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Article 22 of Indian constitution

Article 22 of Indian constitution

Protection against arrest and detention in certain cases (Article 22)

As per Article 22 —

No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
Nothing in clauses (1) and (2) shall apply— (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.
No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless— (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:

Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).

When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.

Our Constitution guarantees certain rights to the arrested person. The first part of the Article 22 provides specific rights to persons under punitive detention. Punitive detention is detention of a person after trial and conviction to punish him for an offence committed by him. These rights are,

The right to be informed of the grounds of arrest,
The right to consult a lawyer of one’s own choice,
To be produced before a nearest magistrate within 24 hours of arrest (excluding the holidays and time taken during the journey).
Further, the period of detention cannot be beyond what is authorized by the magistrate.

It may be noted that aforesaid safeguards are not available to:

Alien enemies; and
Persons arrested or detained under preventive detention law.

Preventive Detention – The second part of the Article deals with preventive detention. In preventive detention persons are arrested to prevent them from committing a serious crime. Preventive detention is detention of a person without trial for a limited period, when the State suspects that a person is likely to commit crime or is a threat to the security of the State. Such a detention too is subject to some safeguards present in Article 22. These provisions are as follows:

A person detained on the ground of suspicion shall be detained for a maximum period of three months.
If the government seeks to detain the arrested person beyond three months, his detention must be authorized by an Advisory body, comprising judge of the level of High Court. In this regard, the Parliament is given the power to determine by law the maximum period for which a person can be detained on preventive grounds.
The detained person must be informed about the reason of his arrest, as soon as possible. An exception has been added to this provision that the State may withhold the reasons of preventive detention or such related facts, if it considers that to be against the public interest to disclose.
The detained person must have the earliest opportunity to present his case before the authority of law.

Clause 7 of Article 22 has become the basis of many of the infamous preventive detention laws, (listed below), where the general guidelines mentioned above have been relaxed. These provisions allow for extended detention without obtaining permission of The Courts. We may have a look at the provisions as given in the Constitution –

“(7) Parliament may by law prescribe—

the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);
the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).”

The Acts related to preventive detention have always been controversial for their alleged misuse and human rights violation. Preventive detention is a serious invasion of personal liberty and the laws related to this necessary evil must be applied very cautiously. Some of these Central government Acts are as follows:

Preventive Detention Act in 1950.
Armed Forces (Special Powers) Act, 1958 (AFSPA)
Unlawful Activities (Prevention) Amendment Act, 1967 (UAPA), amended in 2004 and 2008.
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA).
Maintenance of Internal Security Act (MISA) in 1974 now repealed.
The National Security Act (NSA) in 1980.
Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act (ESMA) in 1980.
Terrorist and Disruptive Activities Act (TADA) in 1985, now repealed.
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988.
Prevention of Terrorism Act, 2002 (POTA) now repealed.

The Unlawful Activities (Prevention) Amendment Act, 1967 (UAPA) was passed to make powers available for dealing with activities directed against the Integrity and sovereignty of India’. In 2004, most of the stringent provisions of POTA were reincorporated in UAPA. The act was amended again in 2008 after, December 2008 Mumbai terror attacks, incorporating further provisions against terrorist activities and meet commitments made at the Financial Action Task Force (to combat money laundering and terrorism financing). The National Security Act, 1980 (NSA) too contains many grounds in the name of national security (such as security of India, foreign relations, public order, maintenance of supplies and services essential to the community, etc) to arrest a person on presumption alone, i.e. as a pre-emptive measure. The Armed Forces (Special Powers) Act, 1958, or AFSPA also confers many extra-ordinary powers including preventive detention, to armed forces to respond at will in the ‘disturbed areas’ to maintain law and order. State governments have the power to enact such laws under Entry 3 of List III, i.e. the ‘Concurrent List’, that allows Parliament and state legislatures to pass preventive detention laws in times of peace for “the maintenance of public order or maintenance of supply and services essential to the community”. Some such acts are Maharashtra Control of Organised Crime Act, 1999 (MCOCA), Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Goondas Act), etc.

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