Safeguard against Arbitrary Arrest

Submitted to: Submitted By:

Prof. A. Aravindan PRATIK SHEKHAR SINHA

Faculty COLS B.Tech (ET) + LLB (IPR)

Roll No. R840213040

SAP ID - 500030906

CONTENTS

Introduction

International Law

Protection against detention in certain cases

Meaning of preventive detention

Clause (1) and (2)

Clause (3)

Clause (4) to (7)

Legislative Power to enact Preventive Detention Act

Bibliography

INTRODUCTION

Arbitrary arrest and arbitrary detention are the arrest or detention of an

individual in a case in which there is no likelihood or evidence that they

committed a crime against legal statute, or in which there has been no

proper due process of law. 1

Arbitrarily arresting or detaining persons contradicts rule of law established

in democracies as well as habeas corpus and is thereafter illegal in those regimes.

In practice in the 2000s (decade), arbitrary arrest or detention (the definitions of

these terms vary between different national jurisdictions) is typically tolerated by

the legal system for a short duration, of a few hours up to a few days, in most

democracies, especially in response to political street demonstrations. It is often a

characteristic of dictatorships or police states, which may also engage in forced

disappearance.

Virtually all individuals who are arbitrarily arrested are given absolutely no

explanation as to why they are being arrested, and they are not shown any arrest

warrant.2 Depending on the social context, many or the vast majority of arbitrarily

arrested individuals may be held incommunicado and their whereabouts can be

concealed from their family, associates, the public population and open trial

courts.[3][4] Many individuals who are arbitrarily arrested and detained suffer

physical or psychological torture during interrogation, as well as extrajudicial

punishment and other abuses in the hands of those detaining them.

1 "Freedom from Arbitrary Arrest and Exile". Human Rights Law. United Nations Cyber Schoolbus. 2006-11-09. Retrieved 2007-09-30.

2 "Human Rights Violations by the Indonesian Armed Forces". Human Rights. Human Rights Watch. 1998-06-27. Retrieved 2007-09-30.

INTERNATIONAL LAW

Arbitrarily depriving an individual of their liberty is strictly prohibited by

the United Nations division for human rights. Article 9 of the 1948Universal

Declaration of Human Rights decrees that "no one shall be subjected to arbitrary

arrest, detention or exile";3 that is, no individual, regardless of circumstances, is

to be deprived of their liberty or exiled from their country without having first

committed an actual criminal offense against a legal statute, and the government

cannot deprive an individual of their liberty without proper due process of law. As

well, the International Covenant on Civil and Political Rights specifies the

protection from arbitrary arrest and detention by the Article 9.4

3 "Universal Declaration of Human Rights". Human Rights. United Nations. 1998-12-01. Archived from the original on 29 September 2007.

Retrieved 2007-09-30. 4 International Covenant on Civil and Political Rights, Article 9

PROTECTION AGAINST ARREST AND DETENTION IN

CERTAIN CASES

The procedural safeguards against arbitrary arrest and detention, provided for in

Cls. (1) and (2) of Art. 22 are

(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. No such person shall

be denied the right to consult, and to be defended by, a 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 if arrest

excluding the time necessary for the courney from the place of arrest to the court

of magistrate and no such person shall be detained in custody beyond the said

period without the authority of a magistrate.

(3) The above safeguards are not, however, available to

a) to any person who for the time being is an enemy alien; or

b) 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 a

person for a longer period than three months unless

a) an Advisory Board consisting of persons who are, or have been, or are

qualified to be appointed as, Judges of a High Court has reported before

the expiration of the said period of three months that there is in its opinion

sufficient cause for such detention:

Provided that nothing in this sub-clause shall authorize the detention of any

person beyond the maximum period prescribed by any law made by

Parliament under sub-clause (b) of clause (7); or

b) Such person is detained in accordance with the provisions of any law made

by the Parliament under sub-clauses (a) and (b) of clause (7).

Right under Article 22(2) of the constitution is available only against illegal

detention by the police and it is not available against custody in jail of a person

pursuant to a judicial order.

5[(4) No law providing for preventive detention shall authorize the detention of a

person for a longer period than two months unless an Advisory Board constituted

in accordance with the recommendations of the Chief Justice of the appropriate

High Court and the other members shall be serving or retired Judges of any High

Court:

Provided further that nothing in this clause shall authorize the detention of any

person beyond the maximum period prescribed by a law made by Parliament

under sub-clause (a) of clause (7).]

(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 any such order as is

referred to in that cause to disclose facts which such authority considers to be

against the public interest to disclose.

(7)Parliament may by law prescribe

5 Proposed Substitution by the Constitution (Forty-fourth Amendment) Act, 1978, S. 3 for which date of

enforcement yet to be notified as of April 1, 2001.

a) the circumstances under which, and the class or classes of cases in which, a

may be detained for a period longer than three month under any law

providing for preventive detention with the provision of sub-clause (a) of

clause (4);

b) the maximum period for which any person may in any class or classes of

cases be detained under any law providing for preventive detention; and

c) The procedure to be followed by any Advisory Board in an inquiry under

sub-clause (a) of clause (4).

(7) Parliament may by law prescribe

6[(a) the maximum period for which any person may in any class or classes of

cases be detained under any law providing for preventive detention; and

7(b) The procedure to be followed by an Advisory Board in an inquiry under clause

(4).

