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GS Paper: GS2-01.Indian Constitution-Historical underpinnings & evolution; Features, amendments, significant provisions, basic structure of Constitution

  • Domicile Based Job Quota

    The Jharkhand Assembly has passed a Bill, which provides 75% reservation for local people in the private sector up to ₹40,000 salary a month.

    Try answering this PYQ first:

    Q.One of the implications of equality in society is the absence of- (CSP 2018)

    (a) Privileges

    (b) Restraints

    (c) Competition

    (d) Ideology

    What is the move?

    • Every employer shall register such employees receiving gross monthly salary as wages not more than ₹ 40,000 as the limit notified by the government from time to time on the designated portal within three months of the Act coming into force.
    • Every employer shall fill up 75% of the total existing vacancies on the date of notification of this Act and subsequent thereto by local candidates with respect to such posts where the gross monthly salary or wages are not more than ₹40,000”.
    • The Bill provides for the local MLA to supervise the employment procedure and issue directions to the employer concerned as it may deem fit.

    Other such states

    • Once notified, Jharkhand will become the third State in the country, after Andhra Pradesh and Haryana, to pass such law.
    • In 2019, Andhra Pradesh passed such law, while in June last, Haryana passed law, reserving 75% quota for the local people in private jobs with monthly salary less than ₹50,000.

    What is Quota for Locals?

    Ans. Constitutional provision for Equal Treatment

    • Article 16 of the Constitution guarantees equal treatment under the law in matters of public employment. It prohibits the state from discriminating on grounds of place of birth or residence.
    • Article 16(2) states that “no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State”.
    • The provision is supplemented by the other clauses in the Constitution that guarantee equality.
    • However, Article 16(3) of the Constitution provides an exception by saying that Parliament may make a law “prescribing” a requirement of residence for jobs in a particular state.
    • This power vests solely in the Parliament, not state legislatures.

    Why does the Constitution prohibit reservation based on domicile?

    • When the Constitution came into force, India turned itself into one nation from a geographical unit of individual principalities and the idea of the universality of Indian citizenship took root.
    • India has single citizenship, and it gives citizens the liberty to move around freely in any part of the country.
    • Hence the requirement of a place of birth or residence cannot be qualifications for granting public employment in any state.

    But are reservations not granted on other grounds such as caste?

    • Equality enshrined in the Constitution is not mathematical equality and does not mean all citizens will be treated alike without any distinction.
    • To this effect, the Constitution underlines two distinct aspects which together form the essence of equality law:
    1. Non-discrimination among equals, and
    2. Affirmative action to equalize the unequal

    Supreme Court rulings on quota for locals

    • The Supreme Court has ruled against reservation based on place of birth or residence.
    • In 1984, ruling in Dr Pradeep Jain v Union of India, the issue of legislation for “sons of the soil” was discussed.
    • The court expressed an opinion that such policies would be unconstitutional but did not expressly rule on it as the case was on different aspects of the right to equality.
    • In a subsequent ruling in Sunanda Reddy v State of Andhra Pradesh (1995), the Supreme Court affirmed the observation in 1984 ruling to strike down a state government policy that gave 5% extra weightage to candidates.
    • In 2002, the Supreme Court invalidated appointment of government teachers in Rajasthan in which the state selection board gave preference to “applicants belonging to the district or the rural areas of the district concerned”.
    • In 2019, the Allahabad HC struck down a recruitment notification by the UP PSC which prescribed preference for women who are “original residents” of the UP alone.

  • Freedom of Movement and Residence

    The rights to free movement and residence across India cannot be curtailed on flimsy grounds, a Bench of Justices Indira Banerjee and V. Ramasubramanian held in a judgment.

    Freedom of Movement and Residence

    • Article 19(1)(d) and (e) of the Indian Constitution guarantees to every citizen of India right to move freely throughout the territory of India and to reside and settle in any Part of the of the Territory of India.
    • This right is subject to reasonable restrictions imposed by law in the interest of the general public or for the protection of the interests of any Scheduled Tribes.

