Article 22: rights of the arrested person and preventive detention - Constitutional Law I

Check the judgment before you rely on this. Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The structure is the answer. Article 22 has two halves that work in opposite directions. Clauses (1) and (2) protect a person arrested under the ordinary law. Clauses (4) to (7) authorise preventive detention and expressly withdraw those protections. Clause (3) is the hinge that switches one off for the other.

1. Punitive and preventive detention distinguished

Make this distinction first in any answer.

Punitive detention is punishment after trial for an offence already committed. It looks backwards, requires proof beyond reasonable doubt, and follows conviction.

Preventive detention is detention without trial, to prevent a person from doing something in the future. It looks forwards, is based on suspicion and satisfaction rather than proof, and involves no charge, no trial and no conviction. India is unusual among democracies in permitting it in ordinary times, and not only during an emergency.

2. Clauses (1) and (2): the arrested person

A person arrested under the ordinary law has four rights:

the right to be informed of the grounds of arrest as soon as may be;
the right to consult and be defended by a legal practitioner of his choice;
the right to be produced before the nearest magistrate within 24 hours of arrest, excluding the time necessary for the journey; and
the right not to be detained beyond 24 hours without the authority of a magistrate.

Clause (3) then removes all of this from two classes of person: an enemy alien, and a person detained under a law providing for preventive detention.

3. Clauses (4) to (7): preventive detention

The safeguards that remain are considerably thinner:

Clause (4) — no detention beyond three months unless an Advisory Board of persons qualified to be High Court judges reports sufficient cause before the expiry of three months. Parliament may by law prescribe a longer period without reference to a Board in circumstances specified under clause (7).
Clause (5) — the grounds of detention must be communicated to the detenu as soon as may be, and he must be afforded the earliest opportunity of making a representation against the order.
Clause (6) — the authority need not disclose facts it considers against the public interest to disclose. This is the provision that most weakens clause (5), since a representation is difficult to make against grounds one cannot fully see.
Clause (7) — Parliament may prescribe the circumstances and classes of cases in which detention beyond three months is permissible without an Advisory Board, and the maximum period of detention.

Note that there is no right to a lawyer before the Advisory Board, and no right to cross-examine. The proceedings are not a trial.

Legislative power

Preventive detention appears in both the Union List (entry 9, for reasons connected with defence, foreign affairs and the security of India) and the Concurrent List (entry 3, for reasons connected with the security of a State, public order, and supplies and services essential to the community). The National Security Act, 1980 and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 are the familiar examples.

4. Gopalan, the emergency, and Maneka

The interpretation of Article 22 cannot be separated from that of Article 21.

In A.K. Gopalan v. State of Madras, 1950 INSC 13, AIR 1950 SC 27, the Preventive Detention Act, 1950 was challenged. The Court held that the fundamental rights were separate and self-contained: a law of preventive detention had only to satisfy Article 22, which was a complete code on the subject, and did not have to satisfy Articles 19 or 21 as well. “Procedure established by law” in Article 21 meant simply the procedure the legislature laid down. The result was a very narrow protection.

The consequences of that narrowness became clear in ADM Jabalpur v. Shivkant Shukla, 1976 INSC 129, (1976) 2 SCC 521. During the emergency, with the enforcement of Article 21 suspended by a Presidential order, the majority held that no person had locus to move a High Court for habeas corpus to challenge the legality of a detention. Justice H.R. Khanna dissented, holding that the right to life and liberty did not owe its existence solely to the Constitution. The decision is now universally regarded as wrongly decided, and it was expressly overruled in K.S. Puttaswamy v. Union of India, 2017 INSC 801, (2017) 10 SCC 1. Cite it as the case that shows what preventive detention can become when review is unavailable.

The correction came in Maneka Gandhi v. Union of India, 1978 INSC 16, (1978) 1 SCC 248, which rejected the compartment theory of Gopalan. Articles 14, 19 and 21 are a connected scheme, and a law depriving a person of personal liberty must prescribe a procedure that is fair, just and reasonable. A preventive detention law must therefore now answer to Article 21 as well as Article 22.

5. The Forty-fourth Amendment

The Forty-fourth Amendment, 1978 sought to reduce the maximum period of detention without an Advisory Board from three months to two, and to strengthen the Board. That particular change has not been brought into force. The same amendment did, however, bring into force the protection that Articles 20 and 21 cannot be suspended during an emergency — the direct legislative answer to ADM Jabalpur.

How this is examined

As short notes: rights of an arrested person, preventive detention, or the distinction between preventive and punitive detention. As an essay: discuss the constitutional safeguards against arbitrary arrest and detention, and consider whether they are adequate.

For the essay, do not simply list the clauses. Set out the safeguards, then note honestly what is missing — no lawyer before the Advisory Board, no disclosure of facts under clause (6), no trial and no charge — and use Gopalan, ADM Jabalpur and Maneka Gandhi to show how judicial attitude moved from deference to scrutiny. That movement is what the question is really about.

Now go and read the questions themselves: Constitutional Law I past question papers.