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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
2

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

"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.

[(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).

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

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


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
9

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.
2.
3.
4.

13
14

Sch. VII, List I, Entry 9.


Sch. VII, List III, Entry 3.

Review by Advisory Boards


Grounds of Detention and Representations
Procedure of Advisory Boards
Post detention conditions

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

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