Constitutionality 5

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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 ofwhich 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 underex 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).

Thus we can say that retrospective effect of the legislation, particularly for the criminal

deeds of the person is not good in law. As we have the cardinal principle of

Jurisprudence that ignorance (mistake) of law has no excuse and no one shallthought to

be ignorant of the law contained in legal maxim Ignorantia juris non excusat or

ignorantia legis neminem excusatand in Roman sayings that nemo censetur ignorare

lege then how can we enact the law with retrospective effect. It is not possible for a

person to foresight in to the future and probe that what kind of law will come into force

in future so that he would not commit or omit the deeds in past.

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

incorporates the principles ofautrefois 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 all further criminal

proceedings for the same offence.

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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

ofnemo 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

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 ofautrefois 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 oncebeen 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 forthe 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 hemight 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 theState 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 notknown 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 offenceconstituted 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 withthe 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 thepurposes of this section.

Illustrations:

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(a) A is tried upon a charge of theft as a servant and acquitted. He cannot afterwards, while theacquittal 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 hurtto 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 fromthe 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 ofautrefois acquitalso.

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 becompelled to be a witness against himself. Thus, this clause embodies the general

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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.

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 compelled6


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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

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 accuseds 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

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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.

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) isnot 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.

InNandini 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

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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.

In State of Bombay v. Kathi Kalu Oghad, (AIR 1961 SC 1808), the majority of 11

Judges Constitution Bench of Honble 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 berelevant 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.

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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.

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

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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

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.

Prisoners 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

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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 get legal assistance

iv. Right to live with human dignity

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

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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).

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.

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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-

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 madeunder 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

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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

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 Courts 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 protectionthan the arrests under such warrants.

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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.

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 inRam 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.

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In Vimal Kishore v. State of Uttar Pradesh (AIR 1956 ALL 1956), the petitioner was

arrested under Section 7 of the Criminal Law Amendment Act, 1932 and was informed

of the Section of the Law. This communication was considered to be insufficient to

make arresting order valid and the grounds given to arrested person should be

intelligible. Justice M. C. Desai observed in this case that if a person is arrested on a

warrant, the grounds or reasons for arrest are to be read over to him. That is sufficient

compliance with the requirement that he should be informed of the grounds of his

arrest, if he is arrested without warrant, he must be told why he has been arrested. If he

is arrested for committing an offence, he must be told that he has committed a certain

offence, for which he would be place on trial. In order to inform him that he has

committed certain offence, he must be told of the acts done by him which amount to the

offence. He must be informed of precise act done by him for whom he would be tried,informing him merely of the law applicable to that would not be enough. Further it is

observed that conveying the frounds of arrest will enable him to prepare for his defence

well in time and give him an opportunity to meet the case against him. This also gives

an opportunity to arrest person to be in a position to tile appropriate application for bail

or move the competent Court of a writ ofhabeas corpus, if necessary.

It seems that the decision of the Court is analogous with the provisions of the Code of

Criminal Procedure and the Article 22 of the Constitution. It is constitutional mandateunder Article 22 that if the person is arrested he should as soon as may be

communicated with the grounds of his arrest. Hence communicating the grounds of

arrest as early as after the arrest is not only formality but a constitutional and legal

mandate which is to be observed by the arresting officer. The using of words as soon as

may be in Article 22 (1) would mean that information just be given within reasonable

time and if there is any delay on behalf of the arresting authority, there must be some

valid reason which justify the delay.

In State of M. P., Advocate General for the State of Madras; Advocate General for the

State of Gujrat; Advocate General for the State of Kerala v. Shobharam (AIR 1966

Supreme Court 1910 ), Justice Sarkar observed that it seems fairly clear that a person

arrested has the constitutional right to consult a legal practitioner concerning his arrest.

It is also clear that a person arrested has the constitutional right to be defended by a

legal practitioner. In this case Justice Hidayatulla reaffirmed that arrest is arrest,

whatever the reason in so far as the first part of Article 22 (1) is concerned it enacts avery simple safeguard for persons arrested. It merely says that an arrested person must

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be told the grounds of his arrest. In other words, a persons personal liberty cannot be

curtailed by arrest without informing him, as soon as is possible, why he is arrested.

Where the arrest is by warrant, the warrant itself must tell him, where it is by an order,

the order must tell him and where there is no warrant or order, the person making the

arrest must give him that information

In a notable judgment inJoginder 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.

