According to Article 21 of the Indian Constitution, no person can be deprived of his life or personal liberty except according to procedure established by law. Article 22 of the Indian Constitution Lays down the minimum procedural requirements that should be followed under any law enacted by the legislature which deals with deprivation of a person's life and personal liberty.
Article 22 (1) and (2) can be termed as rights of an arrested person and Article 22 (3) states that protection under clause (1) and (2) will not be available to the enemy alien and to a person arrested under preventive detention laws.
Rights of arrested person -
1) Right to be informed of grounds of arrest
2) Right to be defended by a lawyer of his own choice
3) The right to be produced before a magistrate within 24 hours
4) No detention beyond 24 hours except by order of the magistrate.
Article 22 clause (4) to (7) of the Indian Constitution provide the procedure which is to be followed if a person is arrested under the law of 'Preventive Detention'.
What is preventive detention?
Preventive detention means when a person is kept in custody on an apprehension that he may commit a crime in future. The object of preventive detention is not to punish a man for having done something but to interrupt him before he does it and prevent him from doing it.
Preventive Detention Laws -
Preventive Detention Act, 1950
On 26th February 1950, the first Preventive Detention Act was enacted by the parliament. 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 defense of India, the relation of India with a 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 State governments and certain officers under them to make orders of detention if they were satisfied that it was necessary to detain a person with a view to prevent him from acting in any manner prejudicial to the things mentioned above.
Terrorist And Disruptive Activities (Prevention) Act 1987 (TADA)
This Act was primarily passed with a view to dealing with specific situations of terrorism in Punjab, Kashmir and even part of the North East. The Act vests sweeping powers in the State Governments which in effect means local politicians and the police which is likely to be misused. there where widespread complaints of misuse of the provisions of the act
Constitutional safeguards against preventive detention laws -
Though the constitution has recognized the necessity of law as to Preventive Detention, it has also provided Safeguards to mitigate their harshness by placing fetters on legislative powers conferred on the Legislature. Article 22 clause (4) to (7) guarantee a person certain constitutional safeguards -
1) Review by advisory board
2) Communication of Grounds of detention to detenue
3) Detenue's right of Representation
Protection against arrest and detention in certain cases (Article 22) -
(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.
(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.
(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.
(4) No law providing for preventive detention shall authorize 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:
Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under subclauses (a) and (b) of clause (7).
(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.
(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.
(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).