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Chapter 5- Rights of accused, under trial prisoners,

convicts and their constitutionality

The Indian Constitution is a piece of beauty as it embodies the best of the American
Constitution, the unwritten English Constitution as also the Declaration of Human
Rights. The protection of provisions enshrined in the Constitution is available to
accused, undertrial prisoners and even to convicts in jails. The convicts in jails are not
by mere reason of their conviction deprived of all the fundamental rights which they
otherwise possess. Following the conviction of a convict is put into the jail he may be
deprived of fundamental freedoms like the right to move freely throughout the territory
of India or the right to ‘practice’ a profession. But the Constitutional guarantees to them
other freedom like the right to acquire, hold and dispose of property for the existence of
which detention can be no impediment. Likewise, even a convict is entitled to the
precious right guaranteed by the Art. 21 and he shall not be deprived of his life or
personal liberty except according to procedure established by law.
Part III of the Indian Constitution nevertheless, is the protector and safeguarding factor
of the Rights of accused, undertrial prisoners and convicts. The main provisions
regarding the rights of these peoples are enshrined under Articles 14, 19, 20, 21 and 22.

1. Protection in respect of conviction for offences under Constitution:


Article 20 contains some internationally recognized safeguards when a person
has to face a criminal action, which may ultimately deprive him of his life and
liberty. Thus, Arts. 20 and 21 are very closely related to each other. Article 20 of
the Indian Constitution provides the following safeguards to the persons accused
of crimes:-
A. Ex post facto law: Clause (1) of Article 20
B. Double jeopardy (autrefois convict): Clause (2) of Article 20
C. Prohibition against self-incrimination: Clause (3) of Article 20

A. Protection against Ex Post Facto law: Though in Clause (1) of Art. 20 the
expression ex post facto laws has not been used, but it has been understood to
contain this provision. Clause (1) of article 20 of the Indian Constitution
provides that “no person shall be convicted of any offence except for violation
of a law in force at the time of the commission of the act charged as an offence,

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or be subjected to a penalty greater than that which might have been inflicted
under the law in force at the time of the commission of the offence.

The clause also conform the following test of two cardinal principles of criminal
liability i.e. to say-

a. Nullum crimen sine lege,

b. Nulla poena sine lege.

According to the first principle, no one is held criminally liable unless he has done an
act which is expressly forbidden under the existing criminal law of the land and has a
reprehensible state of mind to do it.

The second principle suggests that no one can be punished for an act unless it is made
punishable under the law.

Thus, it is the cardinal principle of criminal law that the law of crime does not permit ex
post facto legislation. That is to say, all those acts which may lead to punishment shall
be duly notified and no one can be punished for an act which is not listed as crime at the
time of its commission, but has become so subsequently.

Article 20 (1) speaks for the right against conviction and imposes a limitation on the
law-making power of the Legislature. Ordinarily, a Legislature can make prospective as
well as retrospective laws, but clause (1) of Article 20 prohibits the Legislature to make
retrospective criminal laws. This is also in conformation with the cardinal principle of
criminal law that the law of crime does not permit ex post facto legislation. But under
this clause there is nothing which will prevent legislature to inflict civil liability
retrospectively.

The American Constitution also contains a similar provision prohibiting ex post facto
laws both by the Central and the State Legislatures. It contains ‘No bill of attainder or
ex post facto law shall be passed’. (vide Article 1, S.9, Clause 3 of American
Constitution). This provision had to be made because the legislature being competent to
make retrospective laws, it was felt that but for this a ‘bill of attainder’ may be passed,
which virtually means inflicting of punishment without trial.

It was held by the higher judiciary that the protection afforded by clause (1) is available
only against conviction or sentence for a criminal offence under ex post facto law and
not against the trial. Under the American law the prohibition applies even in respect of

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trial. The guarantee in American Constitution is thus wider than that under the Indian
Constitution.

The first part of the clause provides that “no person shall be convicted of any offence
except for violation of ‘law in force’ at the time of the commission of the act charged as
an offence”. While the second part protects a person from ‘a penalty greater than that
which he might have been subjected to at the time of the commission of the offence’.

Kedar Nath v State of West Bengal (AIR 1953 SC 404) is the leading case on subject, in
which, the accused committed an offence in 1947, which under the Act then in force
was punishable by imprisonment or fine or both. The Act was amended in 1949 which
enhanced the punishment for the same offence by an additional fine equivalent to the
amount of money procured by the accused through the offence. The Supreme Court
held that the enhanced punishment could not be applicable to the act committed by the
accused in 1947 and hence set aside the additional fine imposed by the amended Act.

However, the accused can take advantage of the beneficial provisions of the ex post
facto law/s. the rule of beneficial construction requires that ex post facto law should be
applied to mitigate the rigorous (reducing the sentence) of the previous law on the same
subject. Such a law is not affected by Art. 20 (1). (T. Baral v. Henry An Hoe, (1983
) 1 SCC 177).

B. Protection against double jeopardy (principles of autrefois convict): Clause (2)


incorporates the principles of autrefois convict, which is rooted in the principles
and maxims of the English Law, as laid down in R. v. Miles, ((1890)24 QBD
423) namely, “….. that where a person has been convicted of an offence by a
Court of competent jurisdiction the conviction is a bar to al further criminal
proceedings for the same offence.
Article 20 (2) of our Constitution says that “no person shall be prosecuted and punished
for the same offence more than once”. This clause embodies the common law principle
of nemo debet vis vexari which means that no man should be put twice in peril for the
same offence. If he is prosecuted again for the same offence for which he has already
been prosecuted and punished, he can take complete defence of his former acquittal or
conviction.
The American Constitution incorporates the same rule in Fifth Amendment that “no
person shall be twice put in jeopardy of life or limb”. The protection under this clause is
narrower than that given in American and British laws. Under the American and British
Constitution the protection against double jeopardy is given for the second prosecution

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for the same offence irrespective of whether an accused was acquitted or convicted in
the first trial.
It however deserves to be noted that Clause (2) does not take care of autrefois acquit, as
to get protection of this clause a person has to be not only prosecuted but punished also.
Thus under Article 20 (2) the protection against double punishment is given only when
the accused has not only been ‘prosecuted’ but also ‘punished’, and is sought to be
prosecuted second time for the same offence.

