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PERSONAL LIBERTY

Table of Contents

(Art. 20, 21, 22)

PROTECTION AGAINST ARREST AND DETENTION[1]. (Art. 22).

QUESTION BANK.

1. What is the protection against arrest and detention?

Q.2. Discuss the constitutional right of the person arrested and detained otherwise under a law of Preventive detention.

SHORT NOTE.

Preventive detention.
Right to counsel.

SYNOPSIS

INTRODUCTION.
PROTECTION AGAINST ARREST UNDER ORDINARY LAW. [S. 22 Cl. (1) and (2)].
Right to be informed of grounds of arrest.
Right to consult and be defended by a lawyer.
Right to be produced before a Magistrate.
No detention beyond 24 hours without an order of the Magistrate.

III. PROTECTION AGAINST ARREST UNDER PREVENTIVE DETENTION LAWS [Art. 22 (4) to (7)-

Limitation as to the period of detention and provision for Advisory Board.
Communication of grounds of detention.
Right of representation.

I. INTRODUCTION:-

Art. 22 provides ‘procedural safeguards’ for depriving a person of his ‘personal liberty’ (i.e. while making an arrest) as mentioned under Art. 21. If these procedural requirements are not complied with, it would then be deprivation of personal liberty, which is not in accordance with the ‘procedure established by law’ under Art. 21.

The first two clauses of Art. 22 protect the person against arrest made under ordinary criminal law (i.e., other than the Preventive Detention Act), and the remaining clauses deal with the procedural requirements for making an arrest under the Preventive Detention Laws.

These safeguards are available to citizens and non-citizens, except for alien enemies.

II. PROTECTION AGAINST ARREST UNDER ORDINARY LAW[2]. (S. 22 Cl. (1) and (2)):-

The following are the safeguards available to a person arrested under ordinary law (i.e., not under Preventive Detention Law).

1. Right to be informed of grounds of arrest[3]:-

The person arrested has the right to be informed ‘as soon as possible’ of the grounds of his arrest to prepare for his defence. For the purpose of this rule, it is not necessary to furnish him with all details of the offence, but the information should be sufficient to enable him to understand why he has been arrested[4].

2. Right to consult and to be defended by a lawyer[5]:-

The person arrested has a right to consult and be defended by a legal practitioner.

In Hussainara Khatoon v. Home Secretary, Bihar

Supreme Court has held that it is the constitutional right of every accused person who cannot engage a lawyer and secure legal services for reasons like poverty, indigence or incommunicado situation to have free legal services. The state is under constitutional duty to provide a lawyer to such a person if justice is required.

3. Right to be produced before a Magistrate[6]:-

The arrested person has a right to be produced before the nearest Magistrate within 24 hours of his arrest. Such period is computed excluding the time necessary for the journey from the place of arrest to the Court of Magistrate.

4. No detention beyond 24 hours without an order of the Magistrate[7]:-

If detention is necessary beyond 24 hours, it is only possible under judicial custody.

III. PROTECTION AGAINST ARREST UNDER PREVENTIVE DETENTION LAWS[8] (Art. 22 (4) to (7)):-

The following procedural requirements are to be followed if the person is to be arrested under the Law of Preventive Detention. `Preventive Detention` means “detention of a person by an executive order to prevent that person (on suspicion) from endangering the state’s security, public order, etc. Such detention is generally without trial and conviction.”[9]. Some Examples of Preventive Detention Acts are-

Preventive Detention, Maintenance of Internal Securities Act 1971. (MISA 1971 repeated in 1978), National Security Act 1980 (NSA 1980), Terrorist and Disruptive Activities Act (Prevention) Act 1987 (TADA), POTA 2002, COFEPOSA 1974( Conservation of Foreign Exchange and Prevention of Smuggling Activity Act), PITNDPSA 1988 (Preventive Illicit Traffic in Narcotic Drugs of Psychotropic Substance Act 1985) etc.

The following safeguards are available to the person arrested under the Preventive Detention Act-

1. Limitation as to the period of detention and provision for the Advisory Board[10]:-

No person can be detained beyond three months unless the Advisory Board approves such detention.

2. Communication of grounds of detention[11]:-

The person detained has the right to know the grounds of his detention.

In Lallubhai Jogibhai Patel v. Union of India[12].

Facts– the detenue did not know English. But the grounds of detention were drawn in English, and the detaining order stated that the Police Inspector, while serving the grounds of detention, fully explained the grounds in Gujrati to the detenue. Still, no translation of the grounds of detention into Gujrati was given to the detenue.

Held– that there was no sufficient compliance with Art. 22 (5); hence, the detention order was invalid.

3. Right of representation[13]:-

The detenue should be afforded the earlier opportunity of making a representation (i.e. being heard) against the detention order. It means that the detenue should be furnished with sufficient particulars of grounds of his detention to enable him to make a representation which, on being considered, may give him relief.

In Rajan Warlikar v. State of Karnataka[14]

The Supreme Court held that Preventive detention is a serious invasion of personal liberty, and the Court should carefully monitor and enforce such meagre safeguards as the Constitution has provided under Art. 22 (4) to (7).

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[1] जुलमी अटकेपासून संरक्षण

[2] सर्वसाधारण फौजदारी कायदयाखाली अटकेपासून संरक्षण

[3] अटकेच्या कारणांची माहिती मिळण्याचा अधिकार

[4] In State of Madhya Pradesh V. Shobharam (AIR 1966 SC 1910) Supreme Court Observed – that, a personal liberty cannot be curtailed by arrest without informing him, as soon as is possible, as to reason of his arrest.

[5] वकिलांशी सल्ला-मसलत आणि वकिलांमार्फत बचावाचा अधिकार

[6] दंडाधिकारी यांचे समोर हजर करणेचा अधिकार

[7] दंडाधिकारी यांचे आदेषा षिवाय 24 तासापेक्षा जादा कालावधीसाठी अटकेत ठेवता येणार नाही.

[8] प्रतिबंधक कायदयाखाली अटकेपासून संरक्षण

[9] ^प्रतिबंधात्मक कारवाई अटक म्हणजे अशा स्वरुपाची अटक की ज्यामध्ये अटकेतील व्यक्तीला देषातील षांतता व सुव्यवस्थेचा भंग होणेपासून प्रतिबंध बसावा असा उद्देष असतो की जी प्रषासकीय आज्ञेप्रमाणे केलेली असते म्हणजेच प्रतिबंधित व्यक्तीने प्रत्यक्ष कोणताही गुन्हा केलेला नसताना सुध्दा भविश्यातील घटना टाळणेसाठी संषयावरुन अटक केलेली असते-

[10] कैद कालावधीवर मर्यादा

[11] कैदेच्या कारणांची माहिती

[12] AIR 1980 SC 2129

[13] बाजू मांडणेचा अधिकार

[14] [AIR 2001 Supreme Court 2303 ]