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LIBERTY V/S DETENTION A CONSTITUTIONAL CONFLICT BETWEEN 

Case Comment, Publications

ARTICLE 21 AND ARTICLE 22

ABSTRACT

Liberty and detention are the two crucial aspects in the modern system of governance. Article 21 deals with all forms of liberty given to individuals by the law. On the other hand, Article 22 provides a detailed analysis of the arrest and detention guidelines. However, both the articles are complimentary since in order to adopt rule of law and for the benefit of the society, it is necessary to restrain the liberties of some individuals. This creates a sort of conflict between the individual liberty and the state’s authority to maintain security through arrest and detention. It outlines the various legal, ethical and moral questions about the extent of state security and the safeguard of individual liberties.

This paper examines the balances and compromises involved in protecting individual liberty and state detention for public order and security. It also focuses on how liberty and detention co-exist in Indian constitutional framework and evaluates how the arrest and detention guidelines under Article 22 coincide with the liberties of the individual in Article 21. 

Thorough a detail analysis of key constitutional provisions, significant case laws and judicial interpretations, this paper throws a light on how Indian legal systems deal with the conflict between liberty and detention. 

KEYWORDS

Liberty, Detention, Article 21, Article 22, Rule of Law, State Security, Constitutional framework, Case Laws, Judicial Interpretations, Public Security

INTRODUCTION

Liberty refers to the absence of restrictions on the individual. It refers to the rights and privileges available to the individuals without any interference from the states. All the individuals have rights related to personal autonomy and freedom, freedom to speak, move and rights related to unlawful detention. Philosophically, various types of liberties are recognized such as natural, political, civil, religious, economic and moral, each playing an important role in protecting the rights of the individual. 

On the other hand, detention means holding someone in custody or confinement. It involves restricting someone’s freedom for public order and state security. Detention can take various forms such as criminal, administrative, civil, and preventive.  The maintenance of balance between the two aspects is a crucial issue in the modern system of governance. 

The Constitution of India provides right to life and personal freedoms to the citizens of India. However, there are powers with the state to arrest individuals for the sake of security of the nation and public order. Indian laws such as the Unlawful Activities Prevention Act (UAPA) of 196, National Security Act of 1980 and the Preventive Detention Act allows the government to arrest subversive persons without trial under certain situations. These laws are enforced to deal with issues like terrorism and crime, however they often raise concerns regarding the unlawful and arbitrary detention. Critics argue that the vague criteria of detention and lack of transparency can cause a violation of liberties and rights available to humans. 

Human rights and individual liberties safeguards are also enshrined in the significant documents such as the International Covenant on Civil and Political Rights (ICCPR) and Universal Declaration of Human Rights (UDHR).  All of these instruments highlight the importance of liberty. Additionally arrest and detention is also very much important since it protects the nation from crimes, external threats, and terrorism. Thus, the balance between liberty and detention is very crucial because it directly affects individual rights, public security and judicial system.

RESEARCH METHODOLOGY

This research paper adopts a doctrinal legal approach, highlighting the constitutional conflict between liberty and state powers of detention. Primary sources like the constitutional texts, landmark judgments ( such as the case of A.K. Gopalan v. State of Madras, Maneka Gandhi v. Union of India), detention laws like the NSA and UAPA are employed. Secondary sources include the academic texts, case law analysis, and BNSS. 

REVIEW OF LITERATURE

From the colonial era to the present day, the evolution of liberties and state security reflect the struggles in upholding the individual liberties in the face of state powers. During the British rule, there were massive conflicts between the liberties and detention. Repressive colonial laws like the Rowlatt Act of 1919 enabled the government to detain individuals without any questioning or trial, leading to violent protests like the Jallianwala Bagh massacre. Prominent leaders such as Mahatma Gandhi and Jawaharlal Nehru were detained and the liberties of the Indians were curbed. Post independence, after the framing of the constitution, several provisions were introduced for safeguarding the liberties of the citizens (Article 21). However, several reasonable restrictions were imposed in the form detention guidelines in the interest of the general public and national security. Indian constitution creates a balance between liberty and detention. For instance, laws such as NSA and UAPA give absolute power to state in cases of terrorism and other security threats, but constitutional scrutiny and judicial frameworks make sure that the states do not encroach upon the liberties and abuse this power. 