    (A) Freedom of Movement under Article 19(1)(d)

    • All Citizens of India have the right “to move freely throughout the territory of India.
    • This Right is, however subject to reasonable restrictions mentioned under Article 19(5).

    Restrictions:

    • This clause (5) empowers the State to impose reasonable restrictions in the interest of the general public or for the protection of the interest of any Scheduled Tribe.
    • Kharak Singh V. State of UP (1963) Case: The Supreme Court held that the right to move freely throughout the territory of India means the right of locomotion which connotes the right to move wherever one likes, and however one likes.
    • State of UP V. Kaushalya Case (1964):  In this case, the Supreme court held that the right of movement of prostitutes may be restricted on grounds of Public Health and in the interest of Public Morals.

    (B) Freedom of Resident under Article 19(1)(e)

    • Article 19(1)(e) of the Indian Constitution guarantees to every citizen of India, the right “to reside and settle in any part of the territory of India”.
    • This right is subjected to reasonable restrictions which may be imposed by the State in the interest of the general public or for the protection of the interest of any Scheduled Tribe.

    Some facts

    • The Freedom of Movement and Residence apply only to citizens of India and not the Foreigners.
    • A foreigner cannot claim the right to reside and settle in the country as guaranteed by Article Article 19(1)(e).
    • The Government of India has the power to expel foreigners from India.

    Why in news, now?

    • The Supreme Court has held that the power of the State to pass an externment order or a direction barring certain people entry to specified areas should be exercised only in “exceptional cases”.
    • The court said externment orders have their use in maintaining law and order.
    • However, they cannot be employed as a vindictive or retaliatory measure.
    • The drastic action of externment should only be taken in exceptional cases, to maintain law and order in a locality and/or prevent breach of public tranquility and peace, the court noted.

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    Back2Basics: Article 19

    Article 19(1) states that All citizens shall have the right:

    • (a) to freedom of speech and expression;
    • (b) to assemble peaceably and without arms;
    • (c) to form associations or unions;
    • (d) to move freely throughout the territory of India;
    • (e) to reside and settle in any part of the territory of India; and
    • (f) omitted
    • (g) to practice any profession, or to carry on any occupation, trade, or business

  • Delhi HC observations on Right to be Forgotten

    The Delhi High Court upheld the view that the “Right to Privacy” includes the “Right to be Forgotten” and the “Right to be Left Alone”.

    Right to be Forgotten in India

    • The Right to be Forgotten falls under the purview of an individual’s right to privacy, which is governed by the Personal Data Protection Bill that is yet to be passed by Parliament.
    • In 2017, the Right to Privacy was declared a fundamental right by the Supreme Court in its landmark verdict.
    • The court said at the time that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution”.

    What was the recent case?

    • The TV celebrity had moved Delhi High Court with the plea that orders be issued to Google and relevant entities to facilitate the removal of posts, videos, articles and any information related to incidents that he was involved.
    • His plea cited that his presence on the internet is a source of “utmost psychological pain” to him.

    Legal issues

    • India does not have a law yet on right to be forgotten.
    • In the meantime, the Information Technology Rules, 2011 — which is the current regime governing digital data — does not have any provisions relating to the right to be forgotten.
    • The Personal Data Protection (PDP) Bill was tabled in Parliament in 2019 and is being examined by a Joint Parliamentary Committee (JPC).

    Key features of PDP Bill

    • Personal Data: Section 20 of the PDP Bill says that a ‘data principal’ — or the person who generates the data or to whom the information pertains — can rightfully ask a ‘data fiduciary’, which is any entity that stores or processes such data, to “restrict or prevent the continuing disclosure of his personal data” in specific circumstances.
    • Purpose of data: To seek the erasure of data, it is necessary to establish that it “has served the purpose for which it was collected or is no longer necessary for the purpose; was made with the consent of the data principal.
    • Right to be forgotten: The Bill says that the right to be forgotten can be enforced only on an order of an adjudicating officer following an application filed by the data principal.
    • Contravention with Free Speech: However, the decision on whether the right to be forgotten can be granted with respect to any data will depend on whether it contravenes “the right to freedom of speech and expression and the right to information of any other citizen”.

