituent Assembly into a draft version of the Constitution of India, wherein the Draft Constitution will be scrutinized by a seven-member Drafting Committee, headed by Dr B. R. Ambedkar.[3] The Drafting Committee had its first cardinal meeting on August 30, 1947.

Tej Bahadur Sapru led a committee of twenty-nine members to make the Sapru Report in 1945 that annotated the principle of justiciable Fundamental Rights; this report formed the basis of an Advisory Committee of sixty-four members for the protection of Fundamental Rights, Rights of Minorities and the Governance of Tribal Areas under the chairmanship of Sardar Vallabhbhai Patel in January 1947.[4] It is worth noting that Shri Acharya Kripalani helmed a twelve-member subcommittee to discuss and draft the Fundamental Rights in the Constitution of India, who assembled for the first time on February 27, 1947.[5]

The aforementioned subcommittee drew inspirations from three sources: Bill of Rights, 1 England (1689), Bill of Rights, the United States of America (1789) and the Declaration of Rights of Man and the Citizen, France (1789), to form seven Fundamental Rights.[6] Shri Alladi Krishnaswamy Iyer and Dr K. M. Munshi posited to make the said Fundamental Rights protected and enforceable by the court of law, i.e. the Fundamental Rights must be justiciable.[7] In the company of other discussions, it became apparent that although the citizens in post-independence India must be gifted with full and absolute liberty that cannot be annulled at the whims of the government, Shri Alladi Krishnaswamy Iyer boded that the utopian idea of absolute liberty will be torpedoed if the criminals and convicted individuals are not imprisoned for their crimes.[8]

Sardar Vallabhbhai Patel presented the Interim Report on Fundamental Rights on April 29, 1947, wherein the bedrock of the modern-day Article 22 of the Indian Constitution was laid with four primordial clauses:

  1. A citizen of India can be deprived of his liberty if and only if the due process of the law is followed.
  2. The conviction of an individual for an act is valid if and only if the individual has violated a law in force at the time of the commission of the act.
  3. A criminal cannot self-incriminate himself.
  4. The individual cannot be convicted for the same offence twice (no double-jeopardy).[9]

It is worth noting that Dr B. R. Ambedkar elucidated the true meaning of the phrase ‘due process of the law,’ wherein the arrestee would be informed within the first twenty-four hours of the arrest not only the grounds of the arrest but also the authority under which the said arrest is being pursued.[10] A quick look at the Constituent Assembly Debates will reveal the raillery surrounding the aforementioned phrase; additionally, the idea that the Fundamental freedom of liberty and life of a citizen of India can be revoked only by the due process of the law caused a stir among International jurists, wherein Justice Frankfurter of the Supreme Court of the United States of America advised Sir Benegal Narsing Rau against adopting the aforementioned provision.[11] With time, the parliamentarians warped the due process of law for procedure established by law; this was momentarily accepted by Dr B. R. Ambedkar.[12]

Dr K. M. Munshi reignited the debate in 1948 when he tried to revert the aforementioned provision to its original format, wherein the scuffle between the Legislative and the Judiciary rested on two major contentions: a) The phrase of ‘procedure established by law’ allowed the Parliament to make any laws that allow either the arrest or the detention of the individual; this creates a situation where the arrest or detention of an individual rests at the whims of the Parliament[13] and b) The inclusion of Preventive Detention in the Concurrent List allowed not only the Union Parliament but also the State Legislative Assembly to pass laws on Preventive Detention without any due process of law.[14]

An attempt to reintroduce the protection of due process of law was made by Dr B. R. Ambedkar on September 15, 1949, wherein he introduced Clause A to the incumbent Article 15 along with the numerous suggestions from the members of the Constituent Assembly; such as the arrestee or detainee cannot be detained for more than twenty-four hours without being bought before an authoritative Magistrate, Every arrestee or detainee must be provided with a legal defender for representation in the court of law.[15]

It is worth noting that the Constituent Assembly decided to drop the Fundamental Right to Legal Assistance was chucked out due to the fear that the inclusion of lawyers in the realm of Preventive Detention will attract the antecedent’s deficits of a slackened Criminal Justice System into the noticeable expeditious Preventive Detention.[16]

In a nutshell, the framers of the Constitution of India champion the idea that the Fundamental Rights within the Constitution of India must truly liberalize the citizens of India from their colonial and repressive past while protecting their present and future against any despotic actions of any apparatus of the Social Democracy: the Legislative, the Executive and the Judiciary,[17] i.e. the Fundamental Rights correct the Fundamental Wrongs of the British Raj in India.[18]

In conclusion, Article 22 (former Article 15, Clause A in the Draft Constitution) of the Constitution of India is to protect the extent of curtailment of the Fundamental Right to Life and Personal Liberty that is enshrined under Article 21[19] while upholding the state’s desire of a quick and speedy arrest and detention of individuals to maintain the public law and order.[20]

Introduction: Article 22

The seven clauses of Article 22 is broadly divided into two categories:

  1. Clause 1 and Clause 2 deals with the procedure of punitive detention of an individual who has committed a crime in violation of Ordinary law.[21]
  2. Clauses 4 through 7 elucidate the nuances of Preventive Detention, which deals with the arrest of an individual on reasonable suspicion that the said individual will commit some crime;[22] additionally, the two-judge divisional bench (Justice D. Sen and Justice B. Sarma) in the case of Samir Das & Anr. v. The District Magistrate & Ors. (1975) CriLJ 315, held that punitive detention is precautionary detention to prevent an individual from committing an offence without any official charge.

The latter half of Article 22 illustrates the minimum procedural requirements that must be satisfied by any legislation of either the Union Parliament or the State Legislative Assembly for the deprivation of an individual’s personal liberty under the aegis of Preventive Detention.[23]

 

Punitive Detention

Clause 1 of Article 22 of the Constitution of India delineates two major provisions; firstly, the fundamental right of every arrestee to know the grounds of its arrest or detention, secondly, the fundamental right of every arrestee to have a legal representation of choice which includes not only legal consultation but also legal defense.