  1. PROVISONS OF LIBERTY AND DETENTION UNDER INDIAN CONSTITUION
  • Article 21 mandates that “Every person has a right to live and personal freedom, except in case of the rules and regulations established by law.” 
  1. Right to Life: It is not only concerned with the mere survival but also includes the rights of an individual to live with dignity, health, shelter, information, and education.
  1. Right to Personal Liberty: It included liberty and freedom from unlawful detention, right to privacy and the right of persons to make choices freely without any government interference. The Right of Privacy was recognized as a part of the Article 21 fundamental right in the famous case of Justice K.S Puttaswamy v. Union of India (2017).
  1. Procedure established by law: It means that these liberties could be restricted if any law is enacted following the correct legislative procedures.
  • Article 22 of the Constitution of India provides safeguards to persons against arbitrary and unlawful detention. It contains various provisions for the protection of the individual liberty. 

Punitive Detention: It occurs after the act or crime has occurred. It is only applicable under ordinary laws. The clauses of this detention are:

  1. Article 22 (1) declares that the detained person has the right to be informed of the reasons of his arrest. The person can also consult a legal practitioner and defended by him.
  2. Article 22 (2) mandates that the arrested person must be presented before a magistrate within 24 hours. These 24 hours will not include the journey time from the place of arrest to the magistrate court.
  3. Article 22 (3) declares that all the protections available under Clause (1) and (2) do not apply to enemy nationals or someone arrested under the provisions of preventive detention laws and regulations.

Preventive detention: It occurs to prevent someone from doing a crime. When a crime is apprehended, preventive detention is made. It is only applicable under preventive detention laws. It contains the following clauses:

  1. Article 22 (4) states that a person cannot be kept in detention for more than three months if it is not approved by the advisory board.
  2. Article 22 (5) states that the arrested person under the preventive detention guidelines must be communicated about the reasons for his or her arrest. He must also be given the earliest possible opportunity to present himself against the detention.
  3. Article 22 (6) provides that if the information to be given to the detenue is against the public interest, then such information must not be disclosed.
  4. Article 22 (7) states that the Parliament can make laws regarding preventive detention.
  1. STATUTARY PROVISIONS DEALING WITH LIBERTY AND DETENTION
  • The Bharatiya Nagarik Suraksha Sanhita (BNSS): The Bhartiya Nagarik Suraksha Sanhita provides the arrest and detention guidelines in criminal cases. The various provisions related to the rights of the arrested person and the procedure which legal systems must follow include:
  1. Section 35 states the situations under which a police officer can arrest a person without any warrant or a magistrate order. 
  2. Section 47 states that the arrested person must be informed about the reasons of his arrest and the rights available with him to get a bail.
  3. Section 56 deals with the health and safety of the detained person.
  4. Section 57 mandates that the arrested person should not be detained for more than 24 hours.
  • The Bhartiya Nyaya Sanhita (BNS): Section 126 of the BNS outlines the crime of wrongful confinement, which involves the unlawful restriction on a person’s movement. Section 127 of the BNS deals with the wrongful restraint of a person. 
  • The Preventive Detention Act of 1950 stated that a person could be detained without any trial if his freedom posed a threat to the security of the nation. 
  • The National Security Act of 1980 allows the Indian government to detain individuals if it is found that they cause a threat to the integrity of the country. The central and state government can detain a person for up to 12 months without any trial. 
  • The Unlawful Activities (Prevention) Act (UAPA) of 1967 mainly combats terrorism related activities. It prevents all those unlawful activities and associations that cause a threat to the nation. According to this law, a person can be detained for up to 180 days without any investigations or formal charges.

All the above provisions depict the state’s responsibility in maintain state security and public order ensuring that the fundamental rights are not compromised at the expense of state security.

KEY CASE LAWS

  1. A.K. Gopalan v. State of Madras

Facts

This is a landmark case in the Indian legal history dealing with the analysis of individual liberty and preventive detention under the Indian Constitution. A.K Gopalan was a communist leader who was kept in judicial custody due to various charges and trails on him since 1947. In the year 1950, Mr. Gopalan was arrested under the provisions of Section 3(1) of the Preventive Detention Act, 1950. The provisions allow the central or the State Governments to apprehend a person without any trial if he poses a threat to the national defence, foreign relations, national security and public order.

