Tuesday, 31 May 2022

Article 22

 Article 22: Protection against arrest and detention in certain cases

By: Anjali Tiwari

1) No person who is arrested should be held in custody without being notified of the grounds for his detention as quickly as possible, nor shall he be denied the opportunity to consult with and be defended by a lawyer of his choice.

2) Every person who is arrested and detained in custody must be brought before the nearest magistrate within twenty-four hours of their arrest, excluding the time required to travel from the place of arrest to the magistrate's court, and no such person may be held in custody beyond that time without the permission of a magistrate.

3) Clauses (1) and (2) do not apply to: (a) any person who is an enemy alien for the time being; or (b) any person who is arrested or imprisoned under any law requiring preventative detention.

4) No law authorizing preventive detention for more than three months shall be valid 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 end of the three-month period that there is, in its opinion, sufficient cause for such detention.

5) When a person is detained in accordance with an order issued under a law allowing for preventive detention, the authority issuing the order must inform the person of the grounds for the detention as quickly as possible and provide him with the earliest chance to object to the order.

6) Nothing in section (5) requires the authority issuing any such order referred to in that clause to disclose facts that the authority judges to be contrary to the public interest.

7) Parliament may prescribe by law: 

a) the circumstances in which a person may be detained for more than three months under any law providing for preventive detention without first seeking the opinion of an Advisory Board in accordance with the provisions of subclause (a) of clause (4); and the class or classes of cases in which a person may be detained for more than three months under any law providing for preventive detention without first seeking the opinion of an Advisory Board in accordance with the provisions of subclause (a) of clause (4); and 

b) the maximum period for which any person may be detained under any law providing for preventive detention in any class or classes of cases.

Pre – Golak Nath Era

The Indian Constitution was revised in 1951, and the much-discussed Article(s) 31A and 31B were included. Article 31B established the 9th Schedule, which specified that any law enacted under it could not be challenged for violating Article 13(2) of the Constitution's Fundamental Rights. According to Article 13(2), the Parliament shall not create any law that abridges the rights conferred under Part III, and any such law shall be null and void to that extent.

Sajjan Singh v. State of Rajasthan

The constitutionality of the 17th Constitutional Amendment, which added about 44 acts to the 9th Schedule, was decided by a five-judge bench in Sajjan Singh. Though all of the judges agreed with Shankari Prasad's verdict, the concurring opinion by Hidyatullah and Mudholkar JJ cast doubt on Parliament's unrestricted capacity to modify the Constitution and constrain people' fundamental rights for the first time.

Golak Nath v. the State of Punjab

Three writ petitions were consolidated in this case. The first was a protest by Golak Nath's children against the Punjab Security of Land Tenures Act, 1953 being included in the Ninth Schedule. The placement of the Mysore Land Reforms Act in the Ninth Schedule was contested in the other two cases. It is an 11-judge bench decision in which the Hon'ble Supreme Court, by a 6:5 majority, decided that fundamental rights were not covered by the Constitution's amendment, based on the following reasoning: The power of Parliament to change the Constitution is drawn from Article 245, read in conjunction with Entry 97 of List I of the Constitution. Article 368 was explicitly meant to exclusively provide for the Amendment Procedure and nothing more.

The Court further stated that a modification to the Constitution is included in the definition of 'law' under Article 13(2). As a result, any change that violated the Fundamental Rights was null and void.

The argument that the authority to change the Constitution is a sovereign power separate from legislative power and hence beyond the reach of judicial review was dismissed.

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