Article 22 and Preventive Detention in India

Article 22 makes the minimum procedural requirements which must be included in any law enacted by legislature in accordance of which a person is deprived of his personal liberty. Article 22(1) and (2) are also called Rights of an arrested person.

Rights of an Arrested Person (Article 22(1) and 22(2)

• A person cannot be arrested and detained without being informed why he is being arrested.
• A person who is arrested cannot be denied to be defended by a legal practitioner of his choice. This means that the arrested person has right to hire a legal practitioner to defend himself/ herself.
• Every person who has been arrested would be produced before the nearest magistrate within 24 hours.
• The custody of the detained person cannot be beyond the said period by the authority of magistrate.

The Article 22(1) and 22(2) make the above provisions. However, Article 22(3) says that the above safeguards are not available to the following:

• If the person is at the time being an enemy alien.
• If the person is arrested under certain law made for the purpose of “Preventive Detention“

The first condition above is justified, because when India is in war, the citizen of the enemy country may be arrested. But the second clause was not easy to justify by the constituent assembly. This was one of the few provisions which resulted in stormy and acrimonious discussions.

Preventive Detention Laws

A person can be put in jail / custody for two reasons. One is that he has committed a crime. Another is that he is potential to commit a crime in future. The custody arising out of the later is preventive detention and in this, a person is deemed likely to commit a crime. Thus Preventive Detention is done before the crime has been committed.

The definition of Preventive detention itself is so confusing. For example:

• How one can say that a person will do a crime in future?
• What are the implications of arresting a person without having committed a crime?
• Why Preventive Detention in peacetime. Isn’t it against the safeguards of our own citizens as provided by Article 22?

The preventive detention laws are repugnant to modern democratic constitutions. They are not found in any of the democratic countries. In England, the preventive detention law was resorted to only during the time of war. Of the provisions of the “Preventive Detention” are unlawful in most countries like USA & UK, then why we India has such thing?

The answer of above question is as follows:

India is a country having multi-ethnic, mutli-religious and multilingual society. Caste and communal violence is very common in India. Apart from that the circumstances at the time , when our constitution came in force demanded such provisions. This is evident from following statement of Dr. Bhimrao Ambedkar:

“….in the present circumstances of the country, it may be necessary for the executive to detain a person who is tempering either with the public order or with the defense services of the country. In such case, I don’t think that the exigency of the liberty of an individual shall be above the interests of the state” Dr. B R Ambedkar.

However, the provisions of the constitution seem to be ambiguous and this ambiguity has been tried to do away with some provisions. These provisions are mentioned in Article 22 (1), 22(5), 22 (6).

Here is a summary of these provisions:

• Every case of preventive detention must be authorized by law and not at the will of the executive.
• The Preventive detention cannot extend beyond a period of 3 months .
• Every case of preventive detention must be placed before an Advisory Board composed of Judges of the High Court (or persons qualified for Judges of the High Court)
• The case must be presented before the Advisory Board within 3 months.
• A continued detention after 3 months must be having a “favours of the Advisory Board”.
• The person will be given opportunity to afford earliest opportunity to make a representation against the preventive detention.
• No person can be detained indefinitely.

Article 22 (7) provides exception to the above provisions. This Article mandates that:

• When parliament prescribes by law the circumstances under which a person may be kept in detention may be kept in detention beyond 3 months without the opinion of the advisory board.
• Parliament by law can also describe under the same law, the maximum period of detention.

Historical background of Preventive detention in India

India has a long history of “Preventive Detention”. India is one of the few countries in the world whose Constitution allows for preventive detention during peacetime. The opponents to this law say that these provisions are without any safeguards that elsewhere are understood to be basic requirements for protecting fundamental human rights.

• For example, the European Court of Human Rights has long held that preventive detention is unlawful under the European Convention on Human Rights regardless of the safeguards embodied in the law.
• South Asia Human Rights Documentation Centre (SAHRDC), recommended in its submission to the National Commission to Review the Working of the Constitution (NCRWC) in August 2000, to remove the provisions of the Constitution of India that explicitly permit preventive detention.

The following are some historical landmarks related to Preventive Detention in India.

