SAFEGUARDS AGAINST ARBITRARY ARREST AND DETENTION (Article 22)

This article focused on the detail discussion of the concept of Safeguard against arbitrary arrest and detention under Article 22 of the Indian Constitution

 

1. INTRODUCTION

 

According to Article 21 of the Constitution of India, no person can be deprived of his life or personal liberty except according to procedure establish by law. This means that a person can be deprived of his life and personal liberty provided his deprivation was brought about in accordance with the procedure prescribed by law.

 

Article 22 of the Indian Constitution provides those procedural requirements which much adopted and included in any procedure enacted by the legislature. If these procedural requirements are not complied with, it would then be deprivation of personal liberty which is not in accordance with the procedure establish by law. Thus, Article 22 prescribes the minimum procedural requirements that must be included in any law enacted by the legislature in accordance with which a person may be deprived of his life and personal liberty.

 

2. SUBJECT MATTERS OF ARTICLE 22

 

Article 22 of the Indian Constitution, deals with separate subject matter, such as;

 

• a)   Person arrested under the ordinary law of crimes, and
• b)   Person detained under the law of ‘Preventive Detention’.

 

The first two clause of Article 22 deals with detention under the ordinary law of crimes and lay down the procedure which has to be followed when a man is arrested and the remaining clause (3), (4), (5) and (6) deals with the persons detained under a preventive detention law and lay down the procedure which is to be followed when a person is detained under that law.

 

3. WHETHER ARTICLE 22 IS A COMPLETE CODE

 

At one time it was thought that Article 22 was a complete Code in regard to laws providing for preventive detention and that the validity of an order of detention should be determined strictly according to the terms within the four corners of Article 22. The Supreme Court held in A.K. Gopalan’s Case that Article 21 and 22 or at least Article 20 to 22 form a complete code and therefore Article 19 is not attracted in matters under Article 22. Thus, a law relating to preventive detention could not be challenged under Article 19 of the Constitution for being unreasonable restriction.

 

But the view has finally rejected. In Maneka Gandhi vs. UOI (Air 1978 SC 597) in that case, the court held that Part III of the Constitution weaves a pattern of guarantees on the texture of the basic human rights. The Court held that the procedure prescribed under the preventive detention law must be reasonable and just and fair under Article 14, 19, and 21 of the Constitution.

 

4. SAFEGUARDS/RIGHTS OF AN ARRESTED PERSON

 

Clause (1) and (2) of Article 22 guarantees four rights on a person who is arrested for any offence under an ordinary law –

 

• a)   Right to be informed regarding the grounds of arrest;
• b)   Right to consult and to be represented by lawyer of his own choice;
• c)   Right to be produce before the nearest Magistrate with 24 hours of his arrest;
• d)   Freedom from detention for specified period.

 

The rights given under above mentioned Clauses of Article 22, are available to both citizens and non-citizens and not to persons arrested and detained under any law providing for preventive detention.

 

a) Right to be informed of grounds of arrest:

 

This is necessary to enable the arrested person to know the grounds of his arrest and to prepare for his defence. Article 22 is in the nature of a directive to the arresting authorities to disclose the grounds of arrest of a person immediately.

 

Right to be informed regarding the grounds of arrest, said by the hon’ble Supreme Court in the case of A.K. Gopalan vs. State of Madras (AIR 1950 SCR 88).

 

In Joginder Kumar vs. State of U.P. (1994) 4 SCC 260, the Supreme Court held that person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the police officer effecting the arrest that such arrest was necessary and justified.

 

b) Right to consult and to be represented by lawyer of his own choice:

 

In America, if a person is arrested, he must be afforded opportunity to consult lawyer of his own choice and if he is unable to employ a counsel it is the duty of court to employ a lawyer for him (Powell vs Albama, 247 US 45). In India, prior to the Maneka Gandhi case the view of the court was that it was not bound to provide the help of a lawyer unless a request was made by him. But as result of the ruling of the Supreme Court in Maneka Gandhi case and a series of cases following that case it is clear that the court will be bound to provide the assistance of a lawyer to a person arrested under an ordinary law also.

 

In Hussainara Khatoon vs. Home Secretary, State of Bihar (AIR 1979 SC 1377), the Supreme Court has laid down that it is the constitutional right of every accused person under Article 21, who is unable to engage a lawyer and secure legal service on account of reason such as poverty, indigence or incommunicado situation, to have free legal services at State’s expenses.

 

c) Right to be produced before the nearest Magistrate:

 

In addition to the furnishing of the grounds of arrest the arrested person must be produced before the Magistrate within 24 hours of his arrest. It can be extended beyond 24 hours only under the judicial custody. If there is failure of this then it becomes illegal and he has to be released immediately.

 

d) Freedom from detention beyond the said period except by the order of Magistrate:

 

This means that if there is necessity of detention beyond 24 hours it is only possible under judicial custody. The expression ‘arrest and detention’ in Article 22(1) and (2) was held not to apply to a person arrested under a warrant issued by the court on a criminal or quasi-criminal complaints or under security proceedings. Article 22 is design to give protection against the act of the executive or order of non-judicial authorities and applies to a person who has been accused of a crime or offence of criminal or quasi-criminal nature or some act prejudicial to the state or public interest.