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  • Protest should not hinder traffic: SC

    The Supreme Court took a nuanced stand saying farmers have the right to protest but the agitation should not hinder traffic or public movement.

    Right to Protest

    • When a group, community, or even a person goes up to protest, it is usually to showcase their disapproval or demur against any action, policy, statement, etc of state or government or any organization.
    • Mostly the flow of protest is driven through political waves that also demonstrate the collective organization of people to make the government or state address their issues and take steps to overcome them.
    • In India, the right to protest is the manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.

    Constitutional Backing

    • Article 19(1) states that All citizens shall have the right:

    (a) to freedom of speech and expression;

    (b) to assemble peaceably and without arms;

    (c) to form associations or unions;

    (d) to move freely throughout the territory of India;

    (e) to reside and settle in any part of the territory of India; and

    (f) omitted

    (g) to practice any profession, or to carry on any occupation, trade or business

    Reasonable restrictions on Protest

    • Article 51A makes it a fundamental duty for every person to safeguard public property and to avoid violence during the protests and resorting to violence during public protests results in infringement of key fundamental duty of citizens.
    • Article 19(1)(b) states about the right to assemble peaceably and without arms. Thereby, the right to peaceful protest is bestowed to Indian citizens by our Constitution.
    • Article 19(2) imposes a restriction on a person to prevent him from making a defamatory statement which defames the reputation of another person.
    • Article 19(3): The reasonable restrictions are imposed in the interests of the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation, or incitement to an offense.

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  • Arrest is not always a must, says Supreme Court

    The Supreme Court has held that merely because the law allows arrest does not mean the State can use the power indiscriminately to crush personal liberty.

    What is an Arrest?

    • An arrest is a procedure in a criminal justice system.
    • It is the act of apprehending and taking a person into custody (legal protection or control), usually because the person has been suspected of or observed committing a crime.
    • After being taken into custody, the person can be questioned further and/or charged.

    Distinction between arrest and detention

    • There exists a distinction between an investigatory stop or detention and an arrest.
    • The distinction tends to be whether or not the stop is “brief and cursory” in nature, and whether or not a reasonable individual would feel free to leave.

    Article 21 of the Indian Constitution guarantees the protection of life and personal liberty to every individual and states that, “No person shall be deprived of his life and personal liberty except according to procedure established by law.”

    Logic behind arresting

    The Supreme Court has noted that:

    • The occasion to arrest an accused during investigation arises when the custodial investigation becomes necessary.
    • Or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond.
    • The court was emphatic that a distinction must be made between the existence of the power to arrest and the justification for the exercise of this power.

    Sanctions for arrest as outlined by the Supreme Court

    The Supreme Court clarified that:

    (A) Avoiding arrests

    • Arrest isn’t a compulsion: Merely because an arrest can be made because it is lawful does not mandate that arrest must be made.
    • Justification for arrest: A distinction must be made between the existence of the power to arrest and the justification for the exercise of it, it noted.
    • Dignity of the undertrial: If an arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person.
    • Evidence protection: There should not be a compulsion on the officer to arrest the accused since many times there is no apprehension that an accused would abscond or tamper with evidence.

    (B) Broad implications of Sec. 170 CrPC

    • Narrow interpretation: Section 170 of the Code of Criminal Procedure (CrPC) has been wrongly interpreted by the police and trial courts to make an arrest of the accused mandatory at the time of filing of the charge sheet.
    • Custody, not arrest: The word “custody” in Section 170 had been wrongly interpreted as ‘arrest’.The word ‘custody’ appearing in Section 170 does not contemplate either police or judicial custody.

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  • Issue of the oath of an elected representative

    Context

    Some Cabinet Ministers in Karnataka who took oath recently stood out from the rest.  All these oaths run against the spirit of the Constitution.

