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Monday, November 8, 2021

Preventive Detention and Article 22 of the Constitution of India - Views of the Supreme Court

 



INTRODUCTION 

  

Today, I will talk about the case of Sarabjeet Singh Mokha v. District Magistrate, Jabalpur & Others, 2021 SCC OnLine SC 1019, wherein the Hon’ble Supreme Court discussed the law relating to Preventive Detention in India in the context of Article 22 of the Constitution of India. The facts of the case are not relevant for the purposes of this show and hence, the same are not being discussed here.

 

MEANING

 

Black’s Law Dictionary, Eighth Edition, defines ‘preventive detention’ as “confinement imposed usually on a criminal defendant who has threatened to escape, poses a risk of harm, or has otherwise violated the law while awaiting trial, or on a mentally ill person who may cause harm.”

 

ARTICLE 22 OF THE CONSTITUTION

 

With respect to Preventive Detention, Article 22 (4) states that “no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless” a Competent Advisory Board opines that there is sufficient cause for extending the detention period or such person is detained under any special law made by the Parliament. Further, Article 22 (5) states that “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.”  

 

Now, let us move on to the observations made by the Court to understand Article 22 and Preventive Detention in a better manner.

 

OBSERVATIONS BY THE COURT

 

Firstly, the Court observed that “the text of Article 22 enshrines certain procedural safeguards, many of which are otherwise available in the CrPC. In elevating these safeguards to a constitutional status, the framers imposed a specific “limitation upon the authority both of Parliament as well as State Legislature to not abrogate” rights that are fundamental to India's constitution.”

 

Secondly, the Court explained that “Article 22(5) of the Constitution mandates that: -

 

(i) The authority making the order shall “as soon as may be” communicate the grounds on which the order has been made to the person detained; and

(ii) The detaining authority shall afford to the person detained “the earliest opportunity of making a representation against the order.”

 

Further, “Clause 5 of Article 22 incorporates a dual requirement : first, of requiring the detaining authority to communicate the grounds of detention as soon as may be; and second, of affording to the detenu “an earliest opportunity” of making a representation. Both these procedural requirements are mutually reinforcing. The communication, as soon as may be, of the grounds of detention is intended to inform the detenu of the basis on which the order of detention has been made. The expression “as soon as may be” imports a requirement of immediacy.”

 

Thirdly, the Court also noted that “the communication of the grounds is in aid of facilitating the right of the detenu to submit a representation against the order of detention. In the absence of the grounds being communicated, the detenu would be left in the dark in regard to the reasons which have led to the order of detention.”

 

Fourthly, the Court clarified that “when the life and liberty of a citizen is involved, it is expected that the Government will ensure that the constitutional safeguards embodied in Article 22(5) are strictly observed. We say and we think it necessary to repeat that the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws.”

 

Fifthly, the Court also stated that “Article 22(4), in guaranteeing a right to make a representation to the detenu, understandably creates a corresponding duty on the State machinery to render this right meaningful” and “this right would ring hollow without a corollary right of the detenu to receive a timely communication from the appropriate government on the status of its representation-be it an acceptance or a rejection.”

 

And lastly, the Court cited the case of Frances Coralie Mullin v. W.C. Khambra, (1980) 2 SCC 275, wherein the Court reiterated the principles relating to Preventive Detention as follows: -

 

“a. The detaining authority must provide the detenu a very early opportunity to make a representation.

b. The detaining authority must consider the representation as soon as possible, and this, preferably, must be before the representation is forwarded to the Advisory Board.

c. The representation must be forwarded to the Advisory Board before the Board makes its report.

d. The consideration by the detaining authority of the representation must be entirely independent of the hearing by the Board or its report, expedition being essential at every stage.”

 

ENDING REMARKS

 

Thus, I hope that the law relating to Preventive Detention in light of Article 22 of the Constitution of India is clear by now.  

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