The similar kind of provision has been inserted in S. 300 of Code of Criminal
Procedure, 1973. (S. 300: Person once convicted or acquitted not to be tried for same offence:
(1) Person once convicted or acquitted not to be tried for same offence.(1) A person who has once
been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such
offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for
the same offence, nor on the same facts for any other offence for which a different charge from the
one made against him might have been made under sub-section (1) of section 221, or for which he
might have been convicted under sub-section (2) thereof.
(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the
State Government, for any distinct offence for which a separate charge might have been made
against him at the former trial under sub-section (1) of section 220.
(3) A person convicted of any offence constituted by any act causing consequences which, together
with such act, constituted a different offence from that of which he was convicted, may be
afterwards tried for such last-mentioned offence, if the consequences had not happened, or were not
known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such
acquittal or conviction, be subsequently charged with, and tried for, any other offence
constituted by the same acts which he may have committed if the Court by which he was first tried was
not competent to try the offence with which he is subsequently charged.
(5) A person discharged under section 258 shall not be tried again for the same offence except with
the consent of the Court by which he was discharged or of any other Court to which the first-
mentioned Court is subordinate.
(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act,
1897,(10 of 1897) or of section 188 of this Code.
Explanation.-The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the
purposes of this section.
Illustrations:
(a) A is tried upon a charge of theft as a servant and acquitted. He cannot afterwards, while the
acquittal remains in force, be charged with theft as a servant, or, upon the same facts, with theft simply,
or with criminal breach of trust.
(b) A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may be
tried again for culpable homicide.
(c) A is charged before the Court of Session and convicted of the culpable homicide of B. A may not
afterwards be tried on the same facts for the murder of B.
(d) A is charged by a Magistrate of the first class with, and convicted by him of, voluntarily causing hurt
to B. A may not afterwards be tried for voluntarily causing grievous hurt to B on the same facts, unless
the cage comes within sub-section (3) of this section.
(e) A is charged by a Magistrate of the second class with, and convicted by him of, theft of property from
the person of B. A may subsequently be charged with, and tried for, robbery on the same facts.
(f) A, B and C are charged by a Magistrate of the first class with, and convicted by him of, robbing D. A,
B and C may afterwards be charged with, and tried for, dacoity on the same facts.).

The aforesaid Section of the Cr. P. C., however takes care of autrefois acquit also.

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The word ‘prosecution’ as used with the word ‘punishment’ embodies the following
essentials for the application of double jeopardy rule. They are-
1. The person must be accused of an ‘offence’. The word ‘offence’ as defined in
General Clauses Act means ‘any act or omission made punishable by, law for
the time being in force’.
2. The proceeding or the prosecution must have taken place before a “Court” or
“judicial tribunal”.
3. The person must have been ‘prosecuted and punished’ in the previous
proceeding.
4. The ‘offence’ must be the same for which he was prosecuted and punished in
the previous proceedings.
Article 20 (2) will have no application where punishment is not for the same offence.
Thus if the offences are distinct the rule of double jeopardy will not apply. Thus, where
a person was prosecuted and punished under Sea Customs Act; and was later on
prosecuted under the Indian Penal Code for criminal conspiracy, it will held that second
prosecution was not barred since it was not for the same offence. (Leo Roy v.
Superintendent District Jail, AIR 1958 SC 119).

C. Prohibition against self-incrimination i.e. Right to Silence: An important


principle of criminal law is that everyone shall be presumed innocent unless his
guilt is specially proved within the provisions of law. This is intended to afford
every possible opportunity to the accused to defend himself. Thus this clause
prohibits compelled testimony.

Clause (3) of Article 20 provides that no person accused of any offence shall be
compelled to be a witness against himself. Thus, this clause embodies the general
principles of English and American Jurisprudence that no one shall be compelled
to give testimony which may expose him to prosecution for crime. The cardinal
principle of criminal law which is really the bed rock of English Jurisprudence is
that an accused must be presumed to be innocent till he contrary is proved. It is
the duty of the prosecution to prove the offence. The accused need not make any
admission or statement against his own free will. The Fifth Amendment of the
American Constitution declares that ‘no person shall be compelled in any
criminal case to be a witness against himself.

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The system followed in India for dispensation of criminal justice is the
adversarial system of common law inherited from the British Colonial Rulers.
The accused is presumed to be innocent and the burden is on the prosecution to
prove beyond reasonable doubt that he is guilty. The accused also enjoys the
right to silence and cannot be compelled to reply. The aim of the Criminal Justice
System is to punish the guilty and protect the innocent. In the adversarial system
truth is supposed to emerge from the respective versions of the facts presented by
the prosecution and the defence before a neutral judge. The judge acts like an
umpire to see whether the prosecution has been able to prove the case beyond
reasonable doubt and gives the benefit of doubt to the accused. It is the parties
that determine the scope of dispute and decide largely, autonomously and in a
selective manner on the evidence that they decide to present to the court. The
trial is oral, continuous and confrontational. The parties use cross examination of
witnesses to undermine the opposing case and to discover information the other
side has not brought out. The judge in his anxiety to maintain his position of
neutrality never takes any initiative to discover truth. He does not correct the
aberrations (anomaly, oddness) in the investigation or in the matter of production
of evidence before court. As the adversarial system does not impose a positive
duty on the judge to discover truth he plays a passive role. The system is heavily
loaded in favour of the accused and is insensitive to the victims’ plight and
rights. The right not to be compelled to testify against himself is a universally
recognised right of the accused under Art 14 of the International convention on
civil and political rights and is a fundamental right conferred by Art 20 (3) of the
Constitution. It says that “No person accused of any offence shall be compelled
to be a witness against himself”. This is often described as right to silence.
History of mankind is replete with instances where under every type of regime
the accused in custody was tortured within the four corners of the cell for forcing
him to confess or disclose information, when there is none to hear his cries or to
come to his rescue.

That is why compulsion is prohibited by of Article 20(3). In Poolpandi v.


Superintendent, Central Excise, AIR 1992 SC 1795, the Supreme Court has
pointed out that compulsion in the present context means “Duress”. It does not
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prohibit admission or confession which is made without any inducement, threat
or promise. It also does not bar the accused from voluntarily offering himself to
be examined as a witness. Any confession made under compulsion is rendered
inadmissible in evidence by virtue of S. 24 of the Evidence Act. It cannot be
disputed that accused is good source of information about the commission of the
offence. But unfortunately this source is not fully tapped may be for the fear of
infringing the accused’s right to silence granted by Article 20(3). To ascertain if
there is any scope for tapping this source and to find out ways and means of
enhancing contribution of the accused for better quality of criminal justice it is
necessary to examine the true scope and limits of the Right to silence.

Art. 20(3) do not prohibit the accused being questioned during investigation or trial.
When questioned the accused may deny or make a confession. When the accused is
asked during trial whether he pleads guilty to the charge he may confess and plead
guilty. If the accused is willing during investigation to make a confession, it can be
got recorded by the Magistrate under section 164 of the Code. A voluntary statement
by the accused leading to discovery of any incriminating fact is admissible under S-
27 of the Evidence Act.

