Our Constitution contains in Part III six fundamental rights (i) right to equality; (ii) right to liberty; (iii) right against exploitation; (iv) freedom of religion; (v) cultural and educational right and (vi)  right to Constitutional remedy.

The right to liberty (Art. 19) is, like other rights, a fundamental right because it is really ‘fundamental’ in the governance of the country. Moreover, it is enforceable in the sense that an aggrieved person can move the Supreme Court and High Courts under Art. 32 and Art. 226 respectively in case it is infringed by any quarter.

So a citizen has the inalienable right to freedom of speech and expression, to assemble, to form associations or Unions, to move throughout the territory of India and to practise any profession or to carry on any occupation, trade or business.

But, in addition, the citizen can have ‘personal’ freedom.

Under Art. 20, no person can be convicted of any offence except for a violation of the law in force at the time of the commission of the acts of offence. Moreover, Art. 21 states that no person can be deprived of his life and liberty except according to procedure established by law. Above all, according to Art. 22, a person, who is arrested must, as soon as possible, be informed of the ground of such arrest and he must be produced before a Magistrate for trial within a period of twenty-four hours excluding the time necessary for the journey from the spot of arrest to the court of law.

But, the significant point is that under clause (3) (a) and (b), such provision does not apply to an enemy alien or to a person who is arrested or detained under any law providing for ‘preventive detention.’

Under the present system, no person can be so detained for a period of more than two months unless an Advisory Body, consisting of a Chairman (who must be a Judge) and two members, whether serving or retired Judges of a High Court, certifies that there is sufficient reason for such detention. Of courts, as Dr J.C. Johari has observed, the formation of an Advisory Body is a plenary power of the Parliament.

Thus, a person in India can be arrested or detained even without a proved violation of the law. In fact, such arrest or detention is not a punitive act for an actual offence – it is done with a view to preventing a person from committing a probable offence. As D.D. Basu has noted, the object of such arrest is to prevent a prospective crime – it is supposed that a person, unless detained earlier, may do something wrong.

As such, a detenu can rightly allege that he had no intention to do any wrong, but has been penalised without any rhyme or reason. But truly such a provision has been inserted in the Constitution because the Founding Fathers were apprehensive of the danger of the subversive and unlawful activities of some enemy-agents living in India.

Dr S.C. Kashyap has, however, observed that such detention was a common feature of the colonial rule in India.  In fact, such detention was made under the ‘Defence of the Realm Act,’ 1914, and, again, by the regulation made under the ‘Emergency Power (Defence) Act,’ 1939. So, Dr A.C. Kapur has rightly observed “it is a war-time measure”. But now it may not be confined to war and emergency – it may be in vogue even during peace and normalcy.

It is interesting to note that Art. 22 did not exist in the Draft Constitution. Dr V.D. Mahajan has informed that it was added towards the end of the deliberations of the Constitution Assembly. Dr B.R. Ambedkar, the chief architect of the Constitution, held that Art. 21 had been severely criticised outside the Assembly as it had merely prevented the executive from making an arrest. So all that was necessary was to have a codified law allowing the arrest of a person in the greater interest of National security. In other words, what was being done by Art. 22 was a “sort of compensation for what was done by Art. 21.”

But, some critics bitterly criticised the provision in the Constituent Assembly. For example, Bakshi Tek Chand pointed out that no any other written Constitution in the world has made a provision for such detention during normal times. Similarly, Thakurdas Bhargava described it as ‘the crown of our failures’. And, in the view of A.K. Gopalan, it is designed to crush political rivals.

But, instead of being cast down by such criticism, Dr Ambedkar strongly advocated for the inclusion of such an enabling provision in the Constitution. As he observed, “If all of us follow purely Constitutional methods to achieve our objectives, I think, the Constitution would have begin different and probably the necessity of having preventive detention might not be there at all.”

But even the judiciary has taken a critical view in this matter. As Justice Fazl Ali of the Supreme Court held, “In England, it would shock one to be told that a man can be deprived of his personal liberty without a fair trial or hearing” – (Gopalan v. Madras, 1950). The Court subsequently opined that if the preventive law suffered from an infirmity, the detenu might be set free by the court.

However, it is a cardinal fact that the government has never used this power lavishly or with a vindictive motive. A preventive law was enacted in 1950 and 11,000 persons were detained in that year. But the number sharply came down to 205 in 1957, 96 in 1959 and 98 in 1960. It means that this drastic power has never been used extensively or to abolish personal freedom.

 It is also to be remembered that for a period of two decades – from 1950-1970 – such a Parliamentary law continued to exist. It was amended seven times and was extended up to December 1969. It was not further extended, though some of the provinces enacted such a law.

In 1971, Parliament passed a modified version of the PD Act of 1950 under the title ‘Maintenance of Internal Security Act (MISA), which continued until 1978. In 1980, however, the ‘National Security Act’ was passed with the similar purpose.  Of course, there is another law – ‘Terrorist And Disruptive Activities (Prevention) Act.’ but it deals only with terrorism. So it surely means that the dependence on such laws is now in the wane.

Dr SL Sikri has rightly apprehended that such provision may give the government a wide scope for arbitrary rule. In this sense, it is a black spot on the fair face of the Constitution. But, it is to be noted that the Constitution was enacted during an alarming crisis marked by war, partition, riot, communal frenzy and subversive activities of the enemy-agents. So, the Founding Fathers wisely realised that the hard-earned independence and territorial integrity must be protected by some special measures. Art. 22 is surely a crucial and integral part of that protective scheme.

It is a salient fact that some special powers are necessary for the state, because political condition has not improved even after six decades. As Dr H.H. Das has remarked, ‘there is no government which does not enjoy such powers’.  Thus former Chief Justice Patanjali Sastri rightly opined in Gopalan’s case that though Art. 22 seems to be a ‘sinister-looking provision, it is wisely designed to prevent an abuse of freedom by subversive elements who might endanger our national interests in many ways.'

— Nirmalendu Bikash Rakshit

The writer is a Griffith Prizeman, Author and Former Reader, New Alipore College.