Our Indian constitution has given the right to each citizen of India from lower to upper castes/clan and from weaker to poorer. It also provides rights to the foreigner as wel,l though limited. But the great feature of Indian constitution is that it even provides rights to those who have been arrested or had been indulged in any anti-lawful act. Even they are given some rights to exercise complete fair and procedural legal system of Indian democracy.
It is given in Art 22 of Indian constitution prescribed in part III. This article provides for the protection against arrest and detention. It basically talks about the rights of an arrested person. Art 22 embodies procedural safeguards against arrest or detention. Article 22 was initially taken to the only safeguard against the legislature in regards of laws protected by Article 21 but now this position has been clearly changed.
Objective behind Art. 22 is to avoid any injustice. It is to correct or check the use of power by the executive in arresting or detaining a person. A point to be noted here is that Art22 talks only of the arrests/detentions which are of criminal nature or related to any criminal act and not of the arrest/detention related to the civil activities/matters. All those statutes that talk of civil arrests/detentions are not covered in this article.
Art 22 – Protection Against Arrest and Detention in Certain Cases
This article consists of 7 clauses with its further sub clauses. In this article, two types of detention are being talked about i.e. punitive detention (where arrest is because of commission of offense) and the preventive detention.
Article 22 does not apply to cases where arrest or detention is under a warrant of a court i.e. when a person is under judicial custody. It would also not be applied where there is no allegation or accusation of any actual or apprehended commission by a person of any offense.
Art 22(1) and 22(2) confer four rights upon a person who has been arrested.
Firstly, he shall not be detained in custody without being informed, as soon as be, of the ground of his arrest. In case, information is delayed, these must/should be some reasonable ground justified by circumstances.
Secondly, he shall have the right to consult and to be represented by a lawyer of his own choice.
Thirdly, every person who has been arrested has the right to be produced before the nearest magistrates within 24 hours of his arrest excluding the time of travel.
Fourth, he is not to be detained in custody beyond 24 hours without the authority of Magistrate.
22(1)- RIGHT TO BE INFORMED OF THE GROUNDS OF THE ARREST AND RIGHT TO BE DEFENDED BY LEGAL PRACTITIONER
Clause(1) of Art. 22 is an imperative requirement. The object is to enable the person arrested to know as to why and for what offence he has been arrested. It is to afford him the earliest opportunity to remove any mistake or misapprehension in the mind of arresting authority and also to know exactly what the accusation against him is, so that he can exercise his economy right properly.
It further provides that the person arrested shall not be denied the right to consult and to be defined by a legal practitioner of his choice. The right to consult be defended by a legal practitioner of his choice is guaranteed with a view to unable the defence to prepare for his defence. This right belongs to the arrested person not only at the pre-trial stage i.e. at the stage his production before the magistrate but also at the trial before a criminal court or before a special tribunal and whether the arrest is made under the general law or under a special statue.
ART 22(2) – RIGHT TO BE PRODUCED BEFORE THE NEAREST MAGISTRATE AND RIGHT NOT TO BE DETAINED IN CUSTODY BEYOND 24 HOURS WITHOUT THE AUTHORITY OF THE MAGISTRATE
The right to be produced before the nearest magistrate is guaranteed with a views to avoid any miscarriage of justice. It is with the object to correct and approve the executive action of arresting a person.
The words ‘nearest magistrate’ refers to a Magistrate acting under a judicial capacity as under sec- 167 CrPC and that magistrate found to be nearest immaterial of the fact whether the Magistrate has the jurisdiction or not or whether the Magistrate sits in the court at the time of arrested person being produced before him.
Art 22(4) to Art 22(7) relate to preventive detentions is mentioned in the Union List i.e. schedule(vii) Entry 9 as well as in centre and the states are free to have their own laws except that in case of a conflict, it’s the central law that will prevail.
The word ‘preventive’ is used in contradistinction to the word ‘punitive’. The object of preventive detention is not to punish a man for having done something but to intercept him from doing it.
Clauses (4) to (7) of Art 22 contain the procedure which are to be complied with when a person is detained under a law providing for preventive detention.
WHEN CAN THE PREVENTIVE DETENTION TAKE PLACE?
Legislation on Preventive Detention i.e. the central laws which provides for preventive detentions are National Security Act (NSA), 1980, Conservation of Foreign Exchange and Prevention of smuggling Activities Act, 1974 (COFE POSA), the Unlawful Activities Prevention Act (UAPA), 1967, the Prevention of Illicit Traffic in Narcotics Drugs and Psychotropic Substance Act, 1978.
Clause (4)(a) of Art 22 provides a limitation on legislative powers as to period of preventive detention. It prohibits against any law providing for detention for more than three months.
An advisory board has been constituted for the taking up matters of preventive detention and wh the detention is to be exceeded more than 3 months.
Advisory Board constitute of person who are or have been or are qualified to be High Court Judges. It consists of Chairman and not less than two members. The chairman shall be a serving judge of the appropriate High Court and the other members must be serving or retired judges of High Court.
Clauses(4)(b) lays down that the detention cannot exceed in any case beyond the maximum period prescribed by a law of Parliament for that class of detenu. In cases opinion not obtained from the Board within these months of detention, detention become illegal and detenu is entitled to be released.
Clause 5 of Art 22 gives two rights to detenu.
Firstly he has the right to be communicated the grounds on which the order of detention has been made against him and secondly is that’s to be done ‘as soon as it may be’.
Secondly, he should be given right to be represented by a legal practitioner
Clause 6 of Art 22 is an exception to clause (5).
It says that the facts which cannot be required to be disclosed are those which the detaining authority considesr to be against public interest. It is, therefore, for the detaining authority, in the exercise of its discretion to decide what facts cannot be disclosed.
Article 22 is an important feature and provides protection of the rights in the constitution. It is one of the significant fundamental right which backs the article 21 i.e. right to life and personal liberty. It is a safeguard against arbitrary and unnecessary detention.
But the right of preventive detention is highly misused by the influential and powerful. The police also in this case on the tip of these people in power use this right to defame and exploit those people who voice themselves against these corrupts. Preventive Detention, as peacetime measure, is in itself an abhorrent power and it is quite unreasonable to resort to such measures for administrative convenience. Preventive Detention as enshrined under Article 22 strikes a devastating blow to personal liberties. It is therefore clear that preventive detention is harmful to a secular democracy like India as it is extremely prejudicial to personal liberty.
So it is the responsibility of the administrators and the Legislators that they while framing law regarding preventive detention should take due care and Executive, while implementing should keep in mind the proper policies and its effects.
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