Arrest and detention are essential parts of the criminal procedure aimed to impart justice. It aids the police in the investigation procedure as also helps to maintain public order and tranquillity of the country. However, the act of arrest or detention affects and puts a restraint on the personal liberty, freedom, and life of a person as opposed to the Fundamental Rights guaranteed under Article 21 of the Indian Constitution. Thus, Article 22 guarantees to see that while a person is arrested, his/her rights are protected. Article 22 mainly provides for the rights of an arrestee or detainee under two circumstances, that is, during ordinary circumstances where a person has committed a crime or is accused of committing a crime and during the circumstances when he/she is arrested under the law of preventive detention.
While the laws of arrest and detention mainly come into play after a person has committed a crime, the laws of preventive detention detain a person based on suspicion or are based on his/her potential to cause disturbance to public order and tranquillity. None other democratic countries except India has the provisions of preventive detention under normal circumstances. This is because such detention is based on mere suspicion and is executed without a trial or decision by the court. Secondly, it has a great impact on the lives of the individuals detained, especially those who might be innocent. It becomes difficult for most of the detained individuals to exercise their rights, and sometimes the law fails to protect them due to the slow justice system of the country.
The Law of preventive detention is quite powerful and thus, is often subject to misuse. Therefore, it becomes important to see that this provision is not exploited by the executive authorities to take undue advantage of people, especially the accused. It thus becomes important to safeguard the rights of the people, predominantly the accused who has been arrested or detained.
Provisions under Article 22 of the Constitution provide to save people from misuse of the power of arrest and detention as well as other associated atrocities. However, over a few years, there have been many cases of misuse and exploitation of these powers by the executive authorities. Thus, it is important to examine and look into the necessity of laws of preventive detention along with the effectiveness of protection against arrest and detention as guaranteed under Article 22.
Difference between arrest and detention
A person can be kept in custody if he has been accused of a crime or if there is reasonable suspicion that the person was involved in the crime. An arrest is made when an accused is detained by the police. However, detention may apply to other people, who may not be the accused but are restricted or restrained in police custody on the grounds of reasonable suspicion. Such people may have been a part of the crime or mere witnesses to the crime. Generally, a detained person is investigated by the police, after which he is released. In case of arrest, the person is charged for an offense and has to be produced before a magistrate within the next 24 hours. Also, an arrested person is released on bail.
Generally, the police officers require a warrant from the magistrate to arrest a person, but the police even have the power to arrest without a warrant if an immediate arrest has to be done, and getting the warrant issued shall only cause undue delay. The police are empowered to arrest without a warrant as under Sec. 41 of the CrPC, 1973. In cases where the police officer is arresting with a warrant, the officer has to notify the substance of the warrant and show it to the arrestee, if required as provided under Sec. 75 of CrPC. Thus, the arrested or detained person has the full right to know about the grounds of his arrest.
Provisions under Article 22
Right to freedom and personal liberty are basic human rights as ensured by Article 21 of the Indian Constitution. Thus, Article 20-22 of the Indian Constitution confer various rights to an arrested or detained person. These articles ensure that the rights of an accused/detained person do not get infringed by the State or its authorities like the Police. Some of such rights include the right to not be punished more than one time for the same offense and the right to silence, where the person can not be forced to accept the crime or be a witness against himself.
Provisions made in Article 22 from clause (1) to (3) are for Punitive Detention while the provisions under clause (4) to (7) are for Preventive detention. Article 22(1) provides that when the police are making an arrest, they must inform the person about the grounds of his arrest (Sec. 50 of the CrPC enforces this provision). It also provides for the right to legal aid where the accused has the right to consult and hire a lawyer to defend his case, and no accused shall be denied of it. The same is also given under Sec. 303 of CrPC. In cases where the accused can not afford one, it becomes the obligation of the State to provide him with a lawyer. Sec. 41D of CrPC provides for the arrested person to hire any advocate of his choice during interrogation.
Similar was held under Husain Khatoon vs the State of Bihar (1979 AIR 1369), under which the issue of prisoners being kept in jail even after they had served their sentence was put forth. It was also sought that not all of the prisoners could afford a legal representative or furnish bail. Thus, it was held that if a person has been deprived of his personal liberty, then the reason should be just and fair. Since not everyone could afford legal aid, free legal service on the part of the State was held to be essential for just, and fair criminal procedure after this case around 40,000 prisoners detained in jail were released.
