Neutralizing the ferocity of mighty State- safeguarding a detenu against tyranny of procedure but not shielding an offender from long arms of law- juris-conscience overshadows the ‘jurisdiction of suspicion’ as well as ‘jurisprudence of vengeance’.
Article 22. Protection against arrest and detention in certain cases
- 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;
- 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
- 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
- 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)
Analogous Provisions in other constitutions;
This Article corresponds to (i) the Sixth amendment to the Constitution of the U.S.A.; (ii) Article 34 of the Constitution of Japan 1946 (iii) Article 104 of the Constitution of Federal Republic of Germany; and (iv) the Common Law of England.
International Charter and Convention
This Article relates to (i) Articles 9 and 14 of the International Covenant on Civil and Political Rights 1966; (ii) Articles 5 and 6 of the European Convention of Human Rights 1950.
Clause (4) of Article 22 had been substituted by the Constitution (Forty –Fourth Amendment) Act 1978 and sub-clause (a) of clause (7) of Article 22 was omitted and sub-clauses (b) and (c) had been re-lettered as sub-clauses (a) and (b) of clause (7) with consequential change in sub-clause (b) by the Constitution (Forty-Fourth Amendment) Act 1978. The amendment of clauses (4) And (7) of Article 22 made under the Constitution (Forty-Fourth Amendment) Act 1978 has not yet been given effect to.
In A.K. Roy v. Union of India (Air 1982 SC 710 (para 52)), the Supreme Court, by majority view, held that the Central Government has unfettered discretion qua the question of bringing the provisions of section 3 of the 44th Amendment Act into force. It is not for the court to compel the Government to do that.
In view of this decision, the Central Government has chosen not to issue notification for commencement of section 3 of the 44th Amendment Act 1978 and, as such, the original provision as contained in the unamended Article 22 is still in force.
Article 22, inter alia, deals with preventive detention. Preventive detention is justified on the basis of primordial compulsions of need to maintain an order in the society, without which all rights and liberties would lose their meanings. This field of justification for preventive detention is also known as ‘jurisdiction of suspicion’. The words of Thomas Jefferson still resonate with force to justify this ‘jurisdiction of suspicion’; “To lose our country by scrupulous adherence to written law, would be to lose the law absurdly by sacrificing end to the means”.
However, preventive detention is a precautionary measure and no organ of State holds a carte blanche in the exercise of ‘jurisdiction of suspicion’ (UOI v Yumnam Anad M (2007)10 SCC 190).
In State of Maharshtra v Bhaorao Punjabrao Gawade (2008) 3 SCC 613, it was held that a ‘live link’ with the activities of a detenu and action of preventive detention is necessary and relevant.
The preventive detention and criminal proceedings are not parallel proceedings (Hardhan Saha v State of West Bengal, AIR 1974 SC 2154 ).High Court while dismissing writ to assail preventive detention could not direct Commissioner of Customs to lodge FIR in exercise of its power under 482 CR PC (Pooja Batra v UOI, (2009) 5 SCC 296 )
In National Security case i.e. A K Roy v UOI (AIR 1982 SC 710), while emphasizing on the fundamental rights of prisoners, the Supreme Court moved a step forward on the path of constitutional rights, while holding that unless the prisoners are not specifically deprived of their rights under the law applicable to them, their Fundamental Rights cannot be treated as erased.
It is also a settled proposition of law that the procedure prescribed for preventive detention must be strictly followed. If a deviation from procedure is made, the person detained is entitled to be released from detention (A K Gopalan v State of Madras, AIR 1950 SC 27). Even though the detention is valid ab initio, it may become illegal if the procedure is violated subsequently (State of Bombay v Atamram Shridharvidya, AIR 1951 SC 157)
Article 22 is not a complete code of constitutional safeguards relating to preventive detention. If Article 22 carries a specific provision in its fold, it cannot be shadowed or controlled by Article 21. But where Article 22 is silent in toto, Article 21 will apply (A K Gopalan v State of Madras, AIR 1950 SC 27).
In Nand Lal Bajaj v Union territory, New Delhi AIR 1981 SC 746, it was held that the procedure prescribed under Articles 21 or 22 must not be arbitrary and it must stand on pedestal of article 14.
It is now a well settled law that violation of procedure renders the detention of a person illegal (Abdul Karim v State of West Bengal, AIR 1969 SC 1028 ).
In the Additional Secretary to Government of India v Alka Subhash Gadia (1992) Supp (1) SCC 496, Supreme Court held that the detenu is entitled to get the order before execution. Thus the challenge at the pore execution stage of the detention order was allowed (Subhash POpatlal Dave v UOI, (2012) 7 SCC 533). However, though not exhaustive, the following grounds of challenge to the impugned orders of detention are upheld by Supreme Court;
- The impugned order is not passed under the Act mentioned in the order
- Order is sought to be executed against a wrong person
- It is passed for a wrong purpose
- It is passed on vague, extraneous and irrelevant grounds
- The passing authority is not competent
The Courts have in repeated challenges before it on the anvil of Article 22 have laid down various propositions of law which control the executive action .The violation of Article 22 is wrongful if ;
- Where the accused is denied opportunity to engage a lawyer (Janardhan Reddy v State of Hyderabad, AIR 1951 SC 217).
