By Archana S. & Aashima Kakkar
Inter-State Arrest, Transit Remand, and the Right to Legal Representation were recently raised in the wake of the arrest of Disha Ravi, a 21-year-old climate activist.
In the aftermath of her arrest on February 13, 2021, for alleged connection with an online toolkit related to Greta Thunberg and the 2020–2021, the notions of ‘transit remand‘ and ‘norms for inter-state arrests‘ are being actively debated.
Protests by Indian farmers attracted international notice. The toolkit, a common social justice communication and organising document that included a list of ways to help the farmers’ protests, was accused by the Indian government of fomenting disturbance and sedition. The detention drew widespread condemnation both in India and abroad.
Article 22 of the Indian constitution guarantees every person of the country six fundamental rights, one of which is the right to freedom. A country with such a large population like India has a high crime rate. Article 22 assures that each arrested individual facing a trial has competent legal representation.
Thus, this article deals with the concept of Protection under arrest in light of Article 22 and recent events in the country.
What is Article 22?
Article 22 gives protection against arrest and detention in certain cases. Its features are:
- Is applicable to both citizen and non-citizens.
- This provision extends certain procedural safeguards for individuals in case of an arrest.
- It comes into the picture after a person has been arrested it is not a fundamental right against detention and arrest.
- The idea behind the right is to prevent arbitrary arrest and detention.
- The Article provides following safeguards from Article 22 (1 to 7)
“Article 22 – Protection against arrest and detention in certain cases
(1) No person who is arrested 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, a legal practitioner of his choice”
Article 22(1) Any person who is in custody must be informed as to why he has been arrested he has the right to consult any lawyer.
“(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 said period without the authority of a magistrate.”
Article 22 (2) The arrested individual must be produced before a judicial magistrate within 24 hours of his arrest.
“(3) Nothing in clauses ( 1 ) and ( 2 ) shall apply (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.”
Article 22(3) No individual arrested can be kept in custody for more than a period determined by the magistrate.
“(4) No law providing for preventive detention shall authorise 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.”
Article 22 (4) No law provides preventive detention for a period not more than three months, unless an Advisory Board of a qualified judge of the High Court.
“(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.”
Article 22(5) The detained individual should be aware of the grounds for his detention. Also be given an opportunity of making a representation against his/her case.
“(6) Nothing in clause ( 5 ) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.”
Article 22(6) Exceptions to these rules are enemies and Aliens.
“(7) Parliament may by law prescribe
(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions 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 an Advisory Board in an inquiry under sub clause (a) of clause ( 4 ) Right against Exploitation.”
Article 22(7) clause has sub clauses a, b, c where Parliament has a sole power to increase or decrease the detained period above three months. Also decide the procedure for arrest and detention given by the Advisory Board.
What is detention?
There are two types of detentions
Punitive detention is a detention after a trial.
Preventive detention is without trial. Person can be detained only on grounds of suspicion hence the rights of a person arrested in this manner gets governed by preventive detention laws.
Article 22 of Indian Constitution provides protection against such arrest and detention insert in cases in prevention detention under Section 151 of the Criminal Procedure Code 1973.
Preventive detention is an action taken on grounds of suspicion some wrong actions may be done by the person concerned hence a Police officer can arrest an individual without orders from a from magistrate without warrant if he gets any information of such an individual cannot commit any offense.
- Prevention detention is defined under Section 151 of the Criminal Procedure Code of 1973 as “an measure conducted on the basis of suspicion that the person concerned may commit some wrongdoing.” Article 22 of the Indian constitution prohibits arrest and custody in certain circumstances.
- According to Section 167 of the Criminal Procedure Code of 1973, no magistrate can sanction the detention of an accused in police custody until the accused is brought before the magistrate in person. This provision prevents the accused from being held on false or irrelevant charges.
- Nand Lal Bajaj Vs The state of Punjab and Anr. –
Judicial decisions encroach into the scope of Article 22
In this decision, the Supreme Court was adamant that the fundamental system of legislative structure was incompatible with the preventive detention legislation.
It based its reasoning on the fact that the Government is responsible for this. This case law said that frequent Court action in such circumstances could be deemed an infringement on the legislative and executive branches of government.
- AK Gopalan Vs State of Madras –
The question was whether the petitioner’s incarceration under the Preventive Detention Act of 1950 was unlawful and infringed on his personal liberty.
