Introduction (Article 22 of the Indian Constitution)
Article 22 of the Indian constitution grants Protection against arrest and detention in certain cases. It means, Article 22 grants protection to the person who is arrested or detained. detention is of two types, Namely, punitive and preventive.
Punitive detention is to punish someone for an offence committed by him after trial and conviction during a court. preventive detention, on the opposite hand, means detention of someone without trial and conviction by a court. its purpose isn’t to punish someone for a past offence but to stop him from committing an offence within the near future.
Thus, preventive detention is just a precautionary measure and based on suspicion.
Article 22 of the Indian Constitution has two parts:-
- The first a part of article 22 of the Indian constitution confers the subsequent rights on a person who is arrested or detained below an ordinary law:
- Right to informed of grounds of arrest.
- Right to consult and be defended by a legal practician.
- Right to be produced before a magistrate among 24 hours, excluding the journey time.
- Right to be released after 24 hours unless the magistrate authorises any detention. These safeguards aren’t available to an alien or a person arrested or detained below preventive detention law. the supreme court also ruled that the arrest and detention within the first a part of Article 22 don’t cover arrest under the orders of a court, civil arrest, arrest on failure to pay the income tax. deportation of an alien. they apply only to an act of a criminal or quasi-criminal nature or some activity prejudicious to the general public interest.
- The second part of article 22 of the Indian constitution grants protection to persons who are arrested or detained below a preventive detention law. this protection is available to each citizen also as aliens and includes the following:
- The detention of a person cannot exceed three months unless an advisory board reports enough cause for extended detention. the board is to contain judges of a high court.
- The grounds of detention should be communicated to the detainee. however, the facts considered to be against the public interest needn’t be disclosed.
- The detainee should be afforded a chance to form a representation against the detention order.
Article 22 of the Indian Constitution also authorises the parliament to prescribe:
- The circumstances and therefore the classes the cases within which a person is detained for more than three months under a preventive detention law without getting the opinion of an advisory board
- The maximum period that a person can be detained in any classes of cases under a preventive detention law.
- The procedure to be followed by an advisory board in an enquiry.
The 44th amendment act of 1978 has reduced the period of detention while not without the opinion of an advisory board from 3 to 2 months. However, this provision has not yet been brought into force, hence, the original period of 3 months still continues. The Indian constitution has divided the legislative power with respect to preventive detention between the parliament and therefore the state legislatures.
The parliament has exclusive authority to create a law of preventive detention for reasons connected with defence, foreign affairs, and thus the protection of India. Both the parliament also because the state legislature will concurrently create a law of preventive detention for reasons connected with the security of a state, the upkeep of public order and therefore the maintenance of provides and services essential to the community.
The preventive detention laws made by the parliament are:-
- Preventive detention act, 1950. expired in 1969.
- Maintenance of internal security Act (MISA),1971. Repealed in 1978.
- Conservation of foreign exchange(trading of one currency with each other) and prevention of smuggling activities Act(COFEPOSA),1974.
- National security Act (NASA),1980.
- Prevention of black marketing(types of illegal trade or transaction) and maintenance of supplies of essential commodities Act(PBMSECA),1980.
- Terrorist and disruptive activities (prevention) act (TADA),1985. Repealed in 1995.
- Prevention of illicit traffic in narcotic drugs and psychotropic substances act (PITNDPSA),1988.
- Prevention of terrorism act (POTA), 2002. Repealed in 2004.
Article 22 Criticism of preventive detention
Preventive detention has been mentioned in the constitutional provisions which make it an exception as no other democratic country in the world has included preventive detention as an integral part of the constitution.
Preventive Detention has following limitations:-
- It affects the Individuals fundamental right of liberty and freedom of speech and expression.
- NCRWC said that preventive detention being detention without a trial is a negation of a rule of law and the principle of a fair trial.
- It could be misused by the government to settle political rivalries as we have seen in the case of national emergency 1975.
- The major victims of this provision or people from the marginalised section of society.
- It may lead to excessive power in the hand of police authorities leading to implicit criminalisation with potentially no accountability.
Hence, the provision of preventive detention should be used sparingly with predefined standard operating procedures to make sure that Due process of Law prevails and no victimisation takes place.