Chief Justice M. Venkatachalliah expounded on Clause 1 in the case of Joginder Kumar v. The State of Uttar Pradesh (1994) 4 SCC 260, wherein he held that even if the arrest under the power and authority of a law enforcement agency is lawful, it should be pursued if and only if the preliminary investigation of the alleged complaint reasonably satisfies the law enforcement agency about the genuineness of the complaint, also, the law enforcement agency must justify the grounds of the arrest to the arrestee.

The leading case that bolsters Clause 1 is the case of Shri D. K. Basu & Anr. v. The State of Uttar Pradesh & Anr. (1997) 1 SCC 416, wherein the two-judge divisional bench (Justice K. Singh and Justice A. S. Anand) clutched two major guidelines: a) Any person who has an active interest in the welfare of the arrestee (inclusive of friends and relatives) has the right to be informed about the arrest and the subsequent place of custodial detention and b) The arrestee must sign an ‘Arrest Memo’ prepared by the on-scene police officer that mentions the reason, date and time of the arrest.

It is worth noting Section 50, Clause 1 of the Code of Criminal Procedure, 1973, upholds the aforementioned provision, wherein the arrestee is entitled to know the particulars of the crime for which the person is being arrested.

The 10th point given by the aforementioned two-judge divisional bench allows the arrestee to consult a lawyer of their choice during the interrogation; this is enshrined within Clause 1 as the fundamental right of an arrestee to consult a legal practitioner. In the case of Hussainara Khatoon & Ors. v. The State of Bihar & Anr. (1979) 3 SCR 169, Justice P. N. Bhagwati highlighted a situation where an under-trial prisoner is placed behind bars for years at an end, wherein the detention time extends beyond the maximum number of years the said individual would have been awarded if found guilty for the offence by the court of law due to the financial constraints of the individual.

The court observed that it is the failure of the Criminal Justice System where the poverty of the individual keeps them from not only producing the designated bail amount but also acquiring a lawyer to represent them in a court of law. In the light of non-speedy disposal of cases, the Supreme Court called the aforementioned plight of the poor under-trial prisoners as a violation of their Fundamental Right of Life and Personal Liberty under Article 21 of the Indian Constitution, wherein the prisoners are unnecessarily detained for long durations.[24]

It is worth mentioning that a seven-judge constitutional bench in the case of Maneka Gandhi v. Union of India (1978) 2 SCR 621 opined that the procedure established by law under which the Fundamental Right of Life and Personal Liberty is being withheld by the state must be reasonable, fair and just. In the light of the aforementioned violation, the Supreme Court of India held that spending longer than the required time in prison while awaiting a trial without proper legal representation is not a reasonable procedure; additionally, the court of law directed the state to provide free legal aid at its own cost to the poor and deprived sections of the society.[25]

Although the case of Hussainara Khatoon & Ors. v. The State of Bihar & Anr. (1979) 3 SCR 169 highlights the constitutional right of getting a speedy trial, it expounds on the fundamentalism in provide free legal aid to the poor to truly champion Clause 1 of Article 22 of the Constitution of India, wherein legal representation must be made fundamentally available to all citizens of India.[26]

It is the absolute obligation of the Magistrate to provide a lawyer at the expense of the state to an unrepresented individual before the commencement of the trial, wherein it is the constitutional duty of the Magistrate and the state to provide a lawyer as soon as the arrestee is arrested even if the arrestee does not ask for legal representation in virtue of its either refusal or silence.[27]

Although Clause 1 of Article 22 of the Indian Constitution provides for the Fundamental Right of Legal Consultation and Defence, the lawyer cannot be present at every stage of the custodial interrogation while accosting the law enforcement officers.[28] A lawyer’s duties are limited to representing the arrestee in judicial proceedings (defence) and providing legal counsel in legal matters (ex: bail applications, legal consequences of certain confessions, etcetera); it does not include the duty to interfere in the interrogative questioning of the arrestee by the law enforcement agencies.[29]

Clause 2 of Article 22 elucidates that an arrestee must be produced before the nearest district Magistrate within twenty-four hours of the arrest, i.e. the period of custodial detention cannot extend beyond twenty-four hours without presenting the arrestee before the nearest district Magistrate.

One can postulate that the Code of Criminal Procedure, 1973 (CrPC, 1973) and the Indian Penal Code, 1860 (IPC, 1860) explicate the constitutional provisions to punish the misuse of power and authority to violate rights and freedoms of citizens of India that have been conferred by the Constitution of India.[30] Although Section 57 of the CrPC, 1973, strengthens the constitutional provision of not extending the custodial detention beyond twenty-four hours without a special order of the magistrate, the provision for extending the twenty-four period of punitive detention is not mentioned in the constitution.

Section 167, Clause 2, Sub-Clause B of the CrPC, 1973, allows the district Magistrate who has jurisdiction of the case to extend the period of custodial detention to fifteen days if and only if two pivotal conditions are met: a) The arrestee is produced before the jurisdictional district Magistrate whilst in punitive detention and b) If the investigation by the law enforcement agency is not complete within the first twenty-four hours of the arrest (Clause 1) and the not only the law enforcement agency (the police) but also the district Magistrate have well-founded, reasonable grounds to keep the arrestee in custodial detention (Clause 2). The former condition cements the fundamental right of an arrestee or a detainee to be produced before a district Magistrate; additionally, the latter condition bolsters Clause 2 of Article 22, wherein the district Magistrate has the sole authority to extend the punitive detention of an individual.

It is worth noting that a five-judge constitutional bench (Chief Justice M. P. Sastri, Justice S. R. Das, Justice B. K. Mukherjea, Justice V. Bose and Justice N. H. Bhagwati) held in the case of The State of Punjab v. Ajaib Singh & Anr. (1953) SCR 254 that the action of physically recovering an individual without any actual accusation of commission of a punitive offence of criminal or quasi-criminal nature, and handing the same individual to the custody of the nearest police-station does not come under the ambit of ‘arrest’ within Clause 1 and 2 of Article 22 of the Indian Constitution.