In the case of State Of Madhya Pradesh vs Shobharam (AIR 1966 SC 1910), the respondents were arrested for trespass and made to pay a fine as decided by the Nyaya Panchayat, established under the Madhya Bharat Panchayat Act, 1949. However, the HC rejected such a decision as Sec. 63 of the Act provided that no party shall have a right to be represented through a lawyer. This provision was held to be violative of Article 22(1) of the Constitution which gave
everyone the right to legal aid.
Art. 22(2) states that every person who is arrested or detained by police has to be taken to the nearest magistrate within 24 hours of such arrest. However, this time does not include the time taken to reach the court of a magistrate from the place of arrest. No person can be detained in custody beyond the given time without the order of a magistrate. If the police fail to investigate within the given time period and feels that there is a requirement to further detain the accused, then under Sec. 167 of the CrPC it can approach the magistrate, who shall extend the Police Custody or grant Judicial Custody as it deems fit. However, if a person is detained beyond 24 hours without the permission of the magistrate, then such detention shall be illegal and unlawful.
In the case of Bhim Singh vs the State of J&K (AIR 1986 SC 494), the member of the State Legislative Assembly was unlawfully detained and kept in the custody of the Police. The arrest was violative of Article 21 of the Indian Constitution which secures the Right to life and personal liberty. The person was also not informed about the reasons for his arrest and was thus, also violative of Article 22. Later, the Supreme Court gave the arrested person a compensation of Rs. 50,000/-.
It must be noted that provisions under Article 22 (1) and (2) do not apply to a person who is an enemy alien, that is, any citizen of a foreign nation with which India is at war, and also does not extend to any person arrested on the grounds of preventive detention. Art 22(3) provides for these two exemptions.
Preventive detention is when a person is arrested not after being accused of committing a crime, but when there is reasonable suspicion that he/she shall commit a crime. It is detention made before the crime is committed in order to prevent a crime from taking place. It is a concept prevalent in India; however, most countries do not accept it. In England, preventive detention was made only during wars and is now unlawful there as well as in the US and Canada. It is a very crucial power at the hands of the executive and should be exercised with great care and caution. Various provisions to exercise the power of preventive detention are laid down carefully in Article 22 of the Indian Constitution.
History of Preventive Detention in India
The concept of preventive detention in India emerged before independence under British Rule. In order to contain the nationalist movements in India, the government took up the law of preventive detention as passed under the East India Company Act of 1784 and 1793. Later, it passed the Bengal Regulations Act-III, 1818, which empowered the government to arrest and detain any person on mere suspicion who was regarded as a threat to the British settlement in India. Again in 1939, with the passing of the Defence of India Act, any person could be arrested if it was satisfied that he was about to cause trouble in regard to the defense and security of the country.
After Independence, the laws with regard to preventive detention were included in the Constitution of India. This was done with an aim to prevent anti-national movements or acts. One of the first Acts passed on preventive detention after independence was the Preventive Detention Law, 1950. However, its Constitutional validity was challenged in various cases, including the Gopalan vs the State of Madras (AIR 1950 SC 27), where the petitioner was unlawfully detained. The Act finally ceased to function in 1969. Various laws were made afterward on preventive detention. However, there were gaps from January 1970 to May 1971, and from March 1977 to September 1980.
Later, other major Acts that were passed included the Maintenance of Internal Security Act (MISA) 1971, Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) 1974, Terrorism and Disruptive Activities (Prevention) Act (TADA) 1985, and Prevention of Terrorism Ordinance 2001. One of the recent Acts having laws related to preventive detention was the Unlawful Activities (Prevention) Amendment Act, 2008, after the Bombay attack in 2008.
Acts like MISA and TADA have been revoked, while some like COFEPOSA continue to operate along with the National Security Act (NSA) 1980, the Prevention of Black Marketing and Maintenance of Essential Commodities Act 1980, and the Prevention of Terrorism Act (POTA) 2002. It must be noted that the Parliament has been bestowed by the Constitution with the power to make laws regarding preventive detention, as under List I for matters affecting the defense, security, and foreign of the country. It also has the power to do so on any grounds under its residuary power as under Art. 248(2) of the Constitution. Even the State Legislature has the power to make such laws as under List III, for affairs related to the security of State and maintaining public order.
Preventive Detention under Article 22
The Forty-fourth amendment of the Constitution added clause (4) to Article 22 from clause 4 onwards, the provisions of preventive detention have been laid down as-.
- Preventive detention of a person can not exceed more than 3 months as under clause 4.
- Every case of preventive detention must be sent to the Advisory Board, which consists of Judges of the concerned High Court or people qualified to be the Judges of High Court as under clause 4(a).
- The person detained must be told about the reasons behind his detention, and he should also be given the Right to legal aid as under clause 5.