• In India the history of preventive detention dates back to the early days of the British rule when under the Bengal Regulation— III of 1818 (the Bengal State Prisoners Regulation) the government was empowered to detain anybody on mere suspicion.
• Rule 26 of the Rules framed under the Defense of India Act 1939 allowed the detention of a person if it was “satisfied with respect to that particular person that such detention was necessary to prevent him from acting in any manner prejudicial” to the defense and safety of the country .
• Post Independence, The first Preventive Detention Act was passed in 1950. The validity of this act was challenged in the Supreme Court in the Gopalan v/s State of Madras Court. The Supreme Court held this act constitutionally valid except some provisions. This act expired in 1969, and before it expired, it was amended for 7 times, each expansion was to make it valid for 3 more years and this it was extended till 31 December 1969.
• In 1971, the Maintenance of Internal Security Act (MISA) was passed. MISA was basically a modified version of the PDA Act. It was abolished in 1978.
• Another law, Conservation of Foreign exchange and Prevention of Smuggling Activities (COFEPOSA) was enacted in 1974 and it continued.
• In the heat of the terrorism in Punjab the Terrorist & Disruptive Activities (Prevention) Act or infamous TADA was enacted in 1985. It was renewed in 1989, 1991 and 1993 and lapsed in 1995 due to increasing unpopularity due to widespread allegations of abuse. The main abuse was that a confession before a police officer, even though being given under torture, was admissible as evidence in court.
• Another similar act Prevention of Terrorism Ordinance (POTO) of 2001 came into force.
• Both the TADA & POTO were later succeeded by another controversial Prevention of Terrorist Activities Act (POTA) during 2002-04. This act was supported by the NDA Government but later was scrapped by the UPA government.
• After the Bombay attacks of November 26, 2008 parliament enacted another anti terror law known as Unlawful Activities (Prevention) Act.

Preventive Detention as “Evil” of Article 22

• Constitution of India has several flaws and Article 22 is the worst flaw in that.
• Under Article 22, preventive detention may be implemented any time and the constitution expressly allows an individual to be detained — without charge or trial so it is a devastating blow to personal liberties of the citizens of the country.
• It obviates the Article 4 of the International Covenant on Civil and Political Rights (ICCPR) which permits that rights can only be limited “in time of public emergency which threatens the life of the nation” because it allows detention in peacetime as well.
• It does not provide any procedural protections such as to reduce detainees’ vulnerability to torture and discriminatory treatment; and to prevent officials’ misusing preventive detention for subversive activities.
• The long period of detaining (3 months) poses a threat of torture.
• Constitution of India allows the government to pass preventive detention laws against its own citizens in the name of national security and “maintenance of public order” as per Entry 9 of List I and Entry 3 of List III of the Constitution, this is quite unbelievable.
• In the absence of proper safeguards, preventive detention has been misused, particularly against the Dalits and the minorities.
• The Power of states to form similar legislations has been misused.
• Before a preventive detention case is brought before the High Court, a three member Advisory Board headed by a sitting High Court Judge is constituted by the government to examine whether the detention is justified or not. But, the proceedings of the Board are confidential except for that part of the report which expresses the opinion of the Board.

Opponents’ View to Preventive Detention

• The constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of State’s security; public order, disruption of national economic discipline, etc. are envisaged as a necessary evil to be administered under strict constitutional restrictions.
• India is a large country and many separatist tendencies against the national security and integrity existed and existing and a strict law is required to counter the subversive activities.
• The number of persons detained in these acts is not a very large and due attention is made before preventive detention.
• Having such kind of acts has a restraining influence on the anti-social and subversive elements.
• The state should have very effective powers to deal with the acts in which the citizens involve in hostile activities, espionage, coercion , terrorism, etc.
• The citizens of India have enjoyed the personal liberty for a long period since independence except two years of emergency.
• Such acts are required to deal with the antisocial elements such as terrorist attacks on innocent people which target lot of lives.

Conclusion:

The PDA is a “necessary evil”. In a country like India where a lot of subversive activities are being carried out by our own citizens, the philosophy of the Article 22 remains valid even today akin to the conditions prevalent in the country at the time of independence.