Chief Justice Y. V. Chandrachud dismantled Clause 2 of Article 22 in the case of A. K. Roy v. Union of India & Anr. (1982) 2 SCR 272 where he posited that an arrestee or a detainee under preventive custodial detention is denied the Fundamental Right of being defended by a legal practitioner of choice, i.e. Clause 3, Sub-Clause B revokes the Fundamental Right of Legal Representation under Clause 1.

An Alien Enemy is any individual that is either a subject of a foreign state that is at war with India or an Indian citizen that either voluntarily resides within or trades with the aforementioned state.[31] Sub-Clause A of Clause 3 bars an Alien Enemy from the provisions under Clause 1 and 2 of Article 22.

Preventive Detention: The Laws

Preventive Detention has a long history in India, wherein the provision was introduced by the British East India Company in the year, 1818, with the Bengal State Prisoners Regulation III where an individual can be detained indefinitely without a trial on the mere suspicion that the individual may commit a crime.[32] Preventive Detention stands on the idea that India’s peace, sovereignty and integral stability may suffer from external transgressions and internal imbalances even during the time of peace.[33]

Dr B. R. Ambedkar upheld the existence of Preventive Detention to safeguard the public order of the country from external transgressions and internal communal acts of violence, wherein the personal liberty of the individual is superseded by the ulterior interests of the state.[34] The United Kingdom resorts to Preventive Detention during war-time situations[35] while the United States of America calls Preventive Detention as unlawful, wherein the VI Amendment guarantees the citizens of the United States of America with a speedy, pubic trial, wherein an arrestee who hasn’t committed any criminal offence, cannot be detained in custody for a longer duration without a trial.[36]

Dr B. R. Ambedkar defended Preventive Detention in India during times of peace as a tool to curb any possible internal communal disturbances between the multi-ethnic and multi-religious communities that may impede the integrity of the nation.[37]

The Central Parliament and the State Legislative Assembly are empowered to make Preventive Detention laws under Schedule 7 (Article 246, Clause 1 of the Indian Constitution), Entry 9 and Schedule 7 (Article 246, Clause 3 of  the Indian Constitution), Entry 3 respectively for the Defence, Foreign Affairs, Security of India and the Security and Maintenance of Public Order respectively.

A discussion of Preventive Detention is incomplete without a mention of the National Security Act, 1980 (NSA, 1980). The said legislation borrows heavily from the defunct Preventive Detention Act, 1950, wherein the former allows the Central and State Government agencies to detain any individual for a maximum period of twelve months (extendible) if the agencies are reasonably convinced that the individual may act in disruption of Public Order and National Security.[38]

NSA, 1980

The legislation abrogates Clause 1 of Article 22 of the Constitution of India, wherein certain aspects of the arrest can be withheld from the arrestee if the state feels that the disclosure of the information is precarious to the public interest; additionally, the aforementioned Fundamental Right of Legal Representation (either consultation or defence) is revoked under the NSA, 1980.

Although the NSA, 1980, is criticized for its complete revocation of the ‘Rights of Detainees’ under Article 22 of the Constitution of India, the cake for the most criticized Preventive Detention legislation goes to the Terrorist and Disruptive Activities (Prevention0 Act, 1987 (TADA, 1987) that was an outcome of the assassination of Indira Gandhi in October, 1984. Although the legislation was meant to exist only for two years in the neighbouring states of the Punjab Insurgency, repeated extensions placed the act over twenty-three states and two union territories, wherein the legislation nullified various existing provisions in Indian law.[39]

TADA

The TADA, 1987, placed the burden of proof on the defendant, sustained the admission of custodial confessions made to senior law enforcement officers in the court of law, reneged the Right to Anticipatory Bail and impeded the procedures to secure bail.[40] In the ambit of Preventive Detention, the TADA, 1987, upheld the detention of one year without the scope of a trial while holding the arrestee in custodial detention for sixty days without being rendered in front of the nearest District Magistrate.[41] The championing of custodial confessions in the light of custodial torture owing to TADA, 1987, was critically criticized by national and international human rights institutions, wherein the legislation was scrapped in 1995.[42] The TADA, 1987, failed to achieve its anti-terrorism objectives since less than one per cent of the 76,000 arrestees between 1987 and 1994 under TADA, 1987, were truly convicted for the crime, i.e. TADA, 1987, became a tool for wrongful and arbitrary detention of individuals.[43] The vagueness of TADA, 1987, is similar to the definition of “anarchial and revolutionary activities” under the Rowlatt Act, 1919, wherein the British Raj could place any individual in Preventive Detention without not only the Right to Appeal but also the Right to Legal Counsel for the aforementioned activities of sedition and revolt for up to two years.[44]

POTA

The TADA, 1987, was succeeded with the Prevention of Terrorist Activities Act, 2002 (POTA, 2002) that was inspired by the attack on the World Trade Centre of the United States of America on September 11, 2001, wherein the National Democratic Alliance (NDA) led by Shri Atal Bihari Vajpayee advocated fervently for the imposition of a new anti-terror law to curb cross-border terrorism and internal insurgencies across India.[45] It is worth noting that the POTA, 2002, was the NDA-led government’s first major legislation after coming into power in 2001, wherein the legislation was passed with a majority of 425 votes against dissent of 296 votes.[46]

Although the POTA, 2002, mimicked the TADA, 1987, in its provisions, it took a more democratic approach, wherein not only the appeal either for a bail petition or against the decision of a POTA special court can be done with the jurisdictional High Court (TADA, 1987, eliminated the High Court in the process of making appeals, wherein an appeal against a court subordinate to the High Court was made directly with the Supreme Court of India[47]) but also the custodial confession must be re-recorded in the presence of a District Magistrate within forty-eight hours of the custodial confession (which is admissible in the court of law under POTA, 2002) by the arrestee.[48]