Section 313 of the Code confers power on the court to examine the accused only to
explain any circumstances appearing in the evidence against him. Whereas Clause
(a) of Sub-Section (1) of Section 313 empowers the court to put questions at any
stage to the accused as it considers necessary, Clause (b) of Sub-Section (1) requires
the court to question the accused generally on the case after the witnesses for the
prosecution have been examined. Sub-Section (2) of 313 provides that no oath shall
be administered to the accused when he is examined under Sub-Section (1). Sub-
Section (3) provides that the accused shall not be liable for punishment for refusing
to answer the questions put to him or for any false answers.

Sub-section(4) provides that the answers given by the accused may be taken into
consideration in such inquiry or trial, and put in evidence for or against him in any
other inquiry into, or trial for, or any other offence which such answers may tend to
show he has committed. It does not empower the court to draw any inference when
the accused remains silent or refuses to answer the question put to him.

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If, in answer to the question put to the accused under Section 313 he voluntarily
makes a self-incriminatory statement it can be taken into consideration for or against
him as provided in Section 313(4). As no compulsion is involved Article 20(3) is
not violated. If any incriminatory statement is voluntarily made by the accused in
answer to the question put by a police officer, it cannot be regarded as one made
under compulsion, vide AIR 1962 SC 1831, R.K. Dalmia Vs. Delhi Administration.
In AIR 1965 SC 1251, State of Gujarat Vs. Shyamlal Mohanlal Choksi the Supreme
Court has upheld the validity of Section 27 of the Evidence Act which renders the
portion of the statement of the accused that leads to the discovery of any fact
admissible in evidence. (vide Malimath Committee Report).

This fundamental rule of criminal jurisprudence against self-incrimination has been


raised to a rule of constitutional law in Article 20 (3). This guarantee extends to any
person accused of an offence and prohibits all kinds of compulsions to make him a
witness against himself. Explaining the scope of this clause in M. P. Sharma v. Satish
Chandra, (AIR 1954 Supreme Court 300), the Supreme Court observed that this right
embodies the following essentials:

1. It is a right pertaining to a person who is “accused of an offence”.

2. It is a protection against “compulsion to be a witness”.

3. It is a protection against such compulsion relating to his giving evidence


“against himself”.

In Nandini Satpathy v. P. L. Dani, (AIR 1977 Supreme Court 1025), the Supreme Court
has considerably widened the scope of clause (3) of Article 20. The Court has held that
the prohibitive scope of Article 20 (3) goes back to the stage of police interrogation not
commencing in Court only. It extends to, and protects the accused in regard to other
offence- pending or imminent- which may deter him from voluntary disclosure. The
phrase ‘compelled testimony’ must be read as evidence procured not merely by physical
threats or violence but by psychic/mental torture, atmospheric pressure, environmental
coercion, tiring interrogatives, proximity (nearness, closeness), overbearing and
intimidatory methods and the like.

Thus compelled testimony is not limited to physical torture or coercion, but extends also
to techniques of psychological interrogation which cause mental torture in a person
subject to such interrogation.

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In State of Bombay v. Kathi Kalu Oghad, (AIR 1961 SC 1808), the majority of 11
Judges Constitution Bench of Hon’ble Supreme Court has the following observation:

i. An accused person cannot be said to have been compelled to be a witness


against himself simply because he made a statement while in police custody,
without anything more. In other words, the mere fact of being in police custody
at the time when the statement in question was made would not, by itself, as a
proposition of law, lend itself to the inference that the accused was compelled to
make the statement, though that fact, in conjunction with other circumstances
disclosed in evidence in a particular case, would be a relevant consideration in
an enquiry whether or not the accused person had been compelled to make the
impugned (challenge, call in question) statement.

ii. The mere questioning of an accused person by a police officer, resulting in a


voluntary statement, which may ultimately turn out to be incriminatory, is not
compulsion.

iii. ‘To be a witness’ is not equivalent to furnishing evidence in its widest


significance; that is to say, as including not merely making of a oral or written
statements but also production of documents or giving materials which may be
relevant at a trial to determine the guilt or innocence of the accused.

iv. Giving thumb impressions or impressions of foot or palm or fingers or specimen


writings or showing parts of the body by way of identification are not included
in the expression to be a witness.

v. To be a witness means imparting knowledge in respect of relevant facts by an


oral statement r a statement in writing, made or given in Court or otherwise.

vi. To be a witness in its ordinary grammatical sense means giving oral testimony
in Court. Case law has gone beyond this strict literal interpretation or the
expression which may now bear a wider meaning, namely, bearing testimony in
Court or out of Court by a person accused of an offence, orally or in writing.

vii. To bring the statement in question within the prohibition of Art. 20 (3) the
person accused must have stood in the character of an accused person at the time
he made the statement. It is not enough that he should become an accused, any
time after the statement has been made.

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2. Protection of life and personal liberty: Since Independence and the
promulgation of our Constitution rapid strides (pace, step) have been made in
almost all fields. The communication revolution has opened the eyes, ears and
minds of millions of people, resulting in increasing expectations of an ever
growing population. The desire for quick, fair and affordable justice is universal.
Protection of life and liberty have been given a pre-eminent position in our
Constitution by enacting Article 21 as a fundamental right and imposing a duty
on the State to protect life and personal liberty of every citizen. Any deprivation
or breach of this valuable right is not permissible unless the procedure
prescribed by law for that purpose is just, fair and reasonable.

Article 21- Repository of Peoples Rights: The primary responsibility of the State is to
maintain law and order so that citizens can enjoy peace and security. Life and personal
liberty being very precious rights, their protection is guaranteed to the citizens as a
fundamental right under Article 21 of our Constitution. This right is internationally
recognised as a Human Right. This article has given to the people of India as much they
have wanted from it. And we are sure; it is capable of giving more, if they would so
want in future. The founding fathers had perhaps not visualized that a short provision
they were embodying in the Constitution has so much potentiality. Hardly ever such a
provision has made so long strides as this Article.

As free India moved forward, it was realized by the conscience keepers of the nation
that Article 21 has many promises to keep, and they sat down to work as custodians of
the fundamental rights of the people to see how best the sharpest point of the trident
built of Articles 20, 21 and 33 or the apex point of the golden triangle formed by
Articles 14, 19 and 21, could be used to save the lives and liberties of persons residing
in India from executive excesses and how best they can enjoy dignified lives. (B. L.
Hansaria, Right to life and Liberty under the Constitution).

