Laws relating to Protection against Arrest and Detention

    Article 22 dealing with Arrest and Detention

    Article 22 of the Indian Constitution grants protection to the persons who are arrested or detained. This article falls under the Fundamental Rights given in the Constitution.

    Article 21 of the Indian Constitution provides that no person shall be deprived of his life or personal liberty without due process of law. Dr. Ambedkar suggested to change the phrase from “due process of law” to “procedure established by law”, and this has been adopted in the Constitution. In Article 22, the essentials of the procedure established by the law required to deprive a person of his life and liberty has been laid down.

    Detention is of two types –

    Arrest and Detention
    Arrest and Detention
    • Punitive Detention
    • Preventive Detention

    Punitive Detention is the type of detention which punishes an individual for an offence committed by him after the trial & conviction in a Court.

    Preventive Detention, on the other hand, means detention of an indivdual without trial and conviction by a Court. Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the future.

    Thus, Preventive Detention is merely a precautionary measure and based on suspicion.

    The Article 22 has two parts

    The First part is dealing with the cases of Ordinary Law

    The First part of Article 22 confers the given rights on an individual who is arrested or detained under an Ordinary Law:

    1. The Right to be informed “as soon as possible” about the ground of arrest.
    2. The Right to appoint, consult and to be represented by a lawyer of his own choice
    3. The Right to be produced before a Magistrate within 24 hours.
    4. Freedom from detention beyond the said period except for the Order of the Magistrate.

    These safeguards are not provided to an alien or an individual arrested under a Preventive Detention law.

    Caselaw

    Joginder Kumar vs. State of UP

    The Supreme Court has laid down the following guidelines to be followed while making an arrest of a person:

    • If a person is arrested, he must be informed about the ground of arrest, and he must be produced before the nearest Magistrate of First class within 24 hrs.
    • The person arrested may request the police to allow any one of his friends, relatives or any interested person to accompany him.
    • As soon as the arrest is made, it must be entered in the diary of the Police Station.

    Hussainara Khatoon vs. Home Secretary, State of Bihar

    The Supreme Court held that it is the Constitutional Right of every accused person who is unable to appoint a lawyer and secure legal services on account of reason such as poverty or going through an indigence situation, to have free legal aid services provided to him by the state.

    A.D.M Jabalpur vs. S. Shukla

    The infamous case of A.D.M Jabalpur vs. S. Shukla took place during an ongoing emergency. The Supreme Court held that the right to approach the Court for enforcement of the Fundamental Rights granted under the Constitution would be suspended during the time of emergency. Article 14, 21 and 22 which were considered to be the most essential Fundamental Rights were also suspended. This led to a chaos in the country. In later amendment, it was held that Article 21 and 22 cannot be suspended even during emergency period.

    The Second part is dealing with the cases of Preventive Detention Law

    The Second part of Article 22 confers protection to individuals who are arrested or detained under a Preventive Detention Law.

    This protection is provided to both citizens as well as aliens and includes the following-

    1. The detention period of a person cannot surpass 3 months unless an Advisory Board reports sufficient reason for extended detention. The Advisory Board consists of a High Court Judge.
    2. The detainee should be informed about the grounds of detention. However, the facts which are considered to be against the public interest need not be disclosed.
    3. The grounds must be explained in language which the detainee understands and not in a vague or inadequate manner.
    4. The detainee should be given an opportunity to make a representation against the detention order.

    Caselaw

    Dhananjay Das vs. District Magistrate

    In this case, the grounds supplied to the plaintiff were vague and inadequate due to which the Court ordered his release. The Court held that out of the several grounds even one ground is vague or inadequate, it violates the right of representation.

    Article 22 also gives authority to the Parliament to prescribe –

    • The circumstances and the classes of cases in which an individual can be detained for more than 3 months under a Preventive Detention Law without obtaining the opinion of an Advisory Board.
    • The minimum period for which an individual can be detained in any classes of cases  under a Preventive Detention Law
    • The procedure which is to be followed by an Advisory Board in an inquiry.

    Treatment given to a detainee

    A person preventively detained is not convicted of any crime and, thus only minimum restrictions are to be placed on him. The detainee should be kept separately from the other convicts. He should be permitted to wear his own clothes.

    The Preventive Detention Laws made by the Parliament:

    1. Preventive Detention Act, 1950; Expired in 1969.
    2. Maintenance of Internal Security Act (MISA), 1971; Repealed in 1978.
    3. Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974.
    4. National Security Act, 1980.
    5. Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985; Repealed in 1995.
    6. Prevention of Terrorism Act (POTA), 2002; Repealed in 2004.
    7. Armed Forces (Special Powers) Act, 1958 (AFSPA)
    8. Unlawful Activities (Prevention) Amendment Act (UAPA),1967; amended in 2004 and 2008
    9. Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988

    The aim of framing such laws was to maintain peace and harmony in the society. Although in some situations, it may lead to injustice. It is unfortunate to know that no democratic country in the world has made Preventive Detention an integral part of the Constitution as done in India. It is unknown in USA and it was resorted to in UK only during 1st & 2nd War time.

    Laws relating to Protection against Arrest and Detention – Article 22 – Detention types – Punitive & Preventive Detention. Hussainara Khatoon – A.D.M Jabalpur vs. S. Shukla Laws relating to Protection against Arrest and Detention – Article 22 – Detention types – Punitive & Preventive Detention. Hussainara Khatoon – A.D.M Jabalpur vs. S. Shukla Laws relating to Protection against Arrest and Detention – Article 22 – Detention types – Punitive & Preventive Detention. Hussainara Khatoon – A.D.M Jabalpur vs. S. Shukla Laws relating to Protection against Arrest and Detention – Article 22 – Detention types – Punitive & Preventive Detention. Hussainara Khatoon – A.D.M Jabalpur vs. S. Shukla Laws relating to Protection against Arrest and Detention – Article 22 – Detention types – Punitive & Preventive Detention. Hussainara Khatoon – A.D.M Jabalpur vs. S. Shukla Laws relating to Protection against Arrest and Detention – Article 22 – Detention types – Punitive & Preventive Detention. Hussainara Khatoon – A.D.M Jabalpur vs. S. Shukla Laws relating to Protection against Arrest and Detention – Article 22 – Detention types – Punitive & Preventive Detention. Hussainara Khatoon – A.D.M Jabalpur vs. S. Shukla Laws relating to Protection against Arrest and Detention – Article 22 – Detention types – Punitive & Preventive Detention. Hussainara Khatoon – A.D.M Jabalpur vs. S. Shukla Laws relating to Protection against Arrest and Detention – Article 22 – Detention types – Punitive & Preventive Detention. Hussainara Khatoon – A.D.M Jabalpur vs. S. Shukla Laws relating to Protection against Arrest and Detention – Article 22 – Detention types – Punitive & Preventive Detention. Hussainara Khatoon – A.D.M Jabalpur vs. S. Shukla Laws relating to Protection against Arrest and Detention – Article 22 – Detention types – Punitive & Preventive Detention. Hussainara Khatoon – A.D.M Jabalpur vs. S. Shukla