Unlike TADA, 1987, POTA, 2002, punished the law enforcement officers for supposed misuse and abuse of authority on the arrestee whilst the latter is in custodial detention.[49] Although POTA, 2002, can be treated as a humane version of TADA, 1987, it suffered from a short-run of only two years due to its vague and unclear definition of a ‘terrorist,’ wherein Section 3, Clause 3 of the POTA, 2002, imprisons any person who either advocates, incites or abets, advises the commission of a terrorist act for a period of five years to life. It has been observed that POTA, 2002, thrives on its vague definitions to imprison anyone who merely talks/ opines about a terrorist faction; this was found to violate the Fundamental Freedom of Speech and Expression.[50] The eight-month-long operation of the POTA, 2002, in seven states, saw 940 arrestees.[51]

It is worth mentioning that POTA, 2002, aggravated the discrimination against minority communities in certain states like Gujarat, Jharkhand and Uttar Pradesh, wherein vague definitions within the legislation gave rise to arbitrary arrests of Muslims. The Modi-led government in the state of Gujarat arrested 123 Muslims under the POTA, 2002, for allegedly setting fire to passenger-coach S6 on February 27, 2002, at Godhra where fifty-nine people perished in the flames.[52] Following the incident that was proved by the Indian investigating agencies to be an accidental fire and not a Muslim mob-induced fire in 2015,[53] a Hindu-Muslim riot broke out on February 28, 2002, wherein Hindu extremists killed nearly 1,000 Muslims and destroyed 360 Mosques in the state of Gujarat.[54]

Although the Hindu extremists fulfil the prerequisites for the POTA, 2002, law enforcement agencies in Ahmedabad were instructed to not arrest any Hindu by the then Chief Minister Narendra Modi; additionally, the police officers in other parts of Gujarat dismissed the arrest of a myriad Hindus under POTA, 2002, due to lack of supposed evidence even in the face of eye-witness testimony.[55]

Chief Minister Narendra Modi justified the non-implication of POTA, 2002, as it being a “spontaneous reaction” to the train-incident and not a pre-meditated terrorist attack; however, the law enforcement agencies in Gujarat continued arresting Muslims after the riot under POTA, 2002, on the grounds that Muslims had orchestrated pre-meditated conspiracy to terrorize a specific section of the community.[56] POTA, 2002, was repealed in the year, 2004 due to its communally-inspired arbitrary arrests.[57]

UAPA

The Unlawful Activities (Prevention) Act, 1967 (UAPA, 1967) has survived the tests of time due to the absence of a temporary 12-month clause akin to the Preventive Detention Act, 1950, that was introduced into the parliament following the China-India conflict in 1962 and the state elections in the state of Tamil Nadu where DMK’s manifesto included a breakaway from India.[58] The original legislation sought to put reasonable restrictions on the Fundamental Freedoms of Speech, Expressions and Forming Associations, wherein any association that promoted the secession from India would be banned by declaring them unlawful under Section 2, Clause O, Sub-Clause 1 of the UAPA, 1967.

UAPA, 1967, looks similar to its sister legislations where the provision of bail was very difficult to obtain for the detainee under UAPA, 1967, wherein Section 43D, Clause 5 bars the bail of any detainee whose basic material pieces of evidence of the terror-related offence appear to be prima facie true on reasonable grounds; additionally, the arrestee could be in custodial detention for six months without any filing of the charge sheet.[59] The dissolved provisions of the POTA, 2002, was absorbed by the UAPA, 1967, wherein the definitions of terrorism and terrorist organizations were included in the ambit of unlawful activities with the amendment of the UAPA, 1967, in 2004; this makes the UAPA, 1967, as India’s premier anti-terrorism legislation.[60]

The 2012 amendment to the legislation posits any activity as unlawful that threatens the financial and economic security of India.[61] The lack of a sunset clause (pre-timed expiration) akin to TADA, 1987, and POTA, 2002, in the UAPA, 1967, allows the state to continue the perpetration of the draconian provision of labelling any activity that is inconvenient to the incumbent government as unlawful until the Central Parliament repeals the legislation.[62]

The UAPA, 1967, construes an offence on three grounds:

  1. Section 15 of the UAPA, 1967, defines a terrorist act as any act that either directly threatens or tries to threaten unity, sovereignty, integrity, economic security by terrorizing either an individual or a community of people in India. It is worth noting that the recent amendment of the UAPA, 1967, allows the government to label not only terrorist organizations and terrorist gangs but also an individual as an unlawful terrorist (Section 2, Clause G, Sub-Clause 2).
  2. The membership to an unlawful association or organization is punishable with an imprisonment term of up to two years under Section 10 of the UAPA, 1967, wherein the continued membership of an unlawful association (Section 10, Clause A, Sub-Clause 1), participation in the meetings of the unlawful association (Sub-Clause 2) is unlawful under the act. A remote support of the ideology of the association has been enough for the law enforcement agencies to detain such persons who possess books, pamphlets, documents of the said association.[63]

In the case of Arup Bhuyan v. The State of Assam (2011) CR.A.No.889/ 2007, the two-judge divisional bench of the Supreme Court of India (Justice Markandey Katju and Justice Gyan Sudha Misra) held that the mere membership of an unlawful association is not a criminal offence unless the member partakes in violence to disturb the public order.

  1. The funding of an unlawful association by means of money, securities and credits are deemed as unlawful under Section 7 of the UAPA, 1967.

It is worth understanding that Section 2, Clause O, Sub-Clause 2 has the vague inclusion of any act that merely criticizes or questions with the intention of disrupting the territorial integrity and the sovereignty of India as an unlawful activity; this open-ended provision allows the government to tag any academic criticism, activism, political protest, news reporting, judicial-political commentary as an unlawful activity that disrupt the sovereignty and integrity of the nation.[64]

Additionally, the ambiguous provision under Sub-Clause 3 to tag any activity as unlawful that incites a feeling of disaffection against India, leads to a situation where the persons are detained on flimsy grounds for a non-bailable period of ninety days in judicial custody (Section 43D, Clause 2, Sub-Clause A) that can be extended for 180 days  in police custody if the investigating police officer requests such an extension for the purpose of conducting investigation via an affidavit (Sub-Clause B).