General introduction to life and personal liberty, as contained in Art. 21: Article 21 of
the Constitution contains only one sentence and is perhaps, the smallest Article in the
Indian Constitution. The Article reads as under:-
“No person shall be deprived of his life or personal liberty except according to
the procedure established by law”.
This right is perhaps the oldest recognized human right in the entire world. If the history
of his right is to be traced, one has to refer to the Magna Carta (1215) of U. K., the
Constitution of the United States 1787, the Constitutions of Eire, U.S.S.R., West
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Germany, Japan, Canada, and International Charters like the Universal declaration of
Human Rights 19488, U. N. Covenant on Civil and Political Rights 1966 and the
European Convention on Human Rights 1950. Since the emphasis is on the effect of
Article 21 on the rights of accused the aforementioned historical and other global
sources will be referred to in brief (which are discussed in detail in Chapter 7 infra), for
the purpose of comprehension and continuity.

Prisoner’s Right and Article 21: The protection of Article is available even to convicts
in jails. The convicts are not by mere reason of their conviction deprived of all the
fundamental rights which they otherwise possess. However, due to the conviction, a
convict as he is put into the jail, he may necessarily be deprived of fundamental
freedoms like the right to move freely throughout the territory of India or the right to
“practice” a profession. But the Constitution guarantees to him other freedom like the
right to acquire, hold and dispose of property for the existence of which detention can
be no impediment. Likewise, even a convict is entitled to the precious right guaranteed
by Article 21 and he shall not be deprived of his life or personal liberty except
according to the procedure established by law.

The enormous rights are created/generated/engender by the judiciary by giving wide


connotations to the wordings of Articles 14, 19 and 21. Article 21 along with Articles
14 and 19 form golden triangle of the fundamental rights and these three articles and
only three stands between the heaven of freedom into which Tagore wanted his county
to awake from the abyss of unrestrained power. These three Articles afford to the
people of this country an assurance that the promise held forth by the Preamble will be
performed by ushering an egalitarian (free, democratic) era through the discipline of
fundamental rights, i.e., without emasculation of the rights to liberty and equality which
alone can help preserve the dignity of the individual. (Per Chandrachud, C. J., in
Minerva Mills Ltd., v. Union of India, AIR 1986 SC 375).

The following are the rights as enshrined under the Constitution i.e. by the wide
connotation of the Art. 21:-

i. Life not to be taken away without due process of law

ii. Right to Free Legal Aid and legal service

iii. Right of women prisoners to et legal assistance

iv. Right to live with human dignity

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v. Psychic torture during interrogation-Guidelines of Apex Court

vi. Right against Illegal Detention

vii. Right against solitary confinement

viii. Right to speedy investigation

ix. Right to speedy trial

x. Right to fair trial

xi. Right against handcuffing

xii. Right against inhuman treatment

xiii. Right against delayed execution

xiv. Right against cruel and inhuman punishment- Capital Punishment / Sentence
of death and Article 21

xv. Protection against illegal arrest, detentions and Custodial Death

xvi. Police atrocities and Custodial Death/ Right against torture and custodial
violence

xvii. Compensation to persons killed in “Fake Encounter” and Right to


compensation for violation of fundamental rights

xviii. Testimonial compulsion and search warrant (to be written in above 2 no.
point)

xix. Right of a detenue to publish a book

xx. Right of locomotion and to travel abroad

xxi. Rights of Prisoners to have Interview

xxii. Right to Bail

All the above rights as interpreted by the Higher Judiciary are discussed in detail by
citing appropriate cases infra in Chapter VIII.

3. Safeguards against Arbitrary Arrest and Detention: Without following the


procedure established by the law, no person can be deprived of his life or
personal liberty is enshrined under Art. 21 of the Constitution. Moreover, the
various landmark decisions of the Apex Court laid down that the procedure
established by the law shall be just, fair and reasonable. This means that a

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person can be deprived of his life or personal liberty provided his deprivation
was brought about in accordance with the procedure prescribed by law. Art. 22
provide those procedural requirements which must be adopted and included in
any procedure enacted by the Legislature.

Article 22 is very intimately connected with Article 21. The first two clauses of that
Article contain very valuable safeguards relating to a personal liberty of an individual
though the Code of Criminal Procedure, 1973 (as in force today) has also contained the
safeguards mentioned in Clause (2) of Article 22, the giving fundamental right status to
that safeguard has its own importance, as even the State Legislatures cannot in that case
enact any law in violation of it.

Thus Article 22 prescribes the minimum procedural requirements that must be included
in any law enacted by the Legislature in accordance with which a person may be
deprived of his life and personal liberty.

Article 22 deals with two separate matters:

i. Persons arrested under the ordinary law of crimes; and

ii. Persons detained under the law of Preventive Detention.

The first two clauses of the Art. 22 deal with detention under the ordinary law of crimes
and lay down the procedure which has to be followed when a man is arrested and the
remaining clause (3), (4), (5) and (6) of Art. 22 deals with the persons detained under a
preventive detention law and lay down the procedure which is to be followed when a
person is detained under that law.

The mover of the Article 22 stated that two fundamental principles which every
civilized country followed to take care of International Justice were being introduced in
the shape of Clauses (1) and (2) of the Article 22 which would provide sufficient
safeguards against illegal or arbitrary arrest. Dr. Ambedkar apparently felt very elated
(excited, ecstatic, delighted) in bringing these two provisions in the Constitution which
would be apparent from the following part of his speech.

“…. Those who are fighting for the protection of individual freedom ought to
congratulate themselves that it has bee found possible to introduce this clause which,
although it may not satisfy those who hold absolute views in this matter, certainly saves
a great deal which had been lost y the non-introduction of the words ‘due process of
law’. (Constituent Assembly Debate, Vol. IX, p. 1498).

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Rights of arrested persons under ordinary laws (under Clauses 1 and 2 of
Article 22): Clauses (1) and (2) of Art. 22 of Constitution may be read as follows-

1. No person who is arrested shall be detained in custody without being


informed, as soon as may be, of the grounds of such arrest nor shall he be
denied the right to consult, and to be defended by, a legal practitioner of his
choice. [Article 22(1)]

2. Every person who is arrested and detained in custody shall be produced before
the nearest Magistrate within a period of twenty four hours of such arrest
excluding the time necessary for the journey from the place of arrest to the
Court of the Magistrate and no such person shall be detained in custody
beyond the same period without the authority of the Magistrate. [Article 22(2)]

Art 22:

1. No person shall be detained in custody without being


informed, as soon as may be, of the grounds for such arrest
nor shall he be denied the right to consult and to be
defended by, legal practitioner of his choice.
2. Every person who is arrested and detained in custody shall
be produced before the nearest magistrate within a period of
twenty four hours of such arrest excluding the time
necessary for such journey from the place of arrest to the
court of magistrate and no person shall be detained in
custody beyond the said period without the authority of the
magistrate.
3. Nothing in clauses (1) and (2) shall apply-

to any person for the time being an enemy alien;

to any person who is arrested or detained under any


law providing for preventive detention.

