Author: Ridhi saxena, II year of B.A., LL.B. from Prestige institute of Management and research (DOL) Indore
According to article 21 no person can be deprived of his life or personal liberty except according to the procedure established by law, article 22 provides those procedural requirements which must be adopted and included in any procedure enacted by the legislature. Article 22 deals with two separate matters firstly persons arrested under the ordinary law of crime that is punitive detention and secondly the person detained under the law of preventive detention. This article deals with the safeguards provided in the constitution to protect arbitrary arrest and detention. This article will explain the terms punitive and preventive detention and case laws related to the same.
Article 22 of the constitution
Article 22 provides protection against arrest and detention that is available to both citizens and non-citizens. There are two types of detention: punitive detention and preventive detention. Pinnately tension is to punish a person for what he has already done and the object of preventive detention is to prevent him from doing it as in suspicion that his act is likely to cause harm to the society or endanger the security of the government.
Clauses (1) and (2) of Article 22 provide for rights or safeguard for the person arrested under ordinary laws that are in punitive detention. Rights available to them are-
Right to be informed as soon as may be of grounds for arrest or detention.
Right to consult and to be defended by a legal practitioner of his choice.
Right to be produced before the nearest magistrate within 24 hours of arrest.
Right not to be detained in custody beyond 24 hours without the authority of the magistrate.
Clause (3) of Article 22 talks about preventive detention and the clauses (4) to (7) of Article 22 provides the right available to the person detained under preventive detention laws.
Rights of persons arrested under ordinary laws
Detention after the crime is done and under ordinary laws is known as punitive detention there are various safeguards available to the person arrested under ordinary law that are provided in clause (1) and (2) of Article 22 of Indian Constitution. Rights are explained in the following-
Rights to be informed grounds of arrest
This is necessary to inform the person of the grounds of his arrest. Article 22 is in nature of directive to the arresting order it is to disclose the ground of arrest of the person immediately. The words used in article 22 (1) are ‘as soon as possible'.
In Joginder Kumar vs. State of UP[i], the Supreme Court has laid down guidelines governing the arrest of a person during the investigation. The court has held that a person is not liable to arrest nearly on the suspicion of complicity in an offence.
Right to be defended by a lawyer of own choice
Prior to Maneka Gandhi's case[ii], it is the view of the court that it is not necessary to provide the lawyer unless the request was made by the person. But as a result of the ruling of the Supreme Court and a series of cases, it is clear that the court will be bound to provide the assistance of a lawyer to a person arrested under any ordinary law also.
In Hussainara khatoon v. Home Secretary, State of Bihar[iii], Supreme Court held that it is the constitutional right of every accused person who is unable to engage a lawyer due to poverty or indigence or incommunicado situation to have a free legal service provided to him by the state.
No detention beyond 24 hours except order by a magistrate
If there is the necessity of detention beyond 24 hours then it is only possible under judicial custody. In CBI vs. Anupam j Kulkarni[iv], Supreme Court held that in case of investigation cannot be completed then when a person is arrested under section 57 of Cr.P.C he should be produced before the nearest magistrate within 24 hours the judicial magistrate can authorize the detention of accused in such custody that is either police or judicial custody from time to time but total period can't exceed 15 days in the whole.
Preventive detention laws
Clause (3) of Article 22 provides an exception to clauses (1) and (2), that these are not available to the person who is an enemy alien or a person arrested and detained under a preventive detention law. Clauses(4) – (7) of Article 22 provide the procedure which is to be followed if a person is arrested under the preventive detention laws. The object of preventive detention is not to punish a man for having done something but to intercept him and prevent him from doing it.
Preventive detention laws are not found in any democratic country; probably India is the only democratic country which has a preventive detention law on ordinary days. There is no such law in the USA and it is in England only for an emergency time. Preventive detention means retaining a person without trial. India follows this from the time of British rule and it is not the idea of our constitution-makers.
Close 22(4) to 22(7) contains the procedural requirement that is-
No detention beyond 3 months unless such detention is approved by the advisory board.
The retaining authority must communicate as soon as may be to return the new grounds for such detention.
The detenu must have the earliest opportunity of making representation against the order of detention.
No detention beyond the maximum period prescribed under a law made by Parliament under 7(b).
Clause (4) of Article 22 has been amended by the constitution 44th amendment, it substituted a new clause which reduces the maximum punishment for which a person may be detained without obtaining the opinion of the advice award from 3 months to 2 months.
Article 22 deals with two separate matters first, the person arrested and the ordinary law of crimes and second, the person detained under the law preventive detention. The first two clauses of article 22 deal with detention under the ordinary law of crime and the procedure which has to be followed when a man is arrested and the remaining clauses deal with the person detained under preventive detention law and late on the procedure which is to be followed when a person is detained under the law.
The power to enact laws of preventive detention is divided by the constitution between the Union and the states; the Union has exclusive power[v]only when such laws are required for reasons connected to foreign affairs, defence and security of India. The state has a power concurrently with the Union to provide for preventive detention for reasons connected to the security of the state maintenance of public order or the maintenance of supplies and services essential to the community[vi].
[i](1994) 4 SCC 260
[ii]Maneka Gandhi v. Union of India, AIR 1978 SC 597
[iii]AIR 1979 SC 1377
[iv](1992) 3 SCC 141
[v]Entry 9 of List I, 7th schedule
[vi] Entry 3 of List III