- In order to continue preventive detention for more than 3 months, the permission of the Advisory Board is required. However, the extension has to be less than the max time of detention as prescribed under the particular preventive detention act under which the detention has been made.
- However, in case of detention beyond 3 months, even the parliament can grant permission by law as under clause 7 sub-clause (a). It can also decide the max time of detention, as given under clause 7 (b). Under 22(7)(c), Parliament can prescribe to the Advisory Board the procedure of inquiry they need to follow.
Many critics have seen Article 22 as a social evil as it empowers the State to make any arrest or detention based on its satisfaction. Out of all the provisions, preventive detention is the most ridiculed one. In August 2000, the South Asian Human Rights Documentation Centre, a non-profit organization in Delhi, asked the National Commission to review the Constitution to omit the provisions that permit preventive detention in India. In the case of preventive detention, the sole responsibility lies with the authority making and sanctioning it. However, it is understood that this power is not greater than the rights of freedom of life and liberty as guaranteed by the Fundamental Rights, and thus, such detention is deemed to be violative of these. Therefore, while making preventive detention, the authorities have to be extra sure and extra judicious.
Preventive detention is an unnecessary evil in a democratic country like India for the powers provided by law to the executive authorities are often misused to exploit innocent people. Many people have criticized the inclusion of law on preventive detention in the Indian Constitution. This is because it proposes a serious threat to the Fundamental Rights as guaranteed under the Indian Constitution and provisions of international human rights. Arrest or detention on mere suspicion can not be justified, and there should be some form of proof or evidence available against the person.
In India, as well as other countries, people who have been arrested are not welcomed back to society with open arms. Thus, arrest or detention propose a great threat not only to the personal freedom and freedom of the person but also impairs and stains their character. Thus, the arrest and detention of an innocent may lead to his/her character assassination.
In the of Joginder Kumar vs State of Uttar Pradesh ((1994) 4 SCC 260), it was held that no arrest could be made without proper justification and reasons. Since arrest causes incalculable harm to the reputation of a person, it is important to see that no arrest and detention is made without a reasonable satisfaction, which shall only be reached after investigation
There have been many reports of misuse of the power conferred on the executive authorities for arrest, detention, and preventive detention. False cases have been framed against people with mala fide intention. Some of the landmark cases include Joginder Kumar vs State of Uttar Pradesh ((1994) 4 SCC 260), where the police summoned Joginder Kumar for the purpose of the inquiry. However, he was detained for about five days and even taken to some unknown place. Thus, his family filled the writ of habeas corpus in the SC. Similar was the case of Bhim Singh vs State of J&K, where the MLA was detained unlawfully.
Since the provisions of arrest and detention violate Fundamental Rights, it is important to see that whenever such an act is done, it is done on the basis of concrete evidence and investigation instead of mere suspicion. In Khudiram Das v/s State of WB & Ors. (1975 AIR 550), the bench consisting of four judges held that although the law of preventive detention has to pass the test of Art. 22 yet it shall also fulfill the requirements of other Fundamental Rights, especially those provided under Article 14,19, and 21.
Also, there should be an implementation of stricter laws even after the arrest or detention so as to ensure that the individual is not detained for longer than necessary and to check that his human rights are not being violated by torturing. It must be understood that preventive detention can not be turned in to punitive detention.
VIOLATION OF PROVISIONS UNDER ARTICLE 22
Art. 22 saves the people from any sort of police atrocity and ensures that the power of the police (as well as the authorities sanctioning the arrest or detention) is not misused. It keeps a check on the power of the authorities and the State. Thus, if any of the rights of a person is infringed, they have a Right to Constitutional Remedies as ensured under Article 32 to 35.
In case of any unlawful, unjust, or illegal arrest or detention, a person can file a writ of Habeas Corpus which is protected by the SC, as under Art. 32 and HC, as under Art. 226 of the constitution. The term Habeas Corpus is a Latin term that means ‘to have the body’. If a person is detained illegally by the State, then such a person or his family members, friends or relatives can file a writ of Habeas Corpus to get him released from the unlawful detention. The SC or HC shall inquire the authority who made the arrest and ask the grounds of such arrest.
In the case of ADM Jabalpur vs Shivkant Shukla ( 1976 2 SCC 521), also known as the Habeas Corpus case, many people were arrested and detained during an emergency. They together filed the writ of Habeas Corpus for getting released. The SC held that during an emergency, the Fundamental Rights can not be enforced and thus can not be the writ of Habeas Corpus. Thus, it was held that Art. 21 and 22 along with others could not be enforced during an emergency.
