Introduction
Article 22 of the Constitution guarantees rights to the arrested and detained persons. Clauses (1) and (2) apply to arrest cases. Clauses (3)-(7) refer to preventive detention where a person is not detained because he has committed some offence, rather, he is prevented from performing certain acts in the future that can endanger the public order and the security of the state. It is a deviation from the normal course of law. It has been allowed as a necessity in post-partition India. But its restrictions have also been provided.
The Constitutional Framework
Section (4) states that no provision shall permit any detention in excess of three months except when it has been reported by an Advisory Board, before the expiration of three months, that there are sufficient grounds for such detention. The members of the Board shall be persons who at the time of their appointment are or have been or are qualified to be judges of a High Court. It does not apply where the maximum period of detention has been fixed under section (7)(a), or where the person is detained under the provision of the law referred to in section (7). Section (5) states that the authority detaining a person shall inform him of the grounds of his detention and afford him the earliest possible opportunity to make representations against the order of detention. Section (6) states that the authority detaining a person can refuse to disclose any information it deems to be prejudicial to public interest.
Role of the Advisory Board
The Advisory Board is the central safeguard. It is meant to be an independent, quasi-judicial check on the executive’s subjective satisfaction. Under the National Security Act, 1980, for example, the government must refer the case to the Board within three weeks, and the Board must report within seven weeks of the detention. If it finds no sufficient cause, the detention must be revoked. However, the detainee has no right to be represented by a lawyer before the Board (clause (3)(b) excludes this and the Supreme Court upheld it in A.K. Roy v. Union of India, 1982), which limits how effective the hearing can be. The 44th Amendment (1978) proposed reducing the initial period to two months and requiring the Board to be chaired by a serving High Court judge, but this amendment was never brought into force.
Judicial Interpretation
The interpretation of these provisions has been done in such a way as to limit the powers of the executive. In A.K. Gopalan v. State of Madras (1950), the Court adopted a restrictive interpretation of the relationship between Article 21 and Article 22; but subsequent cases like Maneka Gandhi v. Union of India (1978) have taken an inclusive approach, making it mandatory for the process of detention to be just, fair and reasonable. The Court has ruled that the grounds of detention need to be certain, relevant and communicated to the detenu in his language (Khudiram Das v. State of West Bengal, 1975), while delay in hearing a representation may render the detention invalid. Rekha v. State of Tamil Nadu (2011) made it amply clear that preventive detention is an exception and cannot be resorted to where ordinary criminal procedure is adequate. The highly controversial case of ADM Jabalpur (1976) was overruled by the K.S. Puttaswamy (2017) case
Critical Analysis
The provisions made in clauses (4)-(7) are not as strong as they appear at first glance. Firstly, the Article 22 provides for detention of an individual without a trial – something which is rarely found in democratic countries during peacetime. The criterion for detention is “the subjective satisfaction” of the detaining authority, which is subject to review on limited grounds by the courts. Secondly, the clause (6) makes provision for non-disclosure of facts, so that the accused may not be able to effectively rebut the charges. Thirdly, the denial of legal representation in the case of the Advisory Board means that the hearing takes place mainly in one-sided manner. Fourthly, there has never been any legislation under clause (7)(a) in parliament, so, in theory, the three month rule applies, while in practice state and central acts, including NSA, provide for up to twelve months of detention, repeatedly extended through the approval of the Advisory Board and a new order. Finally, grounds such as “public order” and “security of the State” leave room for abuse against protesters, activists and even political opponents.
Conclusion
Clauses (4) to (7) of Article 22 reflect a compromise between liberty and security. The framers treated preventive detention as an exception and tried to limit it with time limits, an independent Board and a right to know the grounds. Judicial interpretation has strengthened some of these protections, but gaps in the text and in practice remain. A constitutional democracy must keep preventive detention exceptional, tightly controlled and subject to real scrutiny, so that a power meant to protect the nation does not become a tool against the personal liberty that Article 21 guarantees.
