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Submitted to:
Submitted By:
Prof. A. Aravindan
Faculty COLS
CONTENTS
Introduction
International Law
Clause (3)
Bibliography
INTRODUCTION
Arbitrary arrest and arbitrary detention are the arrest or detention of an
individual in a case in which there is no likelihood or evidence that they
committed a crime against legal statute, or in which there has been no
proper due process of law. 1
Arbitrarily arresting or detaining persons contradicts rule of law established
in democracies as well as habeas corpus and is thereafter illegal in those regimes.
In practice in the 2000s (decade), arbitrary arrest or detention (the definitions of
these terms vary between different national jurisdictions) is typically tolerated by
the legal system for a short duration, of a few hours up to a few days, in most
democracies, especially in response to political street demonstrations. It is often a
characteristic of dictatorships or police states, which may also engage in forced
disappearance.
Virtually all individuals who are arbitrarily arrested are given absolutely no
explanation as to why they are being arrested, and they are not shown any arrest
warrant.2 Depending on the social context, many or the vast majority of arbitrarily
arrested individuals may be held incommunicado and their whereabouts can be
concealed from their family, associates, the public population and open trial
courts.[3][4] Many individuals who are arbitrarily arrested and detained suffer
physical or psychological torture during interrogation, as well as extrajudicial
punishment and other abuses in the hands of those detaining them.
1
2
"Freedom from Arbitrary Arrest and Exile". Human Rights Law. United Nations Cyber Schoolbus. 2006-11-09. Retrieved 2007-09-30.
"Human Rights Violations by the Indonesian Armed Forces". Human Rights. Human Rights Watch. 1998-06-27. Retrieved 2007-09-30.
INTERNATIONAL LAW
Arbitrarily depriving an individual of their liberty is strictly prohibited by
the United Nations division for human rights. Article 9 of the 1948Universal
Declaration of Human Rights decrees that "no one shall be subjected to arbitrary
arrest, detention or exile";3 that is, no individual, regardless of circumstances, is
to be deprived of their liberty or exiled from their country without having first
committed an actual criminal offense against a legal statute, and the government
cannot deprive an individual of their liberty without proper due process of law. As
well, the International Covenant on Civil and Political Rights specifies the
protection from arbitrary arrest and detention by the Article 9.4
"Universal Declaration of Human Rights". Human Rights. United Nations. 1998-12-01. Archived from the original on 29 September 2007.
Retrieved 2007-09-30.
4
International Covenant on Civil and Political Rights, Article 9
Provided that nothing in this sub-clause shall authorize 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 the Parliament under sub-clauses (a) and (b) of clause (7).
Right under Article 22(2) of the constitution is available only against illegal
detention by the police and it is not available against custody in jail of a person
pursuant to a judicial order.
[(4) No law providing for preventive detention shall authorize the detention of a
person for a longer period than two months unless an Advisory Board constituted
in accordance with the recommendations of the Chief Justice of the appropriate
High Court and the other members shall be serving or retired Judges of any High
Court:
Provided further that nothing in this clause shall authorize the detention of any
person beyond the maximum period prescribed by a law made by Parliament
under sub-clause (a) 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 cause to disclose facts which such authority considers to be
against the public interest to disclose.
(7)Parliament may by law prescribe
5
Proposed Substitution by the Constitution (Forty-fourth Amendment) Act, 1978, S. 3 for which date of
enforcement yet to be notified as of April 1, 2001.
a) the circumstances under which, and the class or classes of cases in which, a
may be detained for a period longer than three month under any law
providing for preventive detention with the provision 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 any Advisory Board in an inquiry under
sub-clause (a) of clause (4).
(7) Parliament may by law prescribe
6
[(a) 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
7
Proposed amendment: clause (a) omitted and cls. (b) And (c) re-lettered as cls. (a) And (b) by the Constitution
(Forty-fourth Amendment) Act, 1978, S. 3. (Date of enforcement yet to be notified as of April, 2001).
7
Zahira Habibullah Shaikh (5) v. State of Gujarat, (2006) 3 SCC 374, 396.
CLAUSE (3)
Exceptions Clause (3) enacts two exceptions. The fundamental rights
guaranteed to arrest persons by clauses (1) and (2) do not apply: (a) to enemy
aliens; and (b) to persons arrested or detained under any law providing for
preventive detention.
Safeguards Various safeguards provided to the detenus under clauses (4) to (7)
of Article 22 may be discussed under the following heads.
1.
2.
3.
4.
13
14
It should be pointed out that the legislative power to enact law of preventive
detention is divided by the Constitution between the Union and the States. The
Union has exclusive power [Entry 9 of List I, 7th Sch.] only when such law is
required for reasons connected with Defense, Foreign Affairs or the Security of
India. A State has power, concurrently with the Union, to provide for preventive
detention for reasons connected with security of the State, maintenance of public
order, or the maintenance of supplies and services essential to the community
[Entry 3 of List III]. A State has therefore a say in the matter of abolishing
preventive detention on these grounds because it is a responsibility of the State
to maintain public order [Entry 1 of List II], production, supply and distribution of
goods [Entry 27 of List II].
So long as the concurrent power of the States to legislate for preventive
detention with respect to the aforesaid grounds remains and any of them feels
the need for retaining or making State laws for preventive detention, it is
practically difficult for the Union Government to impose its will on such States. Till
then, the existence of Art. 22 on the Constitution will be beneficial, rather than
prejudicial, to the cause of liberty, because the validity of such State laws can be
challenged on the ground of contravention of the safeguards laid down in Art. 22.
In these circumstances, Art. 22 continues to be on the Constitution as a necessary
evil.
BIBLIOGRAPHY
Basu, Dr. Durga Das. Introduction to the Constitution of India. (lexis nexis
Buttersworth Wadhwa Nagpur, 2012)
Shukla, V.N. Constitution of India. (Eastern Book Company, 2008)
http://en.wikipedia.org/wiki/Arbitrary_arrest_and_detention