Author : DIVYA VERMA of Law College Dehradun
There is a need to restrain the liberties of a few people in order to completely enact and adopt the rule of law and for the benefit of a larger part of the society. It is obligatory that the restrain or arrest should be on sound grounds not on anybody’s whims and fancies. Article 22 is one such fundamental right which safeguards the rights of arrested and detained. Person arrested is called as detenu.
- There are total seven clauses in this article. Clause 1 and 2 is related to punitive detention (i.e. when a person is alleged to have committed an offence) whereas clause 4 to7 talks about preventive detention (i.e. when police authorities are suspicious). Civil statutes are not covered under this article.
22(1) well, A person who is arrested has right to be informed of his grounds of arrest and has right to hire legal practitioner to defend, if detenu could not afford can demand free legal service from state. Case – Hussainra khatoon v. State of bihar.
22(2) Every person arrested should be produced before the nearest magistrate within 24 hours of detention excluding travel time and other necessary time. No person shall be detained more than the specified time without authority of magistrate. This is also supported by section 56 of CrPc. Case – state of Punjab v. Ajaib singh.
22(3) It states that the above safeguards are not available to the enemy alien and if the person is arrested under preventive detention laws. The cases of Meneka Gandhi v. Union of india and A.K Roy v. Union of india have played major roles in giving perspective to this clause.
- Centre (in the field of defence, foreign affairs, security of India) and State (laws for maintenance of public order, maintenance of essential service with corporation of centre) has the power given by 7th schedule list 1st and list 3rd to formulate the laws of preventive detention. An advisory board is formed to deal with the cases of preventive detention. Main aim of this is to get prevention from terrorism act and other harmful activities.
22(4) The detention cannot exceed more than 3 months unless advisory board suggests. The maximum time prescribed in the specific preventive detention act should be followed for further extension.
22(5) Similarly like clause 1 and 2 of article 22, grounds of detention should be communicated and Opportunity of representation against the detention should be granted to the detenu.
22(6) However, the facts or the grounds of detention which is considered to be against the public interest need not to be disclosed.
22(7) This clause states that the parliament has got the authority to prescribe the procedure to be followed by an advisory board during enquiry. Parliament can also prescribe the maximum period for which person can be detained in any classes of cases under preventive detention law , parliament can even exceed the detention of three months without obtaining the opinion of advisory board.