    Background of agnostic Constitution

    • The public officials who took office under the Government of India Act, 1935 had to take oath which had no mention of God.
    • During the Constituent Assembly debate, B.R. Ambedkar proposed the Preamble, “We, the people of India…”.
    •  H.V. Kamath moved an amendment to the Preamble, “In the name of God, we, the people of India…”.
    • To this proposal, another member, A. Thanu Pillai said that if this amendment is accepted it would affect the fundamental right of freedom of faith.
    • He said that a man has a right to believe in God or not, according to the Constitution.
    • H.N. Kunzru opposed Kamath’s amendment stating that in a matter that vitally concerns every man individually, the collective view should not be forced on anybody.
    • The amendment was defeated, thereby excluding ‘God’ from the Preamble.
    • Thus, our founding fathers gave us an agnostic Constitution.

    What are provisions in Consitution

    • The public officials who took office under the Government of India Act, 1935 had to take oath which had no mention of God.
    • However, the framers of the Indian Constitution rejected this conception of secularism.
    • Constitution gives office-holders an option to swear in God’s name if they so wished.
    • The Supreme Court of India observed in 2012 that the oath by an elected representative should be taken “in the name of God” if the person is a believer or should be “solemnly affirmed” if the person is a non-believer.
    • The Supreme Court said that the oath of an elected representative should be in strict compliance with the wordings of the Constitution. 

    Way forward

    • As the Republic belongs to all the citizenry, irrespective of whether he is a theist, atheist or agnostic, and irrespective of his caste or religion, a person occupying a constitutional post should take oath in the format of ‘“solemnly affirm”.
    • The Constitution should be amended accordingly.

    Conclusion

    If a person takes the oath in the name of a God affiliated to a particular religion or caste, the citizenry cannot expect the absence of affection or ill-will from him. The allegiance of a person holding a constitutional post should only be to the Constitution.

  • Bringing Minority Schools under RTE

    The National Commission for Protection of Child Rights (NCPCR) has recommended that Minority Schools be brought under Right to Education and Sarva Shiksha Abhiyan.

    What is the report?

    • The report is titled “Impact of Exemption under Article 15 (5) with regards to Article 21A of the Constitution of India on Education of Children in Minority Communities”.
    • It has assessed minority schools (schools run by minority organizations) in the country.

    Key recommendations of the report

    • Minority schools are exempt from implementing The Right to Education policy and do not fall under the government’s Sarva Shiksha Abhiyan.
    • Through this report, the NCPCR has recommended that these schools be brought under both RTE and SSA, amongst a host of other recommendations.

    Developments in RTE

    (1) 86th Constitutional Amendment (2002):

    • In 2002, the 86th Amendment to the Constitution provided the Right to Education as a fundamental right.
    • The same amendment inserted Article 21A, which made the RTE a fundamental right for children aged between six and 14 years.
    • The passage of the amendment was followed by the launch of the Sarva Shiksha Abhiyan (SSA) that aimed to provide “useful and relevant, elementary education’’ to all children between six and 14 years.

    (2) 93rd Constitutional Amendment (2006):

    • In 2006, the 93rd CAA inserted Clause (5) in Article 15.
    • This enabled the State to create special provisions, such as reservations for the advancement of any backward classes of citizens like SCs and STs, in all aided or unaided educational institutes, except minority educational institutes.

    (3) RTE Act (2009):

    • The government subsequently brought the Right to Education (RTE) Act, 2009, which centers around inclusive education for all, making it mandatory to include underprivileged children in schools.
    • Specifically, Section 12(1)(c) of the Act provided for a 25 percent reservation of seats in unaided schools for admission of children from economically weaker sections and disadvantaged groups.

    How are minority schools exempt from RTE and SSA?

    • Article 30 of the Constitution states the right of minorities to establish and administer educational institutions.
    • This article aims to provide opportunities to children from different religious and linguistic minority communities to have and conserve a distinct culture, script, and language.
    • Subsequently, in 2012, through an amendment, the institutions imparting religious education were exempted from following the RTE Act.
    • Later on, in 2014 (Pramati judgment), while discussing the validity of exemption under Article 15 (5), the Supreme Court declared the RTE Act inapplicable to schools with minority status.
    • This was in the view that the Act should not interfere with the right of minorities to establish and administer institutions of their choice.