A.K Gopalan lodged a petition in accordance with Article 32 of the Constitution (Habeas Corpus Writ) against this order. He asserted that the order passed under Section 3(1) of the Preventive Detention Act violated the various fundamental rights given under Article 13, 19, 21, and 22 of the Constitution of India. He stated that the natural justice principle and the concept of procedure established by law were not followed in his case.

Issues

  1. Whether the laws of Preventive Detention Act, 1950 violate Article 13, 19, 21 and 22 of the Constitution of India?
  2. Whether the concept of procedure established by law in India is same as the concept of due process of law?
  3. Whether Articles 19, 21 and 22 are related to each other?
  4. Whether the principle of natural justice was followed in this case?

Judgement

  1. Article 21 which states about the concept of procedure established by law would simply mean that procedure, which is established by the state i.e., legislature or appropriate authority. Thus, the preventive detention act does not violate the personal liberties mentioned under Article 21.
  2. The Supreme Court held that the laws of the Preventive Detention Act, 1950 do not contravene Article 19. 
  3. Article 19 which protects the freedom of the individuals is not applicable to those citizens whose liberties are restricted by law. So, the questioning of Article 19 (1) by the petitioner was not valid.
  4. There is no connection between Article 19 and Article 21. 
  5. The Supreme Court held that the principle of natural justice was not violated in this case.

Thus, the writ petition lodged by A.K Gopalan was rejected by the Supreme Court.

  1. Maneka Gandhi v. Union of India

Facts of the case

It is a historic case that amplified the scope of the fundamental rights given in Article 21 of the Constitution.  It is also known by the name of Personal liberty case.

A journalist and environmentalist named Maneka Gandhi got her passport on 1st June, 1976 under the Passport Act, 1967. Later, on 4th July, 1967, she was issued a letter from the regional passport office ordering to surrender her passport under Section 10 (3)(c) of the act. She was required to surrender her passport within 7 days from the receipt of the letter.

In reply of this, Maneka Gandhi immediately wrote a letter to the regional passport office inquiring about the reasons or the basis on which such an order was made. However, the Ministry of External affairs declined to produce any reasons for making this order and stated that it was decided by the government in the interest and welfare of the general public.

Therefore, Maneka Gandhi filed a petition in accordance with Article 32 of the constitution, challenging the government’s order to surrender her passport and declining to give any reasons for passing such an order. She contended that the order passed under this act directly affected her personal liberties specified under Article 21 of the Constitution. She also citied the example of Satwant Singh Sawhney v. Ramarathnam case where the Supreme court ruled that travelling abroad is a right available to the citizens under Article 21.

Issues

  1. Whether the rights guaranteed under Article 14, 19, and 21 of the Indian Constitution are interconnected or mutually exclusive?
  2. What is the extent of the concept of “Procedure established by law”
  3. Is travelling abroad a right included within Article 21?
  4. If a legislative law disturbs right to life, is it reasonable?

Judgement

  1. Referring to the earlier case of Satwant Singh Sawhney v. Ramarathnam (1967), the apex court ruled that travelling abroad is a right included under personal liberty of Article 21.
  2. The judgment given in the Gopalan Case was overturned and the Court held that there is a unique relationship between the various fundamental rights mentioned under Article 14, 19 and 21 of the constitution (Golden Triangle) and every law must pass the provisions given under these articles.
  3. A broad interpretation of the “procedure established by law” was given by the Supreme Court, stating that it should not only be legal but also fair, just, reasonable and non-arbitrary. This introduced the concept of “due process of law”.
  4. It was ruled that there was a clear contravention of Audi alteram partem or the principles of natural justice.
  5. The court also ruled that Section 10 (3) (c) of the Passport Act, 1967 provides that state can seize the passport of the person who pose a threat to the security and harmony of the nation. But it is necessary that the state should record the reason for seizing the passport in writing and forward a copy of this record to the passport holder.
  1. DK Basu v. State of West Bengal

Facts

Dilip Kumar Basu, a chairman of Legal Aid Services brought the attention of the court to the issue of custodial violence and deaths. On 26th November, 1986, Mr. DK Basu wrote a letter addressed to the Chief Justice of India. The letter was about the reports of custodial brutalities published in the newspaper. DK Basu urged Justice Ranganath Mishra, the Chief Justice of India, to consider this issue as of grave concern. Considering the seriousness of this case, the Chief Justice considered this letter as a Habeas Corpus writ petition and invoked the original jurisdiction outlined in Article 131 of the Constitution of India.