(4) No law providing for preventive detention shall


authorize the detention of any person for a period
longer than three months unless-

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an advisory Board consisting of persons who are qualified to be
appointed as, Judges of High Court has reported before the
expiration of the said period that there is, in its opinion
sufficient cause for such detention:

Provided that nothing in this clause shall authorize such


detention beyond the period specified by any law made by
Parliament

(5)When any person is detained in pursuance of an order made


under any law providing for preventive detention, the authority
making the order shall, as soon as may be, communicate to
such person the grounds on which the order has been
made and shall afford him the earliest opportunity of
making a representation against the order.

(6) Nothing in clause (5) shall require the authority making


such order to disclose the facts which such authority considers
to be against the public interest to disclose.

'Preventive detention' means the detention of a person without


trial in such circumstances that the evidence before the
authority is not sufficient to make out a legal charge or to
secure the conviction of the detenue by legal proof, but still
may be sufficient to justify his detention. The object of
preventive detention is to prevent a person from doing
something. No offence is proved, nor any charge formulated:
and the justification is suspicion or reasonable probability and
not criminal conviction which only can be warranted by legal
evidence.

The object of the framers of the Constitution to give


Constitutional status to preventive detention was that though
they recognized the need for such laws, they wanted to provide
safeguards to prevent abuse of power. The procedural

15
requirements are mandatory and any violation would render the
detention invalid.

Thus Article 22 in whole, guarantee four rights on a person who is arrested for any
offence under an ordinary law-

a. the right to be informed ‘as soon as may be’ of ground of arrest,

b. the right to consult and to be represented by a lawyer of his own choice,

c. the right to be produced before a Magistrate within 24 hours,

d. the freedom from detention beyond the said period except by the order of the
Magistrate.

The above fundamental rights guaranteed to arrested persons by Clauses (1) and (2) of
Article 22 are available to both citizens and non-citizens and not to persons arrested and
detained under any law providing for preventive detention. The Code of Criminal
Procedure, 1973 (also in old Code) contains analogous provisions in Ss. 50 and 57
but our Constitution makers were anxious to make these safeguards an integral part of
fundamental rights. This is what Dr. B. R. Ambedkar said while moving for insertion of
Article 15A. (as draft in the draft Bill of the Constitution, now Article 22).

a. The right to be informed ‘as soon as may be’ of ground of arrest (applies to
arrests other than made under Court’s warrant): Broadly speaking, arrests
may be classified into two categories, namely, arrests under warrants issued by a
Court and arrests otherwise than under such warrants. There can be no manner
of doubt that arrest without warrants issued by a Court call for greater protection
than the arrests under such warrants.

Article 22 is in the nature of a directive to the arresting authorities to disclose the


grounds of arrest of a person immediately. And this is also necessary to enable the
arrested person to know the grounds of his arrest and to prepare for his defence. This is
also meant to afford the earliest opportunity to the arrested person to remove any
mistake, misapprehension or misunderstanding in the minds of the arresting authority
and, also to know exactly what the accusation against him is so that he can exercise the
second right, namely, of consulting a legal practitioner of his choice and to be defended
by him.

16
The Clause (1) embodies a rule which has always been regarded as vital and
fundamental for safeguarding personal liberty in all legal systems where the Rule of
Law prevails. For example, the 6th Amendment to the Constitution of the United States
of America contains similar provisions and so does Article XXXIV of the Japanese
Constitution of 1946. In England whenever an arrest is made without a warrant, the
arrested person has a right to be informed not only that he is being arrested but also of
the reasons or ground for the arrest.

As stated in Ram Narayan Singh v. State of Delhi (AIR 1953 SC 277and AIR 1969 SC
1014 Madhu Limaye) this Court has often reiterated that those who feel called upon to
deprive other persons of liberty in the discharge of what they conceive to be their duty
must, strictly and scrupulously observe the forms and rules of law. Whenever that is not
done the petitioner would be entitled to a writ of Habeas Corpus directing his release.\

Section 50 of the Cr. P. C. states that every police officer or other person arresting any
person without warrant shall forthwith communicate to him full particulars of the
offence for which he is arrested or other grounds for such arrest. This provision flows
from the Constitution of India as provided in Article 22. This Article protects a citizen
against arrest and detention in certain cases and states that no person who is arrested
shall be detained in custody without being informed, as soon as may be, of the grounds
of such arrest. The Article further requires that every person who is arrested or detained
in custody shall be produced before the nearest Magistrate within a period of 24 hours
of such arrest excluding the time necessary for the journey from the place of arrest to
the Court of the Magistrate. Article 21 of the Constitution protects personal liberty of a
person and states that no person shall be deprived of his life or personal liberty except
according to procedure established of law. Section 50 (1) Cr. P. C. is such a procedure
established by law and it echoes (resonance, repeat, boom) the requirement of Article
22 that a person after being arrested is to be informed the grounds for such arrest.

In a notable judgment in Joginder Kumar v. state of U. P.,((1994 )4 SCC 260 ) Supreme


Court has laid down guideline governing arrest of a person during the investigation.
This is intended to strike a balance between the needs of police on one hand and the
protection of human rights of citizens from oppression and injustice at the hands of law
enforcing agencies. The Court has held that person is not liable to arrest merely on the
suspicion of complicity in an offence. There must be some reasonable justification in
the opinion of the police officer effecting the arrest that such arrest was necessary and
justified.
17
The Court has laid down the following guidelines to be followed in making arrest of a
person-

i. An arrested person being held in custody is entitled, if he so request to have one


friend, relative or other person who is known to him or likely to take an interest
in his welfare told as far as is practicable that he has been arrested and where he
is being detained.

ii. Police officer shall inform the arrested person when he is brought to police
station of this right.

iii. An entry shall be required to be made in the police diary as to who was informed
of the arrest.

The Court directed that it shall be the duty of the Magistrate, before whom the arrested
person is produced to satisfy himself that these requirements have been complied with.