    Why has the NCPCR carried out the study?

    • The Commission’s objective was to assess the impact of this exemption of minority educational institutions from various guidelines that are mandatory for non-minority institutions.
    • It opined that the different sets of rules under Article 21A, Article 30, and Article 15 (5) act as creating a conflicting picture between the fundamental rights of children and the rights of minority communities.

    What are the findings of the report?

    The Commission has observed in the report that many children who are enrolled in these institutions or schools were not able to enjoy the entitlements that other children are enjoying.

    (1) Missionaries schools are elite cocoons

    • It has been said that there have been certain detrimental effects of the exemption – on the one hand, there are schools, mostly Christian Missionary schools.
    • Such schools are admitting only a certain class of students and leaving underprivileged children out of the system, thus becoming what the Commission has called “cocoons populated by elites’’.

    (2) Minorities schools become overcrowded without facilities

    • As opposed to this, other types of minority schools, in particular madrasas, have become “ghettos of underprivileged students languishing in backwardness’’ says the Commission.
    • The Commission has said that students in madrasas that do not offer a secular course along with religious studies – such as the sciences – have fallen behind and feel a sense of alienation and “inferiority’’ when they leave school.

    What are the findings with regards to madrasas?

    There are four kinds of madrasas in India:

    1. Madrasas recognized by the government, which usually impart both religious as well as secular Courses, including the sciences has four percent Mulsim students (15.3 lakh) said the Sachar Committee report.
    2. There are 10,064 such madrasas in India and the Commission points out that these were the ones taken into consideration by the Sachar Committee when it said four percent of Mulsim students (15.3 lakh) studied in madrasas.
    3. There are unrecognized madrasas, which the government hasn’t recognized because they do not impart secular education or lack physical infrastructure, including the number and quality of teachers.
    4. Then, there are unmapped madrasas that have never applied for recognition and function in a more informal setup – there is no data on how many such madrasas exist and how many students study there.

    Why bring them under RTE?

    • The Commission believes this took place as schools wanted to operate outside the legal mandate to reserve seats for backward classes.
    • RTE provides for norms pertaining to basic minimum infrastructure, a number of teachers, books, uniforms, Mid-day Meal, etc., that benefits students in minority schools have not been receiving.

  • Honour of the National Flag

    Ahead of Independence Day, the Centre has urged all citizens not to use a national flag made up of plastic and asked states and Union Territories to ensure strict compliance with the flag code.

    Prevention of Insults to National Honour Act

    • The law, enacted on December 23, 1971, penalizes the desecration of or insult to Indian national symbols, such as the National Flag, the Constitution, the National Anthem, and the Indian map, as well as contempt of the Constitution of India.
    • Section 2 of the Act deals with insults to the Indian National Flag and the Constitution of India.

    Do you know?

    Article 51 ‘A’ contained in Part IV A i.e. Fundamental Duties asks:

    To abide by the constitution and respect its ideals and institutions, the National Flag and the National Anthem in clause (a).

    Other provisions

    • Section 3.22 of The Flag Code of India, 2002 deals with laws, practices and conventions that apply to the display of the national flag.
    • Section 3.58 says: On occasions of State/Military/Central Paramilitary Forces funerals, the flag shall be draped over the bier or coffin with the saffron towards the head of the bier or coffin.
    • The Flag shall not be lowered into the grave or burnt in the pyre.

    Try this

    Q.The national motto of India, ‘Satyameva Jayate’ inscribed below the Emblem of India is taken from:

    (a) Katha Upanishad

    (b) Chandogya Upanishad

    (c) Aitareya Upanishad

    (d) Mundaka Upanishad

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    Use of flag in funerals

    • The flag can only be used during a funeral if it is accorded the status of a state funeral.
    • Apart from police and armed forces, state funerals are held when people who are holding or have held the office of President, Vice-President, PM, Cabinet Minister, or state CM pass away.
    • The status of a state funeral can be accorded in case of death of people not belonging to the armed forces, police or the above-mentioned categories by the state government.
    • Then too, the national flag can be used.