Subsequently, Ashok Kumar Johari sent a similar letter which was about the death of Mahesh Bihari in Aligarh police custody . The Supreme Court took both the letters into account and decided to hear the matter related to Custodial Violence. On 14th August 1987, the Court issued a notice to all the states regarding their response on custodial death.

Issues

  1. Whether the brutalities with the persons in custody and their subsequent deaths violated the life and liberty rights given in Article 21 of the Constitution of India?
  2. Is there any requirement for re-reframing the arrest and detention guidelines?
  3. Increasing number of deaths due to Custodial Violence.
  4. Do the persons in custody have a right to life?

Judgement

It was declared by the Supreme Court that the detained persons and prisoners should not be deprived of their rights under Article 21. The Court issued the following guidelines with regard to the custodial violence and deaths:

  1. The police officer arresting or detaining a person should have a precise and clear identification and name tags. The details of the officer who will interrogate with the arrested person must be documented accurately in a register.
  2. The police officer arresting the accused person must create an arrest memo. It should have the details related to the arrest. The arrest memo has to be attested by at least 1 witness and signed by the arrestee.
  3. The arrested person has a right to communicate the information of arrest to his friends or relatives.
  4. All the details related to the time and place of arrest and custody must be communicated by the police officers. In case, the relative or friend of the arrested person lives out of the village or district, they should be informed within 8 – 12 hours through the legal aid organization or the police station of that concerned area.
  5. The arrest of the person has to be entered in the diary at the place of detention. It must also have the details of the relative or friend of the arrestee who knows about the arrest. The details of the police officers involved in the arrest must also be mentioned.
  6. If the arrestee requests, an examination must be conducted and every minor or major injury that happened on the arrested person’s body must be recorded. The arrestee and the police officer should sign an “Inspection memo” and a copy of memo must be given to the arrestee.
  7. A medical examination of the arrestee must be conducted within 48 hours of the detention. The doctors approved by the Health Services Director must conduct this medical examination.
  8. For records, a copy of every document including the arrest memo and inspection memo must be forwarded to the magistrate. 
  9. The arrested person can meet his lawyer during interrogation. However, this is not permitted during the entire process of interrogation.
  10. It is necessary to establish a police control room in all the states and districts. The police officer must inform the police control room about the arrest and place of custody within the time limit of 12 hours.

All the above cases depict the conflict between the liberties and detention in India. These cases signify the struggles in the balance between liberty (Article 21) and detention (Article 22).

DISCUSSION AND LEGAL ANALYSIS

A balance between liberty and detention is a tough task, especially in a democratic nation like India. Liberty is the most important fundamental right guaranteed under Part III, Article 21 of the Constitution of India. However, there are situations when the liberty is curtailed such as emergency or in case of any threat to the safety and stability of the nation. The key aspect in this constitutional conflict is that such restrictions should be just, fair, reasonable, and in accordance with the law and they should not encroach upon the freedoms and rights available to the citizens.

The above case laws prove that the judiciary has played a remarkable role in striking a balance between Article 21 and Article 22. Earlier, before the passing of new criminal laws, Section 41, 167, 436 to 439 of the Code of Criminal Procedure (CrPC), 1973 provided important insights on the individual liberty and detention. Presently, Section 35, 47, 56, and 57 of the new criminal law BNSS also provides a detailed analysis of the arrest and detention guidelines which makes sure that the essence of liberty is not lost.  

Therefore, the Constitution of India along with the Statutory provisions keeps a check that Article 22 does not encroach the fundamental rights mentioned under Article 21.

CONCLUSION

Considering everything, it is clear that the balance between liberty and detention is a complex and delicate issue. Although detention is necessary for maintain public order and security, recognizing rule of law and the liberties of the individuals is equally important. Regulations like the NSA and UAPA are criticized for prolonged detention and limiting the liberties of the individuals, but it is very important for the security of a democratic country like India. 

To maintain a more perfect balance between liberty and detention, measures such as judicial review, regular review of detention cases, right of individuals to be represented, and misuse of detention powers must be taken into account. Law enforcement agencies should adopt strengthening oversight mechanisms and public awareness should be fostered. These measures will lead to a harmony between liberty and detention, establishing a just, fair and equitable legal system.

Name: Rayyan Yaseen

College: Amity Law School, Lucknow