6 Proposed amendment: clause (a) omitted and cls. (b) And (c) re-lettered as cls. (a) And (b) by the Constitution

(Forty-fourth Amendment) Act, 1978, S. 3. (Date of enforcement yet to be notified as of April, 2001). 7 Zahira Habibullah Shaikh (5) v. State of Gujarat, (2006) 3 SCC 374, 396.

MEANING OF PREVENTIVE DETENTION

Preventive detention means detention of a person without trial. It is so called in

order to distinguish it from punitive detention. The object of punitive detention is

to punish a person for what he has done and after he is tried in the courts for the

illegal act committed by him. The object of preventive detention, on the other

hand, is to prevent him from doing something and the detention in this case takes

place on the apprehension that he is going to do something wrong which comes

within any grounds specified by the Constitution, viz., acts prejudicial to the

security of the State, public order, maintenance of supplies and services essential

to the community; defense; foreign affairs or security of India. In fact, preventive

detention is resorted to in such circumstances that the evidence in possession of

the authority is not sufficient to make a charge or to secure the conviction of the

detenu by legal proofs but May still be sufficient to justify his detention on the

suspicion that he would commit a wrongful act unless he is detained.

CLAUSES (1) AND (2)

Rights of arrested persons

Clauses (1) and (2) of Article 22 confer four rights upon a person who has been

arrested. Firstly, he shall not be detained in custody without being informed, as

soon as may be, of the grounds of his arrest. If information is delayed, there must

be some reasonable ground justified by the circumstances.8 Secondly, he shall

have the right to consult and to be represented by a lawyer of his own choice.9

Thirdly, every person who has been arrested has the right to be produced before

the nearest Magistrate within 24 hours of his arrest. In computing this period of

24 hours, the time spent on the journey from the place of arrest to the court of

the Magistrate is to be excluded. This requirement is dispensed with if the person

arrested is admitted to bail.10 Fourthly, he is not to be detained in custody beyond

the said period of 24 hours without the authority of the court.11Even if an accused

is initially illegally detained, the detention becomes lawful when subsequently he

is arrested and produced within 24 hours. But where remand orders are obtained

by the police from the magistrate or a judge without producing the arrested

person before such magistrate or judge within 24 hours, Article 22(2) is violated.12

8 Tarapada De v. State of W.B., AIR 1951 SC 174.

9 For the existing law, see S. 303, CrPC, 1973.

10 State of M.P. v. Shobharam, AIR 1966 SC 1910.

11 . Shukla, V.N. Constitution of India. (Eastern Book Company, 2008)

12 Saptawna v. State of Assam, (1972) SCC (N) 45: AIR 1971 SC 813

CLAUSE (3)

Exceptions Clause (3) enacts two exceptions. The fundamental rights

guaranteed to arrest persons by clauses (1) and (2) do not apply: (a) to enemy

aliens; and (b) to persons arrested or detained under any law providing for

preventive detention.

CLAUSES (4) TO (7)

Preventive Detention Clauses (4) to (7) relate to preventive detention. If we

look at the lists distributing legislative powers between the States and the Union,

we find that the subject of preventive detention is mentioned in the Union List13

as well as in the Concurrent List.14

There is no authoritative definition of the term preventive detention in Indian

law. The expression had its origin in the language used by Law Lords in England

while explaining the nature of detention under Regulation 14-B, Defense of Realm

Act, 1914b, passed on the outbreak of First World War.

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 any charge formulated. The justification of such

detention is suspicion or reasonable probability of the impending commission of

the prejudicial act and not criminal conviction which can only be warranted by

legal evidence.

Safeguards Various safeguards provided to the detenus under clauses (4) to (7)

of Article 22 may be discussed under the following heads.

1. Review by Advisory Boards

2. Grounds of Detention and Representations

3. Procedure of Advisory Boards

4. Post detention conditions

13

Sch. VII, List I, Entry 9. 14

Sch. VII, List III, Entry 3.

LEGISLATIVE POWER TO ENACT PREVENTIVE

DETENTION ACT

It should be pointed out that the legislative power to enact law of preventive

detention is divided by the Constitution between the Union and the States. The

Union has exclusive power [Entry 9 of List I, 7th Sch.] only when such law is

required for reasons connected with Defense, Foreign Affairs or the Security of

India. A State has power, concurrently with the Union, to provide for preventive

detention for reasons connected with security of the State, maintenance of public

order, or the maintenance of supplies and services essential to the community

[Entry 3 of List III]. A State has therefore a say in the matter of abolishing

preventive detention on these grounds because it is a responsibility of the State

to maintain public order [Entry 1 of List II], production, supply and distribution of

goods [Entry 27 of List II].

So long as the concurrent power of the States to legislate for preventive

detention with respect to the aforesaid grounds remains and any of them feels

the need for retaining or making State laws for preventive detention, it is

practically difficult for the Union Government to impose its will on such States. Till

then, the existence of Art. 22 on the Constitution will be beneficial, rather than

prejudicial, to the cause of liberty, because the validity of such State laws can be

challenged on the ground of contravention of the safeguards laid down in Art. 22.

In these circumstances, Art. 22 continues to be on the Constitution as a necessary

evil.

BIBLIOGRAPHY

Basu, Dr. Durga Das. Introduction to the Constitution of India. (lexis nexis

Buttersworth Wadhwa Nagpur, 2012)

Shukla, V.N. Constitution of India. (Eastern Book Company, 2008)

http://en.wikipedia.org/wiki/Arbitrary_arrest_and_detention