Right of Freedom: Article 22 | Constitutional Law - CLAT PG PDF Download

Rights of Accused (Article 22) 

The Indian Constitution upholds the principles of  democracy  and  rule of law  , ensuring that even those accused of crimes are treated with fairness and humanity. The concept of  free and fair trial  is a constitutional commitment, reflecting the core principle of  natural justice  in criminal law. This means that the accused, regardless of their guilt, deserves humane treatment and protection against arbitrary actions.
Key Points: 

• The  prosecution  must prove the accused's guilt beyond a reasonable doubt, standing on its own without relying on assumptions.
• The accused has certain rights during  investigation  ,  enquiry  , or  trial  , including protection against arbitrary or unlawful arrest.
• The Constitution prioritizes the principle of  innocent until proven guilty  , emphasizing that it is better to let many guilty persons go free than to punish an innocent person.
• Article 20 ensures that no one can be convicted for an offense except under a law that was in force at the time of the alleged crime, and that the penalty cannot exceed what was applicable at that time.
• Article 21 has been interpreted broadly to provide the accused with  humane treatment  in custody, aligning with a reformative approach.
• Article 22 guarantees rights such as being informed of the grounds for arrest and the right to consult and be defended by a legal practitioner of choice. However, these rights do not apply to aliens.
• These rights are inherent and cannot be altered or changed, reflecting the fundamental principles of justice and fairness in the legal system.

Case Laws Illustrating Rights of the Accused 

•  Nandini Sathpathy v. P.L. Dani (1978)  : This case established that the accused has the right to remain silent during interrogation, and no one can forcibly extract statements from them.
•  D.K. Basu v. State of West Bengal (1997)  : The Supreme Court laid down mandatory guidelines for arrests and detentions, emphasizing the need for clear identification of arresting authorities, informing family members about the arrest, and allowing the arrestee to meet their lawyer during interrogation.

Preventive Detention Laws (Article 22) 

Preventive detention involves detaining a person to prevent them from committing a potential crime. It is a contentious aspect of fundamental rights in the Indian Constitution. Article 22(3) states that individuals detained under preventive detention laws do not have the protections against arrest and detention provided under Articles 22(1) and 22(2).

 History of Preventive Detention Law and Position in Other Countries 

• After gaining independence in 1947 and adopting the Constitution in 1950, the framers, despite suffering from preventive detention laws, included them in the Fundamental Rights chapter of the Constitution. The first Preventive Detention Act was enacted on February 26, 1950, primarily targeting political dissent.
• Unlike India, other civilized countries, including Britain, did not impose preventive detention laws during peacetime. Even during World War II, most European countries and the USA did not have such laws. In Britain, preventive detention was introduced only under extreme circumstances.
• The Indian Constitution allows preventive detention without trial, a practice not seen in many democratic societies. The debates in the Constituent Assembly reflected a general consensus on the necessity of preventive detention, with attempts to incorporate safeguards against its misuse.
• Alladi Krishnaswamy Ayyar, a distinguished jurist, viewed preventive detention as a necessary evil to protect the Constitution and individual liberty. However, the members of the Assembly aimed to limit its abuse through safeguards, which were not fully achieved.
• Preventive detention laws have been criticized for their potential misuse, and there have been calls to scrap such laws entirely. However, given the current political landscape, such a drastic change seems unlikely in the near future.

Objectives of Preventive Detention 

The main objective of preventive detention is to prevent the detainee from committing actions harmful to the state. The grounds for preventive detention include:

•  Security of the State 
•  Public Order 
•  Foreign Affairs 
•  Essential Services to the Community 

 Case Study: Mariappan vs. The District Collector and Others 

In this case, it was clarified that the purpose of detention and detention laws is not to punish but to prevent the commission of certain offenses.

 Grounds for Preventive Detention 

• Preventive detention can only be based on the following grounds:
•  Security of the State 
•  Maintenance of Public Order 
•  Maintenance of Supplies and Essential Services 
•  Defense 
•  Foreign Affairs 
•  Security of India 

A person can be detained without trial only on one or more of these grounds. Detainees under preventive detention do not have the right to personal liberty guaranteed by Articles 19 or 21.

 Safeguards Provided in the Constitution 

• To prevent the misuse of preventive detention, the Constitution provides certain safeguards.
• Firstly, a person can be taken into preventive custody for an initial period of three months. If the detention is to be extended beyond three months, the case must be referred to an Advisory Board comprising individuals qualified to be appointed as judges of High Courts. The extension of detention beyond three months requires approval from the Advisory Board.
• Secondly, the detainee has the right to know the grounds of their detention. However, the state may withhold the grounds if it is in the public interest to do so. This power granted to the state leaves room for arbitrary actions by the authorities.
• Thirdly, the detaining authorities are obligated to provide the detainee with the earliest opportunity to make representations against the detention.
• These safeguards aim to minimize the misuse of preventive detention. Despite being a denial of liberty, preventive detention finds its place in the chapter on fundamental rights due to these safeguards. It is important to note that these safeguards are not applicable to enemy aliens.

