Right Of Arrested Persons And Preventive Detention (Article 22)
A person can be arrested after commission of a crime or he can also be detained on suspicion of committing a crime. Article 22 deals with rights of persons who have been arrested after alleged commission of a crime or who have been detained on suspicion of crime.
What are rights of arrested persons ?
Article 22 (1) and Article 22 (2) deal with rights of persons who have been arrested after alleged commission of crime.
As per Article 22 (1) every person who is being arrested has to be informed about the grounds on which he or she is being arrested. Further every such person has right to consult legal practitioner and right to be defended by legal practitioner.
Supreme Court in D K Basu Vs. State of West Bengal (AIR 1997 SC 610) has issued detailed guidelines which have to be followed by police.
As per Article 22 (2) every arrested person has to be presented before magistrate within twenty four hours of arrest. Time taken in journey from place of arrest to the court of magistrate has to be excluded. No person can be detained in the custody without authority of magistrate.
What are safeguards against Preventive Detention ?
Preventive Detention means detention of a person who has not committed a crime but there is suspicion that he may commit a crime. Thus, Preventive detention is serious invasion over personal liberty of a person. Preventive Detention has a colonial history. Rowlatt Act, 1919 has elements of preventive detention, protest against which led to jalliawallah bagh massacre. Public Safety Act , 1928, was also having elements of preventive detention, which has been protested by Bhagat Singh.
All the safeguards which have been provided to persons during arrest under clauses (1) and (2) of Article 22 like production of accused before the Magistrate within 24 hours, right to consult legal practitioner do not apply persons who have been detained under law providing preventive detention.
Certain safeguards have been provided under Article 22 (4) and Article 22 (5).
Provision for Advisory Board
Under Article 22 (4) any law providing of preventive detention cannot provide for preventive detention more than three months unless an advisory board consisting of member eligible to become judge of High Court gives opinion before expiration of three months that there are sufficient cause for detention.
Information of Ground of Arrest
Under Article 22 (5) , an authority making order for detention of a person under any law providing for preventive detention has to inform the detained person grounds on which his/her detention has been ordered. Article 22 (6) provides that the authority making order is not required to disclose ground of detention if the same is against public interest.
Opportunity of Representation
The detained person has to be given an opportunity to make representation against detention order before the authority which has passed order for detention.
Power of Parliament to make laws regarding period of Detention
Article 22 (7) authorizes the parliament to make laws for detention for more than three months without obtaining opinion of the advisory board. Article 22 (7) also authorizes Parliament to make laws prescribing maximum period of detention. Article 22 (7) also authorizes Parliament to make laws prescribing procedure followed by Advisory Board.
PREVENTION DETENTION LAWS IN INDIA
Parliament and State Legislature have enacted a number of Preventive Detention Laws. President can also make detention Preventive Detention Laws by issuing ordinance. Some of Preventive Detention Laws enacted by the Parliament are as under:
- Preventive Detention Act, 1950
- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA)
- Maintenance of Internal Security Act (MISA)
- National Security Act, 1980 (NSA)
- Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980
- Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988
- Terrorism and Disruptive Activities (Prevention) Act, 1987 (TADA)
- Prevention of Terrorism Act, 2002 (POTA)
Under Maintenance of Internal Security Act many persons had been detained. In A D M Jabalpur Vs. Sivakant Shukla (1976 AIR 1207) detentions have been challenged before the Supreme Court. Supreme Court held that Article 21 is suspended when emergency is proclaimed and right to approach Supreme Court under 32 and High Court under 226 is also suspended. Thus persons detained were almost left remedyless. Vide 44th Amendment Constitution was amended to incorporate that Article 20 and 21 cannot be suspended even under proclamation of emergency. Finally, in K. S Puttaswamy (Retd.) Vs. Union of India (2017) 10 SCC 1 the Supreme Court overruled ADM Jabalpur case.
In A K Roy Vs. Union of India (1982)2SCR272 , the National Security Act has been challenged before the Supreme Court., which upheld the validity of the Act.
Conclusion
It seems that rights of persons who have been arrested after commission of crime are better protected in comparison to persons who are detained on suspicion. A person who are arrested has to be produced before Magistrate within 24 hours. He can apply for bail through legal practitioner. He cannot be kept in judicial custody without permission of Magistrate. On the other hand safeguards available to a person in case of preventive detention is very limited. A person can be kept in preventive detention for six months to a year as provision of applicable preventive detention laws without any trial. Even the Detenue does not have right to legal representation before the Advisory Board. A detenue can only invoke writ jurisdiction of High Courts and the Supreme Court to get any relief.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.