The Court said that these guidelines shall be followed in all cases of arrest till legal
provisions are made in this behalf. These requirements shall be in addition to the rights
of arrested persons found in the various police manuals. (It is to be noted that almost of
all the guidelines above mentioned, the respective provisions are made in Cr. P. C.).

b. The right to consult and to be represented by a lawyer of his own choice: The
framers of our Constitution must have been aware of the long struggle that took
place in England before the right to be presented by counsel and to be told the
grounds of arrest was established. No doubt the Crown was then concerned with
traitors (conspirator, defector) and other law-breakers and in a desire to put them
down denied them these privileges.

In America, if a person is arrested he must be afforded opportunity to consult lawyer of


his own choice and if he is unable to employ a counsel it is the duty of Court to employ
a lawyer for him. (Powell v. Albama, 247 US 45).

Prior to Maneka Gandhi’s decision in India the view of the Court was that it was not
bound to provide the help of a lawyer unless a request was made by him. But as a result
of the ruling of the Supreme Court in Maneka Ghandhi’s case and a series of cases
following that case it is clear that the Courts will be bound to provide the assistance of a
lawyer to a person arrested under an ordinary law also.

In Hussainara Khatoon v. Home Secrretary, Bhihar (AIR 1979 SC 1377) , the Supreme
Court has held that it is the constitutional right of every accused person who is unable to

18
engage a lawyer and secure legal services on account of reasons such as poverty,
indigence or incommunicado situation, to have free legal services provided to him by
the State and the State is under constitutional duty to provide a lawyer to such person if
the needs of justice so require. If free legal services are not provided the trial itself may
be vitiated as contravening Art. 21 (as it does not followed the principle-according the
procedure established by the law i.e. just, fair and reasonable).

The right to consult an advocate of his choice shall not be denied to any person who is
arrested. This does not mean that persons who are not under arrest or custody can be
denied that right. The spirit and sense of Article 22(1) is that it is fundamental to the
rule of law that the services of a lawyer shall be available for consultation to any
accused person under circumstances of near-custodial interrogation. Moreover, the
observance of the fight against self-incrimination is best promoted by conceding to the
accused the right to consult a legal practitioner of his choice.

c. The right to be produced before a Magistrate within 24 hours: Clause (2) of


Article 22 provides the next and most material safeguard that the arrested person
must be produced before a Magistrate within 24 hours of such arrest so that an
independent authority exercising judicial powers may without delay apply its
mind to his case. The clause affords a possibility, if not an opportunity, for
immediate release in case the arrest is not justified.

d. The freedom from detention beyond the said period except by the order of the
Magistrate: This means that if there is necessity of detention beyond 24
hours it is only possible under judicial custody. A detention of a person in police
custody beyond 24 hours is illegal. It can neither be cured nor waived. Such
person or any other person on his behalf, can petition the High Court for a writ
of habeas corpus. This is a constitutional remedy and cannot be denied even on
the ground that an alternative remedy is available. But, the Magistrate to whom
it is brought to his notice that without his ‘authority’ a person arrested is being
held in police custody for more than 24 hours would not be helpless in the
matter and he could call upon the concerned police officer to file an affidavit
stating whether the allegations made by the complainant are true and the
authority under which the detenu is illegally detained. If a police officer or other
authority called upon to file a counter-affidavit refuses to file an affidavit, he
will be guilty of criminal contempt of Court within the meaning of clause (c) of
Section 2 of the Contempt of Courts Act, 1971.
19
The expression ‘arrest and detention’ in Art. 22 was held not to apply to a person
arrested under a warrant issued by the Court on a criminal or quasi-criminal complaint
or under security proceedings. Art. 22 is designed to give protection against the act of
the

The clause simply states that detention beyond 24 hours is an offence punishable under
S. 342, I. P. C., Magistrate can enquire into the allegation by himself. Once it is
recognized that detention beyond 24 hours is an offence punishable under S. 342, I. P.
C., it would follow that when information is placed before a Magistrate that such an
offence is, or is being committed, he can order the officer in charge of a police station to
investigate the same. S. 342 is a cognizable office. Where a complaint is made against
an officer in charge of a police station himself, the Magistrate must be held to have the
power to enquire into the allegation by himself and then pass appropriate orders.
Similarly, S. 190 of Cr. P. C. clause (c) of Sub-Section (1) empowers a Magistrate to
take cognizance of any offence upon information received from any person other than a
police officer. The procedure cannot be an alternative or a substitute for the remedy of
habeas corpus available to every citizen of this country under Article 226 of the
Constitution of India, besides, of course, those under Article 32. This is only an
additional remedy which is open to a person to adopt, if he so chooses. If he comes
directly to High Court by way of Habeas Corpus without approaching a Magistrate, it
will not be said that he ought to follow that procedure first before invoking High
Court’s jurisdiction by way of Habeas Corpus. (Poovan v. Sub-Inspector of Police,
KERALA, 1993 CR.L.J.)

In a significant judgment in C. B. I. v. Anupam J. Kulkarni, [(1992) 3 SCC 141] the


Supreme Court has laid down detailed guidelines governing arrest of an accused when
investigations cannot be completed within 24 hours. The Court has held that when a
person is arrested under Section 57 of Cr. P. C., he should be produced before the
nearest Magistrate within 24 hours. The Judicial Magistrate can authorize the detention
of the accused in such custody, i.e., either police or judicial from time to time but the
total period of detention cannot exceed 15 days in whole. After the expiry of the first
period of detention further remand can only be in judicial custody. There cannot be any
detention in the police custody after the expiry of first 15 days. If the investigation is
not completed within the 90 days or 60 days then the accused has to be released on bail
as provided under Section 167(2) of the Cr. P. C.

20
The period of 90 days or 60 days has to be computed from the date of detention as per
the orders of the Magistrate and not from the date or arrest by the police.

Thus after the expiry of first 15 days it should be only under judicial custody.

This is a welcoming ruling of the Supreme Court. This would save many under-trial
prisoners from police atrocities as they cannot be kept for a undue long period in police
lock-up and would also help in speedy investigation of crimes.

Exceptions- Clause (3) of Article 22 provides two exceptions to the rule contained in
clause (1) and (2). It says that the rights given to arrested person under clause (1) and
(2) are not available to following persons:

i. an enemy alien,

ii. a person arrested and detained under a Preventive Detention Law.

An enemy alien may, however, seek the protection under Clauses (4) and (5) of Article
22 if arrested under a law of Preventive Detention, but subject to the law passed by the
Parliament.