Since his sentencing under conventional criminal law in December 1947, Communist leader A.K. Gopalan has been detained. Those convictions were later overturned. Gopalan was served with an order under Section 3(1) of the Preventive Detention Act, 1950, while in Madras jail on March 1, 1950.
The article empowers the federal government or state governments to detain anyone in order to prevent them from jeopardising national defence, foreign relations, national security, state security, public order, or the supply of important goods and services.
Gopalan sought a writ of habeas corpus against his incarceration under Article 32 of the Indian Constitution. Because of Section 14 of the Act, which prohibits such revelation even in a court of law, Gopalan was barred from divulging the reasons for his detention.
He contended that the order detaining him violated Articles 14, 19, and 21 of the Constitution, as well as the Act’s provisions, which he said infringed Article 22.
After the Supreme Court of India affirmed the constitutionality of this provision, a slew of preventive detention legislation were enacted at various phases of development.
Terrorist activity prevention at POTA. In the year 2019, the Public Safety Legislation of Jammu and Kashmir was changed to include a terror and disruptive action act.
- Joginder Kumar Vs State of Uttar Pradesh –
Established standard reasons for arresting anyone
The case of established standard reasons for arresting anyone; during the trial of this case, the Apex Court established rules for arrest; as a result, this case is known as the “guidelines for arrest case.” Due to the rise in crime rates and indiscriminate arrests over time, the Supreme Court sought to strike a balance between the two in this decision.
- Ahmed Noor Mohammad Bhatti Vs State of Gujarat –
In the case of preventive detention, the individual is free to query the reason for his custody, but the officials may deny it on the grounds of public interest.
Because the clause of the Preventive Detention Act did not take effect, the three-month period is still in effect. The Supreme Court maintained its constitutional legitimacy in 2005, in this case, where the Supreme Court decided that the ability under Section 151(v) of the CrP.C. to convict an individual without even a permit is not truly unconstitutional just because the police officer may abuse his power.
As a result, preventive detention is a crucial tool in the Executive’s arsenal.
In the case of preventive detention, the individual is free to query the reason for his custody, but the officials may deny it on the grounds of public interest, leaving the officials with plenty of room to act arbitrarily.
Article 22 (3)[vi] of the Indian Constitution expressly specifies that when a person is detained under preventive detention legislation, he is not entitled to the protections afforded by Articles 22 (1)[vii] and 22 (2)[viii].
- D.K. Basu Vs State of West Bengal –
Decisions against Custodial Deaths
This is a historic decision by India’s Supreme Court in the context of an increasing number of in-custody deaths. The executive chairman of legal aid services sent a letter protesting the rising number of cases of custody deaths, which the court recognised as a writ petition due to the seriousness of the situation.
In this instance, the Court found that the legislation does not provide an adequate system for dealing with cases of custodial deaths in India.
In its 113th report, the Indian Law Commission recommended that Section 114-B, which deals with the subject of custodial violence, be incorporated into the Indian Evidence Act.
Custodial death is a cause for concern, according to the court, and it is even worse when it is committed by a citizen’s guardian. As a result, the court ruled that this conduct is in violation of Articles 21 and 22 of the Indian Constitution.
It is an obvious violation of the victim’s human dignity and fundamental rights. Due to a lack of evidence against police officers, it can be difficult to prove their guilt. Due to the lack of concrete evidence against these policemen, they were acquitted.
The court also stated that using third-degree methods by police to get information from the accused is prohibited and should not be used, and that the majesty of the law must prevail. As a result, the police have the right to investigate the case and question the suspects, but they are not permitted to use third-degree torture to extract information.
The Court further stated that the government must implement the suggestions made in the law commission report in order to stop these crimes against humanity.
Article 22 as a law looks crystal clear and transparent in nature but it is not what it looks like. This Article has attracted lot of debates and arguments in the Constitution Assembly and is not considered as a perfect law as it opens up a road of infringement.
According to this law Parliament has the sole power to make law sometimes due to that it can take arbitrary decisions that can be against the concerns of the public at large, which infringe the right to speech an expression and right to life and personal liberty of individual even without committing any offense and only if he or she goes against the will or expectations of the ruling party in the state.
Hence one must have mutual respect for the rights granted for each one. As sometimes it can, for the preservation of rights for a huge mass state can restrict some of the rights granted to some of the individuals, specifically those individuals who have the capacity to disturb the mechanism of the society.