In a nutshell, the UAPA, 1967, is India’s foremost Preventive Detention law that has undergone changes to include terrorist activities into the ambit of unlawful activities to curtail the Fundamental Freedoms of Speech, Expression, Peaceful Assembly and Forming Unions and Associations; this allows the incumbent government to put any inconvenient individual in non-bailable custodial detention whose activities do not align with the ideology of the government that may or may not “terrorist” in nature in the truest sense of the term.[65]

Also Read: AK GOPALAN vs STATE OF MADRAS

Preventive Detention: The Safeguards

The aforementioned section elucidates the Preventive Detention statutes in not only the pre-independence British Empire but also the post-independence India, wherein Unlawful Activities (Prevention) Act, 1967, and the National Security Act, 1980, are the only Preventive Detention laws in effect in India. Shri Mahavir Tyagi was a staunch opposer of Dr B. R. Ambedkar’s idea of Preventive Detention in post-independence India, wherein he believed that the future governments may use it to detain any instrument that opposes the government  not only in thought but also in action.[66]

In the case of T. A. Abdul Rahman v. The State of Kerala & Ors. (1989) 3 SCR 945, Justice S. R. Pandian held that the unsatisfactory and unexplained explanation for the delay between the prejudicial activity of the disputed detainee and the actual order of Preventive Detention by the detaining authority renders the subsequent detention as liable to be quashed by a court of law; additionally, the unsatisfactory and unexplained delay between the order of the Preventive Detention against the prejudicial activity of an individual and the actual date of arresting the said individual shows that the detaining authority was not subjective satisfied with the detention of the disputed individual, i.e. the order of Preventive Detention can be quelled by the court of law.[67]

Article 22, Clause 4 through 7, deal with the safeguards associated with the ills of Preventive Detention. Clause 4 enjoins that a statute of Preventive Detention cannot detain an arrestee in custodial detention for a period greater than three months, wherein the period of detention can be extended beyond three months at the advice of an Advisory Body. Clause 4, Sub-Clause A discloses that the said Advisory Board must consist entirely of Judges of the High Court where the Judges may be current, quondam or qualified for appointment. The Advisory Review must convene before the expiry of the period of detention with a membership of at least three.[68] The provision of three months in Preventive Detention is akin to the twenty-hour custodial provision in Punitive Detention.[69]

It is worth mentioning that the consent of the Advisory Board is essential to continue the Preventive Detention beyond the period of three months; additionally, an individual cannot be detained indefinitely.[70] The continuance of Preventive Detention with infringement of personal liberty must fulfil the following threefold conditions given by Justice D. Y. Chandrachud in the case of Justice K. S. Puttaswamy (Retd) v. Union of India & Ors. (2017) CWP. 494/ 2012:

  1. The continued invasion must have legal standing, either in the Constitution of India or in the legislations of the Central Parliament and the State Legislative Assembly.
  2. There should be a legitimate need of extending the period of detention.
  3. The objective behind the continuance of Preventive Detention of an individual must be proportional to the means adopted to restrain the personal liberty of the said individual, i.e. If the Advisory Board decides that to extend the period of detention beyond three months (the means) to unreasonably restrain a person, then the doctrine of proportionality falls apart.

If any Preventive Detention legislation of either the Central Parliament or the State Legislative Assembly has no provision for an Advisory Board as stated Clause 4, Sub-Clause A of the Indian Constitution, then the said legislation will become ultra vires.[71]

Clause 7 of Article 22 vetoes Clause 4 in three cardinal ways:

  1. Sub-Clause 1 of Clause 7 gives blanket authority to the Central Parliament to create, define and delineate certain circumstances and situations within existing and novel Preventive Detention legislations where the period of detention can smoothly exceed the bar of three months without the consent of any Advisory Board.
  2. Sub-Clause 2 allows the Central Parliament to set the maximum bar for the period of detention within existing and novel Preventive Detention legislations.
  3. Sub-Clause 3 brooks the Central Parliament to change the procedure of inquiry undertaken by the said Advisory Board.

A quick read of Section 7 tells that it single-handedly abrogates the constitutional safeguards for Prevention Detention under Article 22 of the Indian Constitution. Justice P. N. Bhagwati in the case of Khudiram Das v. The State of West Bengal & Ors. (1974) 2 SCR 832 and Justice B. K. Mukherjea in the case of Shibban Lal Saksena v. The State of Uttar Pradesh & Ors. (1953) SCR 418 reaffirmed the notion that the court of law is not a competent authority to question either the reality or the intention of the grounds and the order of the Preventive Detention, i.e. the court of law is not authorized to conjecture the grounds of detention, which is reserved solely with the detaining authority.

In a nutshell, the court of law cannot inquire into the reality of the grounds, character and validity of a detainment under Preventive Detention; this is the constitutional authority of the detaining body alone.[72] It is worth understanding that a seven-judge constitutional bench (Justice K. J. Shetty, Justice H. R. Khanna, Justice B. K. Mukherjea, Justice Y. V. Chandrachud, Justice K. S. Hegde Justice A. N. Ray and Justice P. J. Reddy) in the case of Sambhu Nath Sarkar v. The State of West Bengal & Ors. (1973) 1 SCR 1 that Clause 7 of Article 22 does not give the Central Parliament an alternative, independent authority to make Preventive Detention legislations that entirely forfeit the required consent of an Advisory Board.

The bench held that any Preventive Detention legislation under Clause 7, Sub-Clause A and B by the Central Parliament must clearly expound on the circumstances and the category of cases that entail an extension of the three-month Preventive Detention under Clause 4, Sub-Clause A without the consent of the aforementioned Advisory Board; additionally, the bench of the Supreme Court of India held that the provisions under Clause 7 are available if and only if the parliamentary legislation contains exceptional circumstances and special cases where the consent of the Advisory Board to extend the period of detention can be avoided.

