Write a short essay on constitutional protection against Preventive Detention as granted under Article 22.

Question: Write a short essay on constitutional protection against Preventive Detention as granted under Article 22. [BJS 1977]

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Answer

Article 22 constituted within the right to freedom is one of the parts of the fundamental rights guaranteed under the constitution. This article is covered in two major parts: 1) protection and rights granted in case of arbitrary arrest also known as punitive detention; 2) and safeguards against preventive detention.

Clause 2 of Article 22 provides constitutional protection against Preventive Detention. It states that 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. The rights which constitute under Article 22(2) are briefly discussed as below:

1. Right to be informed about the ground of arrest

Article 22(1) states that any person who is arrested, cannot be detained in custody without being informed of the grounds of any such arrest as soon as possible. Every arrest requires reason and justification, apart and distinct from the power to arrest. In view of this, it was held in the case of Joginder Kumar v. State of U.P. that a detained person should know the cause of his detention and is entitled to let any third person know the location of his detention.

2. Right to be defended by a lawyer of his choice

Article 22(1) also states that any person who is arrested has the right to consult at all times and be defended by a lawyer of his own choice. This right is expanded right from the moment of the person’s arrest.

In the case of Hussainara Khatoon & Ors v. Home Secretary, State Of Bihar, the court held that speedy trial is a constitutional right although it is nowhere explicitly mentioned in the constitution. An investigation should be held as soon as possible and in no case is the state permitted to deny speedy trial on any grounds. It was also stated that in cases of arrest for trivial charges the trial must be completed within six months. It also declared right to free legal aid as a fundamental right.

3. Right to be produced before a Magistrate

Article 22(2) ensures the right of the accused to be produced before a magistrate. When a person is arrested, the person or police officer making the arrest should bring the arrested person before a magistrate or judicial officer without any unnecessary delay. This is also supported by Section 56 of the CrPC.

4. No detention beyond 24 hours except by order of the Magistrate

Article 22(2) also states that no person who is arrested should be detained for more than 24 hours without being produced before a magistrate or judicial authority and getting the detention authorized. This provision helps to keep a check on the investigation of the police regarding the matter at hand and protects the accused from being trapped into wrongful detention.

In the case of State of Punjab v. Ajaib Singh, this right was infringed and thus the victim was provided compensation as a constitutional remedy. It was held that cases of arrest without warrant require greater protection and production of the accused within 24 hours ensures the legality of the arrest, not complying with which would deem the arrest unlawful.

The only exception to rights against preventive detention is given under Clause 3 of Article 22 which states that none of the rights mentioned in clause 1 and 2 of the Article would be applicable for:

• a person who is deemed to be an enemy alien; and
• Anybody who is arrested or detained under the law providing for preventive detention.

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