Preventive Detention in India: A Constitutional Tyranny 

• India is one of the few countries whose Constitution permits preventive detention during peacetime without the basic safeguards that are essential for protecting fundamental human rights.
• For instance, the European Court of Human Rights has long held that preventive detention, as envisaged in the Indian Constitution, is illegal under the European Convention on Human Rights, irrespective of the safeguards enshrined in the law.
• The South Asia Human Rights Documentation Centre (SAHRDC), in its submission to the National Commission to Review the Working of the Constitution (NCRWC) in August 2000, recommended the deletion of those provisions in the Constitution of India that explicitly allow for preventive detention.
• Specifically, under Article 22, preventive detention can be implemented indefinitely - whether in peacetime, non-emergency situations, or otherwise.
• The Constitution explicitly permits the detention of an individual without charge or trial for a maximum of three months and denies detainees the rights to legal representation, cross-examination, timely or periodic review, access to the courts, or compensation for unlawful arrest or detention.
• In summary, preventive detention, as enshrined in Article 22, significantly undermines personal liberties and contradicts international standards.
• Article 4 of the International Covenant on Civil and Political Rights (ICCPR), which India has ratified, allows for the derogation from certain personal liberties during a state of emergency.
• However, the Indian Government has not invoked this privilege, nor could it, as the current situation in India does not meet the standards set forth in Article 4.
• If preventive detention is to remain a part of India's Constitution, it is crucial that its use is confined to specific, limited circumstances and includes adequate safeguards to protect the fundamental rights of detainees.
• Particular procedural protections are urgently needed to:
• Reduce detainees' vulnerability to torture and discriminatory treatment.
• Prevent officials from misusing preventive detention to punish dissent from the Government or from majority practices.
• Prevent overzealous government prosecutors from subverting the criminal process.

Recommendations for Reform 

•  Entry 3 of List III  of the Constitution of India, which permits Parliament and state legislatures to enact preventive detention laws during peacetime for "the maintenance of public order or maintenance of supply and services essential to the community," should be removed.
• While preventive detention might be justifiable in the interest of national security as outlined in Entry 9 of List I of the Constitution, there is no compelling reason to allow this extraordinary measure in the circumstances identified in Entry 3 of List III.
• Due to the lack of clear guidance from the Constitution, courts have appeared vague and ineffective in governing the implementation of preventive detention laws. If preventive detention is to remain in the Constitution, it is essential to include well-defined criteria specifying the limited circumstances under which preventive detention powers may be exercised. These criteria should allow for meaningful judicial review of the official's actions.
• According to Article 22 (2), every arrested individual must be presented before a magistrate within 24 hours of their arrest. However, Article 22 (3) (b) exempts detainees held under preventive detention from Clause (2), and this exemption should be abolished in the interest of human rights.
• Currently, individuals detained under preventive detention laws may be held without any form of review for up to three months, which is an unacceptably long period in custody, especially given the real risk of torture.
• At the very least, the Government should implement Section 3 of the Forty-fourth Amendment Act, 1978, which would reduce the allowable period of detention to two months. Although this would still violate international human rights law, it would at least decrease the instances of torture significantly.
• The review procedure established by the Advisory Board for preventive detention involves an executive review of executive decision-making. The lack of judicial involvement violates the right of detainees to appear before an "independent and impartial tribunal," contrary to international human rights law, including the ICCPR (Article 14 (1)) and the Universal Declaration of Human Rights (Article 10).
• The Constitution should be amended to establish clear criteria for officials to follow, and compliance with these criteria should be subject to judicial review.
• Currently, the Constitution stipulates that the detaining authority must refer to the Advisory Board if detention is intended to extend beyond three months. There is no provision for the Advisory Board to consider a detainee's case more than once.
• Periodic review is an essential protection to ensure that detention is "strictly required" and fairly administered. Therefore, the Constitution should mandate regular review of the conditions and terms of detention.
• Detainees must be provided with detailed and prompt information regarding the grounds of their arrest. Presently, the detaining authority is only required to communicate the grounds of detention to the detainee "as soon as may be" after the arrest.
• Article 9 (2) of the ICCPR states that "[a]nyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him." Detainees should be guaranteed a minimum period in which the grounds are promptly communicated to them, and they should receive information sufficient to allow them to challenge the legality of their detention.
• Individuals held under preventive detention must be granted the right to legal counsel and other basic procedural rights guaranteed by Articles 21, 22 (1), and 22 (2) of the Constitution.
• Article 22 (1) of the Constitution ensures the right to legal counsel, but Article 22 (3) (b) denies this right to individuals arrested or detained under preventive detention law.
• Relying on these provisions, the Supreme Court, in A.K. Roy v. Union of India, stated that detainees do not have the right to legal representation or cross-examination during Advisory Board hearings.
• Contrary to India's constitutional practice, the U.N. Human Rights Committee has asserted that all individuals arrested must have immediate access to counsel.
• Article 22 (3) (b) of the Constitution, which strips detainees of almost all procedural rights during Advisory Board hearings, should be repealed.
• Article 9 (5) of the ICCPR grants the right to compensation for unlawful detention, except during public emergencies. A similar provision creating a right to compensation is included in Section 38 of the Prevention of Terrorism Bill of 2000 (although the bill effectively reconstitutes the lapsed Terrorist and Disruptive Activities Prevention Act, TADA).
• The Law Commission, tasked with reshaping antiterrorism legislation, noted that Supreme Court orders have established that people are entitled to compensation, effectively overriding India's reservation to Article 9 (5) of the ICCPR.
• In this context, the Government of India should promptly withdraw its reservation on Article 9 (5) of the ICCPR and include a Constitutional provision guaranteeing the right to compensation.</