    Disposing of the national flag

    • A/c to the Flag Code, such paper flags are not to be discarded or thrown on the ground after the event.
    • Such flags are to be disposed of, in private, consistent with the dignity of the flag.

    Back2Basics:

    Story of our National Flag

     

  • 127th Constitutional Amendment Bill

    The Government will bring the 127th Amendment Bill to Parliament to clarify “some provisions in the 102nd Constitutional amendment Bill” to restore the power of the states to identify backward classes — a demand made by a number of regional parties and even the ruling party’s own OBC leaders.

    Try answering:

    Q. Consider the following statements:

    1. An amendment to the Constitution of India can be initiated by an introduction of a bill in the Lok Sabha only.
    2. If such an amendment seeks to make changes in the federal character of the Constitution, the amendment also requires to be ratified by the legislature of all the States of India.

    Which of the statements given above is/are correct? (CSP 2013)

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2

     

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    127th Constitutional Amendment Bill

    • The Constitutional 127th Amendment Bill will amend Articles 342 A — clauses 1 and 2 — and will introduce clause 342 A (3) specifically authorizing states to maintain their State List.
    • There will be a consequential amendment in Articles 366(26C) and 338B (9). States will then be able to directly notify OBC and SEBCs without having to refer to the NCBC.
    • There has been some confusion about what comprises a state and Central list, and this clause will clarify that.

    Why need amendment?

    • The Centre had earlier moved a review petition in the Supreme Court challenging the court’s interpretation of the 102nd amendment of the Constitution in the Maratha reservation judgment.
    • The 102nd CA had scrapped the power of the states to identify and notify socially and educationally backward classes.
    • The move is politically significant as the govt is banking heavily on OBC votes in key states that go to the polls next year.

    About the 102nd CAA

    • The 102nd  CAA, 2018 has given constitutional status to the National Commission for Backward Classes (NCBC).
    • With this, NCBC gets powers to examine the grievances in the implementation of the various welfare schemes meant for OBCs.
    • The status of the Central list of OBCs has been elevated by giving constitutional status to the list.
    • It has given powers to the Parliament to make changes in the Central OBC list.

    Back2Basics: Constitutional Amendment

    • Amending the Constitution of India is the process of making changes to the nation’s fundamental law or supreme law.
    • The procedure of amendment in the constitution is laid down in Part XX (Article 368) of the Constitution of India.
    • There is a limitation imposed on the amending power of the constitution of India.
    • The most famous among them is the Basic structure doctrine as laid down by the Supreme Court in the case of Kesavananda Bharati v. State of Kerala (1973).

    Procedure

    • An amendment of the Constitution can be initiated only by the introduction of a Bill in either House of Parliament.
    • The Bill must then be passed in each House by a majority of the total membership of that House and by a special majority of not less than two-thirds of the members present and voting.
    • There is no provision for a joint sitting in case of disagreement between the two Houses.
    • If the amendment seeks to make any change in any of the provisions mentioned in the provision to article 368, it must be ratified by the Legislatures of not less than one-half of the States.
    • Although there is no prescribed time limit for ratification, it must be completed before the amending Bill is presented to the President for his assent.

    Types:

    1. Simple majority of the Parliament: Creation of new states, Delimitation of constituencies etc.
    2. Special majority of the Parliament: for Fundamental rights and DPSPs
    3. Special majority of the Parliament and the ratification of at least half of the state legislatures: Election of the President and its manner, Supreme Court and high courts etc.

  • Preventive detention a necessary evil: Supreme Court

    Preventive detention, the dreaded power of the State to restrain a person without trial, could be used only to prevent public disorder, the Supreme Court held in a judgment.

    What is Preventive Detention?

    • Preventive detention means detaining a person so that to prevent that person from commenting on any possible crime.
    • In other words, preventive detention is an action taken by the administration on the grounds of the suspicion that some wrong actions may be done by the person concerned which will be prejudicial to the state.