Clause 5 of Article 22 in Preventive Detention is mirrored to Clause 1 in Punitive Detention, wherein a detainee under Preventive Detention has the constitutional right to clearly know the grounds on which it has been arrested as soon as the arrest has been made. All the material facts and information that reasonably satisfy and inspire the detaining authority to detain the said individual under Preventive Detention, must be provided by the aforementioned detaining authority to the detainee immediately following the arrest.[73] A five-judge constitutional bench (Chief Justice B. P. Sinha, Justice K. Subbarao, Justice N. R. Ayyangar, Justice J. R. Mudholkar and Justice T. L. V. Aiyyar) held in the case of Harikisan v. The State of Maharahstra & Ors. (1962) 2 SCR 918 that the grounds of the detention must be explained in a language that is comprehensible to the detainee while being clear and unambiguous.

Clause 5 champions the Fundamental Right of Legal Representation, wherein the material grounds of the detention is communicated to the detainee at the earliest to provide the detainee with the earliest opportunity to make a representation against the Preventive Detention. In the case of Francis Coralie Mullin v. The Administrator, Union Territory of Delhi & Ors. (1981) 2 SCR 516, Justice P. N. Bhagwati reckoned the validity of the representation made by a counsel on behalf of the detainee, i.e. the detainee has the constitutional right to seek the counsel of a legal practitioner; additionally, Justice P. N. Bhagwati upheld the constitutional right of legal counsel within the broader interpretation of the Fundamental Right   to Life with dignity under Article 21 of the Indian Constitution.

Although Clause 5 mentions that legal representation must be given to the detainee at the earliest following the prompt communication of the material grounds and facts of the Preventive Detention to the detainee, it provides neither the time that is taken to dispose of the said representation nor the procedure employed to hear and dispose of the representation. Justice A. P. Sen in the case of Mohinuddin @ Moin Master v. The District Magistrate, Beed & Ors. (1987) 3 SCR 668, held that it is the constitutional right of the detainee under Preventive Detention to have its representation considered, heard and disposed of in an expeditious fashion by the relevant authorities. Justice A. P. Sen’s judgement sheds light on a situation where the representation keeps lingering with the said authorities for an unreasonable time since the period to dispose of the representation is not mentioned under Article 22, Clause 5.

Clause 6 acts as an exception to Clause 5, wherein the detaining authority is not constitutionally obligated to disclose any material facts in relation to the grounds of the Preventive Detention of the detainee whose disclosure may rout public interest. The phrase Public Interest has no additional details or provisions attached to it; this allows the detaining authority to arbitrarily withhold material facts of the detention without any real harm to the public interest.[74]

Article 9 of the International Covenant on Civil and Political Rights, 1966, outlines the global perspective of Preventive Detention. It is worth commenting that the framers of the Constitution of India held foresight in helming India as a premier democracy that understood the rights of an arrestee under Preventive Detention a decade before the United Nations. Table 1 compares Article 21 and 22 of the Indian Constitution with the aforementioned Covenant.

Sr. no Provision Article 21 and 22 Covenant
1. Deprivation of one’s Right to Personal Liberty must follow the procedure established by law Article 21 Clause 1
2. The arrestee has the right to know the grounds of the arrest at the time of the arrest Article 22, Clause 1 Clause 2
3. The arrestee has the right to be bought before a judge in a court of law within a reasonable time after the arrest Article 22, Clause 2 Clause 3
4. The court of law can decide the lawfulness and morale of a detention, wherein it can order the release of detainees under an unlawful detention No Clause 4
5. Right to Compensation of an individual who has been unlawfully arrested or detained No Clause 5
6. Right to Legal Representation and Counsel Article 22, Clause 1 and 5 No

Table 1[75]

It can be seen that Article 22 of the Indian Constitution does not provide for compensation to the arbitrary arrestees under Preventive Detention; this becomes more important in recent times when arbitrary arrests are becoming rampant in the country, wherein the 27-year-old activist, Safoora Zargar was arrested on April 10, 2020, under UAPA, 1967, for speaking during the anti-CAA protests in New Delhi.[76] The Working Group at the United Nations Human Rights Council (UNHRC) pointed out that the arbitrary arrest of Safoora Zargar shows the mala fide intention of the law enforcement agencies in New Delhi to curb the dissenting remarks made by her on the incumbent government by intimidating her with Preventive Detention under the UAPA, 1967.[77]

Read: Division of Legislative powers between Centre and State

Conclusion

Article 22, formerly known as Article 15, Clause A, was added to the Constitution of India to correct the wrongs of the Constituent Assembly within the preceding Article 21, wherein Article 22 acts as a safeguard against the ‘procedure established by law’ that can deprive an individual of its Fundamental Right to Life and Personal Liberty. Article 22 spearheads the rights of arrestees and detainees a decade before the United Nations released its International Covenant on Civil and Political Rights in 1966.

Article 22 demarcates Punitive Detention and Preventive Detention, wherein Clauses 1, 2 and 3 apply to the former while Clauses 4 through 7 apply to the latter. Collectively, three constitutional rights to the detainee remain common to both types of detention: The Right to be informed about the material grounds of the arrest, the Right to Legal Counsel and Representation and the Right against Unreasonably and Unsatisfactorily Prolonged Detention. The cardinal difference between Punitive Detention and Preventive Detention is the provision of being bought before the nearest District Magistrate within the first twenty-four hours of the arrest (Punitive Detention) while those under Preventive Detention must await their representation before an Advisory Board within the first three months of the arrest.

Currently, the National Security Act, 1980, and the Unlawful Activities (Prevention) Act, 1967, are the premier Preventive Detention legislation in India. It is worth noting that the vague wording of provisions within the legislation allows for the incumbent government to arrest any individual who causes any inconvenience in either action or thought to them without any regard to the Fundamental Freedoms of Speech and Expression.

The arbitrary nature of these legislations along with the blanket authority under Article 22, Clause 7 of the Indian Constitution turns Shri Mahavir Tyagi’s fear into a reality while deliquescing the vision of Dr B. R. Ambedkar.