Compensation to the victim of illegal arrest or detention:

Article 9(5) of the International Covenant on Civil and Political Rights, 1966 (ICCPR)
provides that anyone, who has been victim of unlawful arrest or detention shall have
enforceable right to compensation. Of course, the Government of India at the time of its
rectification of (ICCPR) in 1979 made a specific reservation to the effect that the Indian
legal system does not recognize a right o compensation for victim of unlawful arrest or
detention and thus did not become a party to the Covenant. That reservation, however,
has now lost its relevance in view of the law laid down by the Court in a number of
cases awarding compensation for the infringement of the fundamental right to life of a
citizen. Rudal Sah v. State of Bihar [(1983)4 SCC 141], Sebastian M. Hongray v.
Union of India [(1984)1 SCC 339], Bhim Singh v. State of J. & K. [1984(Supp) SCC
504], A Women’s Resources Center v. Commissioner of Police [(1990) 1 SCC 422].
There is indeed no express provision in the Constitution of India for grant of
compensation for violation of a fundamental right to life. Nonetheless, Courts have
judicially evolved a right to compensation in cases of established unconstitutional
deprivation of personal liberty of life. (Anguri v. State,2001 CR. L. J. 3697 (DELHI)
para 9)

PREVENTIVE DETENTION LAWS

21
Clauses (4) to (7) of Article 22 provide the procedure which is to be followed if a
person is arrested under the law of ‘Preventive Detention’, there is no authoritative
definition of the term ‘preventive Detention’ in Indian law. The word ‘preventive’ is
used in contra-distinction to the word ‘punitive’. It is not a punitive but a preventive
measure. While the object of the punitive detention is to punish a person for what he
has already done, the object of preventive detention is not to punish a man for having
done something but to intercept him before he does it and to prevent him from doing it.
No offence is proved nor is any charge formulated. The sole justification of such
detention is suspicion or reasonable probability of the detenu committing some act
likely to cause harm to the society or endanger the security of the Government, and not
criminal conviction which can only be warranted by legal evidence. (A. K. Gopalan v.
State of Madras, AIR 1950 SC 27 at p. 91 Mukharjee, J.).

Preventive Detention laws are repugnant to democratic Constitution and they are not
found in any of the democratic countries of the world. No country in the world has
made these laws integral part of the Constitution as has been done in India. There is no
such law in U. S. A. It was resorted to in England only during war time. In England for
the first time, during the First World War, certain regulations framed under the Defence
of Realm Act provided for preventive detention at the satisfaction of Home Secretary as
a war measure and they ceased to have effect at the conclusion of hostilities. The same
thing happened during the Second World War. These regulations were upheld by
British Court. (Liversidge v. Anderson, 1942 AC 206 vide Constitutional Law of India
by J. N. Pandey). Indian Constitution, however, recognizes preventive detention in
normal times also. In A. K. Gopalan v. State of Madras, AIR 1950 SC 27 Patanjali
Shastri, J., explaining the necessity of this provision said: “The sinister (evil, menacing)
looking feature, so strangely out of place in democratic Constitution, which invests
personal liberty with the sacrosanctity (most sacred, inviolable) of a fundamental right,
and so incompatible with the promises of its preamble, is doubtless designed to prevent
the abuse of freedom by anti-social and subversive (rebellious, insubordinate) elements
which might imperil the national welfare of the infant republic”.

The first Preventive Detention Act was enacted by the Parliament of India on 26 th
February, 1950. The object of the Act was to provide for detention with a view to
preventing any person from acting in a manner prejudicial to the defence of India, the
relation of India with foreign powers, the Security of India or a State or the maintenance
of public order, the maintenance of supplies and services essential to the community.

22
Section 3 empowered the Central and the State Governments and certain officers under
them to make orders of detention if they were satisfied that it was necessary to detain a
person with a view to prevent him from acting in any manner prejudicial to the things
mentioned above.

The Act was purely a temporary measure and was to cease to have effect on 1 st April,
1951. But its life was extended from time to time till it lapsed on December 31, 1969.
But the Preventive Detention Law was revived in the form of Maintenance of Internal
Security Act, 1971 (MISA), in less than two years time after the lapse of the first
Preventive Detention Act, 1950. This Act continued to be in operation until the year
1977. That Act was repealed by the then Janata Government in 1978 which came to
power after the defeat of the Congress Ministry headed by Smt. Indira Gandhi. But in
less than two years time after the repeal of the MISA the caretaker Government headed
by Mr. Charan Singh again revived the Preventive Detention Law in the form of
Prevention of Black marketing and Maintenance of Supplies of Essential Commodities
Act. Its object is to prevent black marketing, hoarding of essential commodities. It
requires the detaining authority to furnish grounds of detention within a period of 5 days
from the date of detention, extendible to 10 days in exceptional cases. Within 3 weeks
the Government is required to place grounds of detention along with detenu’s
representation before the Advisory Board. The Board must submit it report to the
Government within 7 weeks from the date of detention. The maximum period for which
a person could be detained after the confirmation by the Advisor Board has been
restricted to 6 months from the date of detention. The aggrieved person has right to
move the Courts under Arts. 32 and 226 of the Constitution.

Again in 1980, the President issued the National Security Ordinance providing for
preventive detention of persons responsible for communal and caste riots and other
activities prejudicial to the country’s security. The Ordinance has become an Act now.
It provides for detention up to a maximum period of 12 months but does not bar the
detenu from challenging his detention in a Court of law on grounds amongst others, of
infringement of his fundamental rights. The detenu will be conveyed the grounds of the
detention within 10 days of his detention. He shall have rights to represent to the
Advisory Board against his detention. It also provides for detention of a person with a
view to preventing him from acting in any manner prejudicial to the security of the
State or the maintenance of public order or supplies and services essential to the life of
the community.

23
In A. K. Roy v. Union of India, (AIR 1982 SC 710), popularly known as the NSA case,
the Supreme Court by 4:1 majority upheld the constitutional validity of he NSA and the
Ordinance which preceded the Act. The Court held that Act was neither vague nor
arbitrary in its provisions providing for detention of persons on certain grounds, as
acting in a manner prejudicial to the ‘defence of India’, ‘security of India’, ‘security of
the State’, and to ‘relations with foreign power’. While upholding the validity of the
NSA and Ordinance preceding it, the Court issued a number of directions with a view to
safeguarding the interests of detenues detained under the NSA. The Court directed:

1. that immediately after detention his kith and kin (nearest and dearest, family)
must be informed in writing about his detention and his place of detention;

2. the detenu must be detained in a place where he habitually resides unless


exceptional circumstances require detention at some other place;

3. that detenu is entitled to his book and writing materials, his own food, visits
from friends and relatives;

4. he must be kept separate from those convicted;

5. no treatment of a punitive character should be meted (allotted) out to him and he


should be treated according to the civilized norms of human dignity.

Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA): TADA was
primarily passed with a view to dealing with specific situations of terrorism in Punjab,
Kashmir and even parts of the north-east. The Act vests sweeping (far-reaching,
comprehensive, extensive) powers in the State Governments which in effect means
local politicizations and the Police-which is likely to be misused. There were
widespread complaints of misuse of the provisions of the Act.

In Kartar Singh v. State of Punjab [(1994) 3 SCC 569], the Supreme Court has
considerably narrowed down the scope and ambit of the TADA and held that unless the
crime alleged against an accused could be classified as a “terrorist act” in letter and
spirit he should not be charged under the Act and should be tried under ordinary penal
laws by the regular courts. The Court held that S. 3 of the Act operates when a person
not only intends to overawe the Government or create a terror in people etc. but also
when he uses the arms and ammunition which results in death or likely to cause deaths
and damages the property. In other words, the Court held that ‘a person becomes a
terrorist or is guilty of terrorist activity when his intention, action and consequence all
the three ingredients are found to exist together’
24
The validity of the Act was challenged by more than 500 undertrials.

Another safeguard laid down by the Court against the misuse of the Act was that of
speedy trial of accused which is an essential part of the fundamental right to life and
liberty under Art. 21 of the Constitution.

The Court also struck down S. 22 of the Act violative of Art. 21 of the Constitution.
Section 22 permitted identification of an accused on the basis of his photograph.

Referring to violation of human rights by the state law enforcing agencies the Court said
that these acts were in utter disregard and in all breaches of humanitarian law and
universal human rights as well as in total negation of the constitutional guarantee and
human decency. The Court further held that the Act did not provide a blanket power of
unlimited detention without trial and a citizen should be entitled to bail in case the
police fail to complete the investigations within 6 months, extendable to maximum of
one year with the permission of designated Court.

Constitutional safeguards against Preventive Detention Laws: Though the


Constitution has recognized the necessity of laws as to Preventive Detention, it has also
provided safeguards to mitigate their harshness by placing fetters on legislative power
conferred on the Legislature. It is for this reason that Article 22 has been given a place
in the Chapter on “guaranteed rights” Clauses (4) to (7) guarantee the following
safeguards to a person arrested under Preventive Detention Law:-

a. Review by Advisory Board

b. Communication of grounds of detention to detenu.

c. Detenue’s right of representation.

a. Review by Advisory Board:

The 44th Amendment Act, 1978 has substituted a new clause (4) which now reduces the
maximum period for which a person may be detained without obtaining the opinion of
the Advisory Board from ‘3 months’ to ‘2 months’. The detention of a person for a
longer period than two months can only be made after obtaining the opinion of the
Advisory Board. The Amendment has also changed the composition of the Advisory
Board. The Advisory Board shall now be constituted in accordance with the
recommendation of the Chief Justice of the appropriate High Court. It shall consist of a
Chairman and not less than two other members. The Chairman of an Advisory Board
shall be sitting Judge of the appropriate High Court and the other members shall be a

25
sitting or retired Judges of any High Court. Thus, an Advisory Board as envisaged
under the Amendment Act of 1978 shall now be an independent and impartial body, i.e.
free from executive control. Thus, after 44th Amendment a person can be detained
beyond the period of two months only after obtaining the opinion of an advisory Board.

The amendment thus provides for two categories of preventive detention:

1. Detention for maximum period of two months under a law made by a


legislature, and

2. Detention for a period longer than two months provided the Advisory Board
gives its opinion in favour of it.

b. Grounds of detention must be communicated to detenu:

Article 22 (5) gives two rights to the detenu:

a. the authority making the order of detention must “as soon as may be”
communicated to the person detained the grounds of his arrest, that is, the
grounds which led to be subjective satisfaction of the detaining authority and

b. to give the detenu “the earliest opportunity” of making a representation against


the order of detention, i.e. to be furnished with sufficient particulars to enable
him to make a representation.

The Clause (5) imposes an obligation on the detaining authority to furnish to the detenu
the grounds for detention “as soon as possible”. The grounds of detention should be
very clear and easily understandable by the detenu. The sufficiency of the particulars
conveyed to a detenu is a justifiable issue, the test being whether they are sufficient to
enable the detenu to make an effective representation.

Amendment in NSA: In view of the amendments in the NSA the scope of judicial
review of preventive detention laws has been considerably reduced. The 2nd amendment
in NSA provides that a detention order made under the Act for which two or more
grounds had been mentioned would not be deemed to be invalid or inoperative merely
because some of the frounds were considered vague, non-existent, non relevant,
unconnected or invalid. The grounds of detention are separable and a person can be
detained again and again on the same ground. The amendment has nullified the effect of
several decisions of the Court in which detention orders were struck down on one or the
other grounds mentioned therein.

c. Detenue’s right of representation:


26
The other right given to the detenu is that he should be given the earliest opportunity of
making a representation against detention order. It means that the detenu must be
furnished with sufficient particular of ground of his detention to enable him to make a
representation which on being considered may give him relief.

The ‘grounds’ under Article 22 (5) means all the “basic facts” and materials which have
been taken into account by the detaining authority in making the order of detention and
on which, therefore, the order of detention is based. Nothing less than all the basic facts
and materials which influenced the detaining authority in making the order of detention
must be communicated to the detenu. This is the plain requirement of the first safeguard
in Article 22 (5). The second safeguard in Article 22 (5) requires that the detenu shall be
afforded the earliest opportunity of making representation against the order of detention.
No available delay, no shortfall in the materials communicated shall stand in the way of
the detenu in making an earlier, yet comprehensive and effective representation in
regard to all basic facts and materials which may have influenced the detaining
authority in making the order of detention depriving him of his freedom. These are the
legal safeguards enacted by the Constitution-makers against arbitrary or improper
exercise of the vast power of preventive detention which may be rested in the Executive
by a law of Preventive Detention.

The reason why grounds are required to be communicated ‘as soon as possible’ is two-
fold:

Firstly, it acts as a check against arbitrary and capricious exercise of power. The
detaining authority cannot whisk (beat, whip, flogging) away a person and put him
behind bars at its own sweet will. T must have grounds for doing so.

Secondly, the detenu has to afford an opportunity of making a representation against the
order of detention. But if the grounds are not supplied to him it is not possible for him
to make effective representation and in fact the right to make representation would
become illusory.

Parliament has passed the COFEPOSA (Conservation of Foreign Exchange, Prevention


of Smuggling Activities Act, 1974) to provide for preventive detention for preventing
smuggling and conserving foreign exchange. The constitutional safeguards embodied in
Articles 22 (5) of the Constitution are available to a person detained under the
Conservation of Foreign Exchange, Prevention of Smuggling Activities Act, 1974.s

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