    PD in India

    A police officer can arrest an individual without orders from a Magistrate and without any warrant if he gets any information that such an individual can commit any offense.

    • Preventive Detention Law, 1950: According to this law any person could be arrested and detained if his freedom would endanger the security of the country, foreign relations, public interests, or otherwise necessary for the country.
    • Unlawful Activities Prevention Act (UAPA) 1968: Within the ambit of UAPA law the Indian State could declare any organization illegal and could imprison anyone for interrogation if the said organization or person critiqued/questioned Indian sovereignty territorially.

    What is the difference between preventive detention and an arrest?

    • An ‘arrest’ is done when a person is charged with a crime.
    • In the case of preventive detention, a person is detained as he/she is simply restricted from doing something that might deteriorate the law-and-order situation.
    • Article 22 of the Indian Constitution provides protection against arrest and detention in certain cases.

    Rights of an Arrested Person in India

    A/c to Article 22(1) and 22(2) of the Indian constitution:

    • A person cannot be arrested and detained without being informed why he is being arrested.
    • A person who is arrested cannot be denied to be defended by a legal practitioner of his choice. This means that the arrested person has right to hire a legal practitioner to defend himself/ herself.
    • Every person who has been arrested would be produced before the nearest magistrate within 24 hours.
    • The custody of the detained person cannot be beyond the said period by the authority of magistrate.

    Exceptions for Preventive Detention

    Article 22(3) says that the above safeguards are not available to the following:

    • If the person is at the time being an enemy alien
    • If the person is arrested under certain law made for the purpose of “Preventive Detention”

    Constitutional provision

    • It is extraordinary that the framers of the Indian Constitution, who suffered most because of the Preventive Detention Laws, did not hesitate to give Constitutional sanctity.
    • B.R. Ambedkar was of the opinion that the freedom of the individual should not supersede the interests of the state.
    • He had also stated that the independence of the country was in a state of inflancy and in order to save it, preventive detention was essential.

    Issues with preventive detention

    • Arbitrariness: The police determinations of whether a person poses a threat are not tested at a trial by leading evidence or examined by legally trained persons.
    • Rights violation: Quiet often, there is no trial (upto 3 months), no periodic review, and no legal assistance for the detained person.
    • Abuse: It does not provide any procedural protections such as to reduce detainees’ vulnerability to torture and discriminatory treatment, and to prevent officials’ misusing preventive detention for subversive activities.
    • Tool for suppression: In the absence of proper safeguards, preventive detention has been misused, particularly against the Dalits and the minorities.

    What has the apex court recently rule?

    • Preventive detention is a necessary evil only to prevent public disorder.
    • The court must ensure that the facts brought before it directly and inevitably lead to harm, danger or alarm, or feeling of insecurity among the general public or any section thereof at large.
    • The State should not arbitrarily resort to “preventive detention” to deal with all and sundry “law and order” problems, which could be dealt with by the ordinary laws of the country.
    • Whenever an order under a preventive detention law is challenged, one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation?
    • If the answer is in the affirmative, the detention order will be illegal.

    Upholding the Article 21

    • Preventive detention must fall within the four corners of Article 21 (due process of law) read with Article 22 (safeguards against arbitrary arrest and detention) and the statute in question, Justice Nariman ruled.
    • The Liberty of a citizen is a most important right won by our forefathers after long, historical, and arduous struggles.

    Conclusion

    • The constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of State’s security; public order, disruption of national economic discipline, etc.
    • They are envisaged as a necessary evil to be administered under strict constitutional restrictions.
    • India is a large country and many separatist tendencies against the national security and integrity existed and existing and a strict law is required to counter the subversive activities.
    • The number of persons detained in these acts is not a very large and due attention is made before preventive detention.
    • Having such kind of acts has a restraining influence on the anti-social and subversive elements.
    • The state should have very effective powers to deal with the acts in which the citizens involve in hostile activities, espionage, coercion, terrorism, etc.