22. Protection against arrest and detention in certain cases
Preventive Detention is the the most contentious part of the scheme fundamental rights in the Indian constitutions. The Article 22 (3) of the Indian constitution provides that, if a person is arrested or detained under a law providing for preventive detention, then the protection against arrest and detention under Article 22 (1) and 22 (2) shall not be available.
Preventive detention should be carefully distinguished from punitive detention. Punitive detention is punishment for illegal acts done. Preventive detention on the other hand is action taken beforehand to prevent possible commitment of crime. Preventive detention thus is action taken on grounds of suspicion that some wrong actions may be done by the person concerned.
Preventive detention can however be made only on four grounds.
The grounds for Preventive detention are—
- security of state,
- maintenance of public order,
- maintenance of supplies and essential services and defence,
- foreign affairs or security of India.
A person may be detained without trial only on any or some of the above grounds. A detainee under preventive detention can have no right of personal liberty guaranteed by Article 19 or Article 21.
To prevent reckless use of Preventive Detention, certain safeguards are provided in the constitution.
- Firstly, a person may be taken to preventive custody only for 3 months at the first instance. If the period of detention is extended beyond 3 months, the case must be referred to an Advisory Board consisting of persons with qualifications for appointment as judges of High Courts. It is implicit, that the period of detention may be extended beyond 3 months, only on approval by the Advisory Board.
- Secondly, the detainee is entitled to know the grounds of his detention. The state however may refuse to divulge the grounds of detention if it is in the public interest to do so. Needless to say, this power conferred on the state leaves scope for arbitrary action on the part of the authorities.
- Thirdly, the detaining authorities must give the detainee earliest opportunities for making representation against the detention. These safeguards are designed to minimize the misuse of preventive detention. It is because of these safeguards that preventive detention, basically a denial of liberty, finds a place on the chapter on fundamental rights. These safeguards are not available to enemy aliens.
Meaning of Article 22
The procedural safeguards against arbitrary arrest and detention, provided in clause (1) and (2) of Article 22 are that no person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds for such arrest. No such persons shall be denied the right to consult, and to be defended by, a lawyer of his choice. And, every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24-hours of arrest.
The above safeguards are not available to an enemy, alien or a person arrested or detained under a law providing for preventive detention. The Constitution, however, imposes certain safeguards against the abuse of power.
Preventive Detention Law in Article 22
The Article 22 assumes the possibility of law for preventive detention. If there is no such law, the Executive cannot, of its own responsibility, detain any person in custody. Any law relating to preventive detention must in order to be valid, satisfy the requirements of clauses (4) to (7) of this Article.
The Fundamental Rights, guaranteed by clauses (4) to (7) to persons detained under any law for prevention detention, relate to the maximum period of detention, the provision of an Advisory Board to consider and report on the sufficiency of the cause for detention, the right to be informed of the grounds of detention and the right to have the earliest opportunity of making a representation against the order of detention.
The power of preventive detention is thus hedged in by diverse procedural safeguards to minimise as much as possible the danger of its misuse. It is for this reason that this Article has been given a place in the chapter on Fundamental Rights.
Amendments to Article 22
The Preventive Detention Act, 1950 was, passed by the Indian Parliament but it was a temporary Act, originally passed for one year only. Several times since then the term of the Act was extended until it expired in 1969.
The revival of anarchist forces led Parliament to enact a new Act, named the Maintenance of Internal security act (MISA) in 1971, having provisions similar to those of the Preventive detention Act, 1950. In 1974, Parliament passed the Conservation of Foreign Exchange and Prevention of Smuggling activities Act (COFEPOSA), aimed at anti-social activities like smuggling, racketing in foreign exchange and the like. MISA was repealed in 1978 but COFEPOSA still remains.
The Janata Party Government sought to alleviate the rigours of the procedure for preventive detention, by effecting changes in Clause (4) and (7) of Article 22 by enacting the Constitution 44th Amendment Act in 1978. Paradoxically, however, before any such notification could be issued, the Janata Government had its fall and Indira Gandhi returned to power in January, 1980. So, her government refused to issue such notifications. As a result, the original clauses relating to Preventive Detention in Art.22 subsist till today.
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