PROTECTION AGAINST ARREST AND DETENTION

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Introduction
          Article 21 of the Constitution requires some procedure established by law to deprive a person of his life or personal liberty. However, the procedure must not only be provided by a law, but it must also be just, proper, due, fair, appropriate and reasonable. Art. 22 of the Constitution contains some minimum procedural requirements which must be complied with by such procedure.
          the protection of the individual from operation and abuse by the police and other enforcement officers is a major interest in a free society. Denying a person of his liberty is a serious matter. In view of this, it can be said that an illegal arrest of a person causes incalculable harm by way of loss of his reputation.
In Deepak Bajaj v. State of Maharashtra, (AIR 2009 SC 628), the Court held that, liberty of a person is a precious fundamental right under Article 21 and should not be lightly transgressed. If a person against whom preventive detention order has been passed comes to the Court at the pre-execution stage and satisfies Court that detention order is clearly illegal, there is no reason why Court should stay its hand and compel petitioner to go to jail, even though he is bound to be released subsequently.
          In State of M.P. v. Shobharam, (AIR 1966 SC 1910), the Supreme Court said that, Art. 22 does not apply to cases where arrest or detention is under a warrant of a Court. In such case, such arrest or detention is according to the procedure established by law.
Object of Article 22 :
          The object of Art. 22 is to safeguard rights of the people and to avoid any miscarriage of justice on the part of the State. It has provided certain procedural safeguard to an individual against the arbitrary power of the executive. Here object is to check or correct the use of power by the executive in arresting or detaining a person.
Protection against arrest and detention (Art. 22) :
          Art. 22 titled as ‘protection against arrest and detention in certain cases’. It incorporates procedural safeguards against arrest or detention which are available to an individual in following two cases.
(1) Where the arrest is made under the ordinary law relating to commission of offences
(2) Where the detention is made under a law providing for preventive detention.
1.     Safeguards against arrest – Art. 22 (2) & (2) :
Clauses (1) and (2) of Art. 22 guarantee four rights to a person who is arrested for any offence under an ordinary law.
(a)  Right to be informed, as soon as may be of the grounds of the arrest.
(b) Right to consult and to be defended by a legal practitioner of his choice.
(c)  Right to be produced before the nearest magistrate within 24 hours of arrest.
(d) Right not to be detained but custody beyond 24 hours without the authority of the magistrate.
In Hussainara Khatoon v. State of Bihar, (AIR 1979 SC 1977), the Supreme Court has held that, if the accused person is unable to engage a lawyer because of poverty, then State should provide free legal aid to him at the expenses of the State. Right to free legal aid is a fundamental right under Art.
In a notable judgment in Joginder Kumar v. State of U.P., (AIR 1994 SC 1349), the Supreme Court laid down guidelines governing arrest of a person during the investigation. The Court has held that, the person is not liable to be arrested merely on the suspicion but there must be some reasonable justification in the opinion of the Police officer.
Before that, in a significant judgment in C.B.I. v. Anupam Kulkarni, (AIR 1992 SC 1768), the Supreme Court held that, there cannot be detention of a person in police custody after the expiry of fifteen days. If the investigation is not completed within 90 days in case of serious offences or 60 days in case of other offences, then the accused has to be released on bail as provided under section 167 (2) of Criminal Procedure Code.
Exception – Art. 22 (3):
Clause 3 of Art. 22 provides that the safeguards guaranteed by clauses (1) & (2) of Art. 22 are not available to the following persons.
(1) any person who is for the time being is an enemy alien.
(2) any person who is arrested or detained under any law providing for preventive detention.
Safeguards against detention – Art. 22 (4) to (7) :
          Clauses (4) to (7) of Art. 22 provide procedure which is to be followed if a person is arrested under the law of preventive detention. Preventive detention means the detention of a person without trial. It is contradistinction to the word ‘punitive’. It is not a punitive, but a precautionary measure which can be resorted with a view to prevent commission of an offence in future. It any person is causing danger to the society, then by detaining him he may be prevented from doing it.
Object :
          The object of preventive detention is not to punish a man for having doing something, but to intercept him before he does it or to prevent him from doing it. The satisfaction of the concerned authority is a subject to satisfaction in such a matter.
          Clauses (4) to (7) guarantee the following safeguards to a person arrested under the prevention detention law.
a.      Review by Advisory board – Art. 22 (4) :
          Clause (4) provided that, no law providing for prevention detention shall authorize the detention of a person for a longer period than three months unless the Advisory Board constituted of a person, who are or have been qualified to be High Court Judge has reported before the expiration of the said period of three months that there is, in his opinion, sufficient cause for such detention. By the 44th Amendment Act, 1978, the maximum period of three months has been reduced to two months.
In A. K. Roy v. Union of India, (AIR 1982 SC 710), Court held that the function of the Advisory Board is merely to report on the point whether there is sufficient cause for the detention. The Board is not concerned as to how long the person should be detained.
b.     Rights of the detenu – Art. 22(5) :
          Art. 22 (5) has given two important rights to detenu –
(1) The authority making the order of detention must as soon as may be communicate to the person detained the grounds of his detention.
(2) The detenu must be given the earliest opportunity of making a representation against the order of deteintion.
          Thus, clause (5) imposes an obligation on the detaining authority to furnish to the detenu the grounds of the detention as soon as possible and he must have earliest opportunity of making a representation against the order of detention. The grounds of detention should be very clear and easily understandable by the detenu.
In Lallubhai Patel v. Union of India, (AIR 1981 SC 728), the detenu did not know English, but was acquainted only with Gujarathi language. Supreme Court held that, no translation on the grounds of detention into Gujarathi to detenu is violative of Art. 22(5) and hence the order of detention was invalid.
          Again in Kubic Darinsz v. Union of India, (AIR 1990 SC 605), the Court said that if the grounds are only verbally explained to the detenu and nothing is writing is left with him in a laugnage which he understands, the purpose of Art. 22 (5) is not served.
c.      Exception – Art. 22(6)
          Clause (6) of Art. 22 is an exception to clause (5). According to clause (6), disclosure of the facts which are considered to be against the public interest may not be furnished to the detenu. Thus, detaining authority is having discretion whether to disclosure the facts or not.
          In State of Rajasthan v. Samshersingh, (AIR 1985 SC 1091), the Court held that, the detenu is not entitled to the disclosure of confidential sources of information used in the ground for making of the order of detention.
d.     Power of Parliament – Art. 22 (7) :
          Art. 22 (7) is exception to clause (4). According to Art. 22 (7), Parliament may be law prescribe the circumstance under which a person may be detained for a period longer than three months. It is to be noted that, clause (7) empowers only the Parliament and not a State legislature.
Conclusion :
          Protection of right to life and personal liberty of every citizen is one of the important object of every democratic State. By providing certain procedural safeguards against the action of executive, Art. 22 has made an attempt to keep the flag of humanity waving all the time in India. It emphasizes that, some human rights are so basic and inalienable that no one can abridge or take it away from an individual. Every executive action according to Art. 22, should be consistent with the law. If it is not, then it cannot be justified under Art. 21.


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