 

Thus, under Article 22(1) and (2) the arrested person has a right to be produce before the nearest Magistrate within the period of 24 hours. This would enable the arrested person to get a speedy trial. This means that if there is failure to produce the arrested person before the nearest Magistrate within 24 hours it would make the arrest illegal.

 

In C.B.I. vs. Anupam, (1992) 3 SCC 141, the Supreme Court laid down detailed guidelines governing arrest of an accused when the investigation cannot be completed within 24 hours. The Court has held that when a person is arrested under Section 57 of Code of Criminal Procedure (Cr.P.C) he should be produced before the Magistrate within 24 hours. The Judicial Magistrate can authorise the detention of the accused in such custody, i.e., either police or judicial from time to time but the total period of detention cannot be exceeding 15 days in the whole. After the expiry of the first period of 15 days, the further remand can only be in judicial custody. There cannot be any detention in the police custody after the expiry of first 15 days. If the investigation is not completed within 90 days or 60 days then the accused has to be released on bail as provided under Section 167(2) of the Cr.P.C.

 

The period of 90 days or 60 days has to be computed from the date of detention as per the orders of the Magistrate and not from the date or arrest by the police.

 

5. EXCEPTIONS

 

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

 

• a)   An enemy alien;
• b) A person arrested and detained under a Preventive Detention Law. An enemy alien may, however, seek the protection under Clause (4) and (5) of Article 22 if arrest under a law of Preventive Detention, but subject to the law passed by the Parliament.

 

6. PREVENTIVE DETENTION

 

Preventive Detention means detention of person without trial, in such circumstances – that the evidence in possession of authority is not sufficient to make a legal charge or to secure conviction of person by legal proof but it is still sufficient to justify his detention.

 

A.K. Gopalan vs. State of Madras, the Court said

 

“This sinister looking feature, so strangely out of place in a democratic constitution, which invests personal liberty with the sacrosanctity of Fundamental Right, and so incompatible with the promises of its preamble is doubtless designed to prevent the abuse of freedom by anti-social and subversive element which might imperial the national welfare of the infant republic”.  

 

Dr. B.R. Ambedkar – explained the significance of preventive detention by virtue of various entries in 3 lists, union and state possesses power to legislate on preventive detention.

 

The intention of the Clause (4) to (7) of Article 22, is to curtail these powers and to put certain limitations on these. Provisions of preventive detention contained in Entry 9 of list I and Entry 3 list III.

 

6.1. Safeguards – Article 22 Clause (4) to (7)

 

a) Detention not more than 3 months. In case the detention is to continue for more than three months, Clause (4) (a) of Article 22 requires that the detention must be confirmed by the Advisory Board saying that there is sufficient cause for such detention. The opinion of an Advisory Board confirming the detention must be obtained before the expiry of the first three months of detention. The order of confirmation passed after three months of the date of detention, though the opinion of the Advisory Board has been received, would be invalid and violative of Article 22 (4) (a).

 

The Constitution (44^th Amendment) Act, 1978 proposed to amend Clause (4) (a) of Article 22 to the effect that a detention without obtaining the opinion of the Advisory Board shall continue for not more than two months. This change was to be brought into force by a Notification by the Union Government. As yet no such notification has been issued and therefore the law remains as it was prior to the Constitution (44^th Amendment) Act, 1978.

 

b) If more than 3 months-opinion sufficient and reported to Advisory Board. The function of the Advisory Board is merely to report on the point whether there is sufficient cause for the detention. Is to provide a safeguard against misuse of the power of preventive detention. The Board is to judge whether the detention is justified and not arbitrary. Its duty is to report about the sufficiency of the detention. The Board is not concerned as to how long the person should be detained.

 

6.2. Constitution of Advisory Board

 

Clause (4) (a) of Article 22 provides that the advisory Board shall consists of persons who are, or have been qualifies to be appointed as, Judges of a Higher Court. It is left for the executive to constitute the Advisory Board.

 

The Constitution (44^th Amendment) Act, 1978 proposed the following changes in the composition of Advisory Board;

 

a)   The Board is to be constituted in accordance with the recommendation of the Chief Justice of the appropriate High Court.

b)   The Board shall consist of a Chairman and not less than two other members.

c)   The Chairman shall be a serving Judge of the appropriate High Court and the members shall be serving or retired judges of a High Court.

 

The 44^th Amendments, thus, proposed that the Advisory Board should be an independent and impartial body, free from executive control.

 

The changes so recommended, have not yet been brought into force and the provision stands as it was before the 44^th Amendments.

 

• d)   Communicate grounds of detention.
• e)   Not to disclose grounds – if it is against public interest.
• f)   Parliament may make law for detention beyond 3 months, without prior pinion of Advisor Board and state has no power.
• g)   Can also fix maximum period.
• h)   Can also lay procedure to be followed by the Advisory Board.

 

7. CONCLUSION:

 

In order to maintain law and order, the police being the law enforcement agency have to be given powers. Under the preventive detention legislation, a person can be detained without trial merely on the basis of reasonable suspicion in the mind of the executive of having potential of committing prejudicial act. In order to avoid the probable chances of misuse of this power against the accused or the detenue, as the case may be, certain procedural safeguards have been afforded to the accused/detenue. Right to know the grounds of arrest, right to consult and be defended by the lawyer of one’s choice, right to be brought before the magistrate within 24 hours, and in case of the detenue in preventive detention the right of representation and the limit of three months detention etc. have been provided as sufficient safeguards.