 

 

References: 

[1] PARLIAMENT OF INDIA: RAJYA SABHA, CONSTITUENT ASSEMBLY MEMBERSHIP,  https://rajyasabha.nic.in/rsnew/constituent_assembly/constituent_assembly_mem.asp (last visited Mar. 14, 2021).

[2] Renuka Krishnaraja, The Man who laid the bedrock for the Indian Constitution, DECCAN HERALD (Jan. 23, 2021), https://www.deccanherald.com/spectrum/spectrum-top-stories/the-man-who-laid-the-bedrock-for-the-indian-constitution-942520.html

[3] DRAFTING COMMITTEE, https://www.constitutionofindia.net/constitution_making_process /drafting_commitee#:~:text=The%20Drafting%20Committee%20had%20seven,B.R%20Ambedkar%20as%20its%20Chairman (last visited Mar. 14, 2021).

[4] DIVYA RANI, CONSTITUTIONAL GOVERNMENT AND DEMOCRACY IN INDIA 36 (Jaspal Singh et., 2019).

[5] GRANVILLE AUSTIN, THE INDIAN CONSTITUTION: CORNERSTONE OF A NATION 61 (Oxford University Press ed., 1999).

[6] Parts of the Indian Constitution that were ‘inspired by’ others, DECCAN HERALD. (Jan. 25, 2021), https://www.deccanherald.com/national/parts-of-the-indian-constitution-that-were-inspired-by-others-943077.html.

[7] Samvidhaan: Episode 3 (Rajya Sabha TV broadcast Mar. 31, 2014), https://www.youtube.com/ watch?v=5XK89zSgK8o&t=979s.

[8] Id.

[9] Constituent Assembly Debates, INDIAN KANOON. https://indiankanoon.org/doc/747690 (last visited Mar. 14, 2021).

[10] ADVANCED CONSTITUTIONAL LAW: PROTECTION AGAINST ARREST AND DETENTION (ARTICLE 22), http://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/law/14._ advanced_constitutional_law/19._protection_against_arrest_and_detention_(article_22)/et/7619_et_19_et.pdf (last visited Mar. 15, 2021).

[11] Gautam Bhatia, Preventive Justice Part 1-The History behind Article 22, INDIAN CONSTITUTIONAL LAW AND PHILOSOPHY (Dec.03, 2016), https://indconlawphil. wordpress.com/2016/12/03/guest-post-preventive-justice-part-1-the-history-behind-article-22.

[12] Id.

[13] ADVANCED CONSTITUTIONAL LAW, supra note 10.

[14] Bhatia, supra note 11.

[15] ADVANCED CONSTITUTIONAL LAW, supra note 10.

[16] Abhinav Sekhri, Article 22(3): A Constitutional Paradox, THE PROOF OF GUILT (Nov. 15, 2018), https://theproofofguilt.blogspot.com/2018/11/article-223-constitutional-paradox.html.

[17] Himangshu R. Nath, Constitutional Law of India (Feb. 11, 2021) (unpublished classwork notes) (on file with the National Law University and Judicial Academy, Assam).

[18] Shoba Narayan, Bring the public back into the republic, MINT (Jan. 23, 2010), https://www.livemint.com/Leisure/c1XPIJYg6cSimAqQUl5uNM/Bring-the-public-back-into-the-republic.html

[19] Bhatia, supra note 11.

[20] Sekhri, supra note 16.

[21] Nishchal Kukade, Protection Against Arrest & Detention under Article 22, LAW COLUMN (Jan. 13, 2021), https://www.lawcolumn.in/protection-against-arrest-detention-under-article-22.

[22] Id.

[23] Mohini Chaturvedi, Protection against illegal arrest, detention and custodial death, LAW TIMES JOURNAL (Sep. 29, 2019), http://lawtimesjournal.in/protection-against-illegal-arrest-detention-and-custodial-death.

[24] Advaita Kapoor,  Husaainara Khatoon & Ors. vs. Home Secretary, State of Bihar, LAW TIMES JOURNAL (Mar. 17, 2020), http://lawtimesjournal.in/hussainara-khatoon-ors-vs-home-secretary-state-of bihar/#:~:text=The%20Court%20found%20that%20the,unjustified%20deprivation%20of%20 personal%20liberty.

[25] Id.

[26] Kukade, supra note 21.

[27] The State of Madhya Pradesh v. Shobharam & Ors., AIR SC 1910 (1966) (India).

[28] Nandini Satpathy v. Dani (P.L.) & Anr., 3 SCR 608 (1978) (India).

[29] Poolpandi Etc. v. Superintendent, Central Excise & Ors., 3 SCR 247 (1992) (India).

[30] Is IPC a part of the Indian Constitution? PATH LEGAL (Jun. 20, 2017), https://www.pathlegal.in/Is-IPC-a-part-of-the-Indian-constitution–blog-1093791.

[31] Deepika Reddy, Citizenship in India as per law, TELANGANA TODAY (Jan. 08, 2018), https://telanganatoday.com/citizenship-india-per-law#:~:text=An%20alien%20enemy%20includes% 20not,the%20procedural%20provisions%20in%20CIs.&text=The%20Constitution%20of%20India%20provides%20for%20single%20citizenship%20i.e.%2C%20Indian%20citizenship.

[32] IMTIAZ OMAR, RIGHTS, EMERGENCIES, JUDICIAL REVIEW 41 (Martinus Nijhoff Publishers et al., 1996).

[33] Diva Rai, Safeguards against arbitrary arrest and detention: Article 22, IPLEADERS (Jan. 23, 2020),  https://blog.ipleaders.in/safeguards-against-arbitrary-arrest-and-detention-article-22/# Preventive_Detention_Laws.

[34] Article 22 and Preventive Detention in India, GK TODAY. (Mar. 10, 2013), https://www.gktoday.in/ gk/article-22-and-preventive-detention-in-india.

[35] Id.

[36] Chaturvedi, supra note 23.