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

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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 Gandhis 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 Ghandhis 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.

InHussainara 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

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.

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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 otherauthority 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.

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 police or arresting authority without warrant. Right to be brought before aMagistrate without delay is very important right of the accused person. The object of

such production of the arrested person before the nearest Magistrate is to ensure that no

one is deprived of his personal liberty arbitrarily.

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 ofhabeas corpus available to every citizen of this country under Article 226 of the

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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

Courts jurisdiction by way of Habeas Corpus. (Poovan v. Sub-Inspector of Police,

KERALA, 1993 CR.L.J.)

In State of U. P. v. Abdul Samad (Air 1962 SC 1506), the Supreme Court held that if 24

hours have passed without compliance with the requirement of Article 22 (2), the

arrested person is entitled to be released forthwith. In this case, the respondent Abdul

Samad and his wife were in India on Pakistani Passport and were given a visa for a

temporary stay. They wanted to prolong their stay in India and applied for registration

as the Indian citizens. Their applications having been rejected and served with

deportation order to leave the country within twenty-four hours. They were taken to

Amritsar from Lucknow for deportation, but were bought back to Lucknow for certain

reasons, following an application for habeas corpus moved in the State High Court for

their release. They arrived at Lucknow in the afternoon of 25 th July 1960 and were

produced before the registrar of the Lucknow bench of Allahabad High Court and were

directed to be produced again at 10-15 a.m. next day before the Court. The Court, in its

turn, ordered them to be brought before it in the afternoon dated 27th

July 1960. TheSupreme Court held that the condition insisted by Article 22 (2) was satisfied by

intervention of high Court and the respondents could not be released for any alleged

contravention of the condition by the authorities.

A person arrested can be detained by the police officer and twenty-four hours is the

maximum period permissible. However, this does not mean that there is an absolute

right to detain an arrested accused person till the end of that period of twenty-four

hours. An envisaged in Section 57 the reasonable period is the minimum period and

twenty-four hours is the maximum period. The requirement of production before the

Magistrate is dispensed with if the person is discharged on bail or released otherwise

within twenty-four hours of his arrest or if detention is under preventive detention law.

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

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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.

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) SCC504], A Womens Resources Center v. Commissioner of Police [(1990) 1 SCC 422].

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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). All these cases has been discussed in detailed under Chapter 8 of this research

thesis.

PREVENTIVE DETENTION LAWS

Prof. D. C. Chaturvedi in his book Indian Fundamental Rights (1982 p. 143) has aptly

pointed out that preventive detention is unknown in America, that is resorted to in U. K.

only during war time, and that no other country in the world has made it an integral part

of the Constitution as has been given to it in the Constitution of our country, its roots

should be traced elsewhere. It is fact that the weapon of preventive detention was

employed by the British in our Country at all times, during the normal times no less

than during emergency.

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 actlikely 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

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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.

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 aperson 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 daysfrom the date of detention, extendible to 10 days in exceptional cases. Within 3 weeks

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the Government is required to place grounds of detention along with detenus

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 countrys 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.

InA. 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;

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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

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

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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. Detenues 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

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 44 th 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

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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. Detenues right of representation:

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 factsand 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

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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

Thus, the rights of accused, undertrial prisoners and convicts are very well safeguarded

by the Indian Constitution. The protection against retrospective laws, double jeopardy,

and self incrimination including the right to silence is the fundamental of these rights.

The Right to life and Personal Liberty as enshrined under Art. 21 of the Constitution is

the basis of all the fundamental rights guaranteed to these classes of persons under the

Constitution.

The Right against and protection from arbitrary arrest and detention including the

preventive detention is the shield against the barbarism of police and prison authority.

The Supreme Court of India, the protector and preserver of the Constitution of India by

its judicial activism in favour of these suppressed class enlarged the notion of these

rights. The Prison Jurisprudence and Police Jurisprudence formulated and fabricated by

the Indian judiciary nevertheless forms the basis of protector of Constitutionality of the

Rights of accused, undertrial prisoners and convict under the Constitution and in other

criminal laws of India.

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Compulsory Hard Prison Labour and Prisoners Right to receive wages

vis--vis Article 23 of the Constitution.

405 of Kamalakar Pandit

Constitutionality 5

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