In the case of Sunil Batra vs Delhi Administration (1980 AIR 1579), it was held that the writ of Habeas Corpus could be filed not only for illegal detention but also for protection from any ill-treatment, custodial torture, and other atrocities related to detention. Thus, the writ of Habeas Corpus keeps a check on the illegal detention, the manner in which it is caused, and the way a person is treated in detention.
In the case of Bhim Singh vs the State of J&K (AIR 1986 SC 494), the petitioner, wife of the MLA had filed for a writ of Habeas Corpus. After being arrested, he was not produced before the Magistrate within 24 hours, and the Magistrate also ordered remand without ordering the police to produce the arrested person before him. The Court held that the Magistrate acted without any sense of responsibility, and the police arrested Mr Bhim Singh with mischievous and malicious intent. It was also held that Bhim Singh was wrongfully confined.
Thus, the SC held that the arrest was a gross violation of the Constitutional Right of the accused person under Art.19, 21, and 22. Thus, the State of J&K was directed to pay Mr Bhim Singh a sum of Rs. 50,000 as monetary compensation for the legal damage caused to him.
Article 22 safeguards the rights of the person who is arrested or detained. While Article 22 (1) to 22 (3) give out the provisions of Punitive Detention, Art. 22(4) to 22(7) talks about Preventive Detention. Police have been given the power to maintain law and order, however, in order to see that these are not misused certain procedural provisions for the safeguards of the arrestee or detainee have been bestowed by the Constitution. It is essential to see that every arrest is based on a reasonable ground and not upon the whim and fancies of the authorities. Even in cases of preventive detention, strict laws have to be followed so as to avoid even a minor possibility of infringement of the Fundamental Rights of the person.
Major rights and safeguards are given under Article 22 to the arrestees or detainees are the right to information of the grounds of arrest, right to legal aid and right to be produced before the magistrate within 24 hours. In the case of preventive detention, it is seen that the detention is done with the consent of the Advisory Board and that the detention does not exceed three months generally. Along with these, there are other various rights given in the CrPC for safeguards of the arrested or detained person. These all may include Sec. 41B, 41C, 41D, 50 56, 57, 75, 167, 303, and others of CrPC.
As such rights have been conferred on the arrestee or detinue, it becomes the duty of the arresting authority to make aware the person arrested or detained about these rights. It is their duty to follow all the provisions and guidelines given under the Constitution and the CrPC. Irregularity or violating any of such provisions makes the authority responsible and liable for compensation to the aggrieved party.
The arrestee or detinue also has the right to approach the SC or HC and file for the writ on violation of any of the said provisions. Generally, in such cases, the most applied writ is the writ of Habeas Corpus, which deals with illegal detention. The aggrieved party also has the right to Constitutional Remedies in case of violation of any of the Fundamental Rights. However, the same is not applicable or enforceable during an emergency, and such an issue is up to the discretion of the court.
It is important to see that the people are well aware of their rights and duties along with the rights and duties of others towards them, especially the duty of the State. If there is a lack of awareness on the part of both sides, then there can be no just and fair trial. It is the duty and responsibility of the State and other authorities to make the general public aware of their rights. If such understanding is lacking, then power can be easily misused, and such legal provisions or safeguards may fail.
Thus, Art. 22 is one of the main provisions that safeguard the rights of the people and ensures that they can enjoy the Right to Life and Personal Liberty without any unlawful interference.
It is clear that while the Constitution of India promises to protect its people from arrest and detention, not many are able to avail their rights. With the inclusion of laws on preventive detention, it becomes more difficult to safeguard the Fundamental Rights of personal liberty and freedom as along with other rights of a particular individual. Thus, there should be a strict mechanism to ensure that the detainee is well aware of all his/her rights, and these are made available all the time in the period of detention. Step of holding an individual should be taken after deliberation and investigation (in most of the cases, especially those of preventive detention).
In a democracy, preventive detention is an evil that acts as a shackle in attaining the Fundamental Rights, and thus, its inclusion as a Constitutional Provision should be reconsidered. The measure of preventive detention should only be taken in extreme cases as a last resort. Like England, India can adopt the law of preventive detention during emergency situations, like war. Arrest or detention on mere suspicion is a threat to a democratic country like India and thus, should be based on concrete evidence. There should be an independent body of law to look after these cases, especially the pending ones. Thus, the inclusion of preventive detention should be amended or removed from the Constitution or should be specifically operable only in worse and emergency situations of serious threat. All such arrest and detention should be carefully double-checked by the lawmakers and protectors of our country.