[37] GK TODAY, supra note 34.

[38] National Security Act, 1980, DRISHTI IAS. (Apr. 04, 2020), https://www.drishtiias.com/daily-updates/daily-news-analysis/national-security-act-1980.

[39] Chintan Chandrachud, The Cases that India Forgot: How TADA legitimised police excesses as the Supreme Court stood by silently, BAR AND BENCH (Jan. 27, 2020), https://www.barandbench.com/ columns/the-cases-that-india-forgot-how-tada-legitimised-police-excesses-as-the-supreme-court-stood-by-silently.

[40] Id.

[41] Rai, supra note 33.

[42] GK TODAY, supra note 34.

[43] Jayanth K. Krishnan, India’s Patriot Act: PO atriot Act: POTA and the Impact on Civil Liber A and the Impact on Civil Liberties in the ties in the World’s Largest Democracy, 22 LAW INEQUAL. 265, 2004 268-269.

[44] Rowlatt Act in disguise: The Preventive Detention laws in India, THE LAW BLOG. (Oct. 28, 2020), https://thelawblog.in/2020/10/28/rowlatt-act-in-disguise-the-preventive-detention-laws-in-india.

[45] Bhamati Sivapalan & Vidyun Sabhaney, In Illustrations: A Brief History of India’s National Security Laws, THE WIRE (Jul. 27, 2019), https://thewire.in/law/in-illustrations-a-brief-history-of-indias-national-security-laws.

[46] Diganth R. Sehgal, The Prevention of Terrorism (Repeal) Act, 2004, IPLEADERS (Jan. 30, 2021), https://blog.ipleaders.in/prevention-terrorism-repeal-act-2004/#The_Prevention_of_Terrorism_Act_ 2002.

[47] Chandrachud, supra note 39.

[48] Sehgal, supra note 46.

[49] Id.

[50] Sehgal, supra note 46.

[51] Rakesh Sinha & Kavita Chowdhury, POTA Fact: Jharkhand Has A Lot More Terror Than J-K, INDIAN EXPRESS (Mar. 28, 2003), http://www.indianexpress.com/full_story.php?content_id=20985.

[52] Shreeya Sinha & Mark Suppes, Timeline of the Riots in Modi’s Gujarat, THE NEW YORK TIMES (Aug. 19, 2015), https://www.nytimes.com/interactive/2014/04/06/world/asia/modi-gujarat-riots-timeline.html#/#time287_8514.

[53] Fatal ‘02 Hindu train fire laid to accident, not mob, THE NEW YORK TIMES. (Jan. 18, 2005), https://www.nytimes.com/2005/01/18/world/asia/fatal-02-hindu-train-fire-laid-to-accident-not-mob.html.

[54] Sinha, supra note 51.

[55] Celia W. Dugger, Religious Riots Loom Over Indian Politics, THE NEW YORK TIMES, (Jul. 27, 2002), https://www.nytimes.com/2002/07/27/world/religious-riots-loom-over-indian-politics.html.

[56] Chris Gagn,  POTA: LESSONS LEARNED FROM INDIA’S ANTI-TERROR ACT, 25 BC. THIRD WORLD L. J. 261, 274-276 (2005).

[57] Sehgal, supra note 46.

[58] Rebecca M. John, Understanding The Unlawful Activities (Prevention) Act, 1967,LIVE LAW (Sep. 29, 2018), https://www.livelaw.in/understanding-the-unlawful-activities-prevention-act-1967.

[59] Sivapalan, supra note 45.

[60] Arun Ferreira & Vernon Gonsalves, Fifty Years of Unreasonable Restrictions Under the Unlawful Activities Act, THE WIRE (Mar. 09, 2017), https://thewire.in/rights/uapa-anti-terrorism-laws.

[61] Id.

[62] John, supra note 58.

[63] Vakasha Sachdev, What is the UAPA and Why Are Arrests Under It So Problematic? THE QUINT (Sep. 14, 2020), https://www.thequint.com/explainers/uapa-provisions-terrorist-organisation-membership-activists#read-more.

[64] Gautam Bhatia, Bhima-Koregaon and the fault in our laws, THE HINDU (Jul. 02, 2018), https://www.thehindu.com/opinion/lead/bhima-koregaon-and-the-fault-in-our-laws/article 24305910.ece.

[65] Hemant Singh, What is Unlawful Activities Prevention Act (UAPA)? JAGRAN JOSH (May. 29, 2020), https://www.jagranjosh.com/general-knowledge/unlawful-activities-prevention-act-1967-1564055853-1.

[66] THE LAW BLOG, supra note at 44.

[67] T. A. Abdul Rahman v. The State of Kerala & Ors., 3 SCR 945 (1989) (India).

[68] Chaturvedi, supra note 23.

[69] Id.

[70] The Article 22 Protection Against Arrest and Detention, JATIN VERMA. (May. 11, 2019), https://www.jatinverma.org/the-article-22-protection-against-arrest-and-detention.

[71] Anitha Bruse v. The State of Kerala, CRWP. 71/ 2008 (2008) (Kerala High Court).

[72] Rachit Garg, Preventive detention laws in India, IPLEADERS (Nov. 12, 2020), https://blog.ipleaders.in/preventive-detention-laws-india.

[73] Sophia Gulam Mohd. Bham v. The State of Maharashtra & Ors., AIR SC (1999) (India).

[74] Chaturvedi, supra note 23.

[75] B. P. Srivatsava, Right Against Arbitrary Arrest And Detention Under Article 9 Of The Covenant As Recognized And Protected Under The Indian Law, 11 J. I. L. I. 29, 29-31 (1969).

[76] Safoora Zargar’s Arrest & Detention Was To Curb Her Dissent: UN Human Rights Council’s Working Group Against Arbitrary Detentions, LIVE LAW. (Mar. 15, 2021), https://www.livelaw.in/ news-updates/safoora-zargars-arrest-detention-was-to-curb-her-dissent-un-human-rights-council-171170.

[77] Id.

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