- Where the trial is held without informing the accused of the date fixed for the trial and without giving him an opportunity to communicate with his lawyer (Hans Raj v State, Air 1956 ALL 641).
- Where the trial is commenced immediately after a Court appointment of a defence lawyer (Bashira v State of UP, AIR 1968 SC 1313).
- Where the lawyer engaged by the accused is not allowed to appear by the Court (Tika v State of UP, (1975) Cr. LJ 337All)
- The right to be defended by lawyer is available for appeals (Tika v State of UP, (1975) Cr. LJ 337All)
- The object of punitive detention is to punish a person for what he has done, the object of preventive detention is to prevent him from doing something that falls within the entries 9 of the list 1 and 3 of List III. (A K Gopalan v State of Madras , AIR 1950 SC 27)
The following words and phrases need to be understood for a better grasp of the reach and scope of this Article:
- Arrest: The expression arrest appearing in the Article 22 of the Constitution of India is a comprehensive term which is designed to cover all cases in which a person is apprehended by a legal authority and is not confined to the cases in which a person is apprehended by or under orders of the civil or criminal court. Thus it covers all cases of punitive, preventive detention besides even protective detention (Ajaib Singh V State of Punjab AIR 1952 Punjab 309 (FB))
- Detention: The word detain may denote detention of a person against his or her will (Alamgir v State of Bihar AIR 1959 SC 436)
- As soon as may be: Even though no specific time is mentioned in the expression, the expression mandates utmost urgency and immediacy in compliance of the mandate. This phrase does not preempt the authority from explaining any delay to the satisfaction of the Court (Rajammal v State of Tamil Nadu AIR 1999 SC 684)
- Grounds: The grounds mean all basic facts and materials (khudiram das v State of West Bengal AIR 1975 SC 550) The grounds also include all materials besides facts (Sophia Gulam Mohammad Bham v State of Maharashtra AIR 1999 SC 3051)
- Defended: This expression clearly includes the exercise of right so long as the effect of arrest continues. The narrow meaning of the word ‘defended’ cannot be accepted (State of MP v Shobha Ram AIR 1966 SC 1910)
- Magistrate: Magistrate means judicial magistrate only.
- Provisions of law providing for preventive detention are as under:
- Communicate: The word ‘communicate’ is a strong word. If the grounds are only verbally explained to the detainee and nothing in writing is left with him which he understands then the purpose is not served and mandate in Article 22 (5) is infringed (Kubic Darusz v Union of India (1990) 1 SCC 568).
As regards the sweep of Article 22 is concerned, the following judicial dicta is relevant:
- Making it obligatory to constitute an Advisory Board to recommend confirmation of the detention where it is sought to continue beyond two months.
- A State law cannot authorise detention beyond the maximum period prescribed by the Parliament under the powers given to it under Cl. (7)
- The Parliament also cannot make a law authorising detention beyond two months without the intervention of an Advisory Board unless the law conforms to the conditions laid down in Cl. (7).
- Provision has also been made to enable the Parliament to prescribe the procedure.
- Apart from these enabling and disabling provisions certain procedural rights have been expressly safeguarded by cl (5) of Article 22. A person detained under a law of preventive detention has a right to obtain information as to the grounds of his detention and has also the right to make a representation protesting against an order of preventive detention. This right has been guaranteed independently of the duration of the period of detention. (Samir Chatterjee v. State of W.B., AIR 1975 SC 1165 (paras 3,5,7): (1975) 1 SCC 801.
Following cooper’s case (Cooper, R.C. v Union of India, 1970 (3) SCR 530: Air 1970 SC 564), it has also been held in some cases that a law under Article 22 must also pass the test of reasonableness under Article 19(1)(d) (State of U.P. v Mahant Singh, AIR 1986 Sc 207 (para 5); State if Rajasthan v. Shamsher Singh, AIR 1985 SC 1082; PRakash Chandra Mehta v. Commissioner v. Secretary, Govt. of Kerela , AIR 1986 Sc 687; Mohd. Yusuf Rather v State of J&K, Air 1979 SC 1925).
In Samatha v State, AIR 1997 SC 3297, the Supreme Court expounded the maxim ‘ Reddendo singula singulis’ while holding that the word ‘person’ is interpreted in its generic sense and its width cannot be curtailed by specific qualification of one species i.e. natural person, when it is capable to encompass in its ambit, natural persons, juristic persons, and constitutional mechanism of governance in a democratic set up.
Procedure in the context of arrest and detention is a substantive limb of criminal justice. In this particular context, procedure cannot be treated as an assistive appendage of the criminal justice system.
The following excerpt from poem ‘Prisoner’ by Robert Service, in its light strains, unfolds the iatrogenic pain of criminal law, which Article 22 endeavours to cure;
“….But why should my whole body be
Condemned to dungeon grim,
For what in fact was only the transgression of a limb?…”