Thursday, October 20, 2016

Article 22 of Indian Constitution Protection Against Arrest and Detention

Article 22 of Indian Constitution broadly deals with the rights of a person who has been arrested or detained. There are seven clauses. The first two describe the rights of a person who has been arrested for a crime he has already committed. After that, the rights and the procedure for the arrest and detention of person under preventive detention. I will explain them one by one.

First, let’s understand what preventive detention is.

Preventive detention means the imprisonment or detention of a person on the sole grounds that he might commit a crime in the future which will jeopardize the security of the state or country. This includes the harm to a public peace, national security, espionage, acts of terrorism etc. The inclusion of preventive detention into our constitution is frowned upon by a huge group of people who think of it as a black spot on an otherwise so called democratic society.

I will explain its merits and demerits later on when we discuss the Clause 3 of Article 22 of Indian Constitution.

For now, let’s start with the first one.

Explanation of Clause 1 of Article 22 of Indian Constitution - 

This is pretty straight-forward. It states that a person who has been arrested under normal circumstances (not under preventive detention), has the right to an attorney or a lawyer to represent him in court or to guide him. Also, he has the right to know the charges for which he has been arrested and can be detained further. The concerned authority, like the police or any other government authority, is compelled to tell him this information as soon as possible.
Article 22 of India Constitution Preventive Detention Laws
Article 22 of India Constitution Preventive Detention Laws

Explanation of Clause 2 of Article 22 of Indian Constitution - 

This clause states that any person who has been arrested by an authority, must be presented before a magistrate within 24 hours of the arrest. This period of 24 hours doesn’t include the time taken to travel to the court of the magistrate. The person cannot be detained or held in custody for more than twenty four hours. After that, it is with the authority or permission of the magistrate that an agency or government body can extend the period of the detention. In my opinion, the exclusion of the commute time can act as a loophole which can be taken advantage of. But that is the case with most laws. We can always find loopholes.

Explanation of Clause 3 of Article 22 of Indian Constitution - 

This states the people or classes of people who are not entitled to the rights mentioned in the above clauses. This clause further has two sub clauses.

(a)   This states that the rights mentioned in the first two clauses are not valid for a person who is an “enemy alien”. Not an extraterrestrial being, just any person who is a citizen of an enemy country. It’s perfectly justified as in times of war, when enemy soldiers or spies are arrested, we won't go around giving them the same rights that we give to our citizens. Like in Indo Pak war, countless Pakistani soldiers were captured. If we gave them all the same rights, we would have flooded our judicial system and moreover, we won't be at peace with ourselves.

(b)   Now, we have come to most controversial lines of our constitution. This is considered as one of the most unacceptable clauses in our constitution by many people. The concept of preventive detention. First let me tell you what is written in the constitution. This sub-clause states that the rights mentioned in the first two clauses are not applicable to people who have been arrested or detained on the grounds of preventive detention. Most countries like the United Kingdom or the United States of America have rendered this as unlawful. In the United States of America, the 6th Amendment act guarantees their citizens “the right to a speedy and public trial”. Arrested people cannot be held in custody for longer periods of time without being given a trial. However, convicted people can be detained indefinitely after being considered as dangerous offenders. If we talk about India, before independence, the British government used the same concept to suppress any nationalist movements that might originate. Countless innocent people were put in jail without having done anything wrong. First such instance was in the year 1818 when the government had the right to detain any person, simply on the basis of suspicion.

The first act for preventive detention post-independence was passed in 1950 which was fruitlessly challenged by Gopalan as the Madras high court deemed it constitutionally valid.  This act finally expired in 1969, after having been extended 7 times. After that, more such acts were introduced such as MISA, COFEPOSA and TADA. The TADA act was considered the most inhumane as even confessions made under torture by the police were considered admissible in the court as evidence. There were rumors of widespread misuse.

After the series of attacks in Mumbai on 26th Nov 2008, a new act was passed, named as Unlawful Activities (Prevention) act.

Explanation of Clause 4 of Article 22 of Indian Constitution - 

This clause tries to safeguard the misuse of the preventive detention powers of the government agencies. According to this, a person who has been detained under preventive detention, cannot be held for more than 3 months without the recommendation of an advisory board. This advisory board will be formed containing at least three members who are either high court judges or have the qualification to be high court judges.

Explanation of Clause 5 of Article 22 of Indian Constitution - 

This states that a person detained under any order which refer to preventive detention, may be given the right to know the grounds of detention and allowed to make representation against the said detention, on a time that the government sees fit. It is advised to make it as soon as possible.

Explanation of Clause 6 of Article 22 of Indian Constitution - 

It states that while disclosing the grounds of detention to a person, under clause (5) of Article 22 of Indian Constitution, the government has a right to withhold the specifics or facts which it may consider will harm the public interest.

Explanation of Clause 7 of Article 22 of Indian Constitution - 

It describes the powers of the parliament as follows:

(a)   The parliament can define the necessary situations in which a person or class can be detained for more than 3 months, without consulting with the Advisory Board. However, they will need to pass a law for this.

(b)   It can decide the maximum period of detention

(c)    It can modify or define the procedure which is to be followed by the advisory board.

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