Article 22(3): Who Loses Those Rights

It is automatic. No declaration is needed, no emergency is needed, and no order of any court is needed. The moment a person is held under such a law, clauses (1) and (2) cease to apply to him.

What is left after clause (3) operates

This is the list to give in an answer, because the examiner is testing whether the student thinks the detenu is left with nothing.

From article 22 itself: clause (4), the three month limit and the Advisory Board; clause (5), the grounds and the earliest opportunity of representation; and, as a limit on the State, clause (7), which confines what Parliament may prescribe.

From the rest of Part III: article 14, so an arbitrary order is bad; article 21, so the procedure must be right, just and fair after Maneka Gandhi v. Union of India, AIR 1978 SC 597; article 32 and article 226, so a court can be reached; and article 20 in its own terms, though it is of little use because there is no offence and no conviction.

From the statute: whatever the Act itself gives. Under the National Security Act 1980 that is section 8, grounds ordinarily within five days and in exceptional circumstances within fifteen; section 10, reference to the Advisory Board within three weeks; section 11, report within seven weeks; section 12, confirmation or release; section 13, a maximum of twelve months; and section 14, revocation.

The important structural point is this. The Constitution's own guarantee to a detenu is thin, and most of what actually protects him comes from article 21 as read after 1978 and from the statute. That is worth saying explicitly, because it explains why a book on this subject spends so much time on the statutes and on the judicial glosses in chapters 290 to 350.

Why the clause was drafted this way

Because the framers were making a trade, and it is better to state it than to deplore it.

Preventive detention was to be permitted. If clauses (1) and (2) applied to it, it could not work: a person detained to prevent future conduct cannot be produced before a magistrate for a decision on an accusation, because there is no accusation, and a right to be defended by counsel presupposes proceedings in which a defence is offered. So the ordinary safeguards were withdrawn and a different, thinner set was substituted in clauses (4) to (7).

Whether the substituted set is adequate is the question MU is asking whenever it sets the safeguards question, and the answer is in [The Safeguards Gathered, and the Safeguards Against Misuse].

A worked example

Zainab is picked up in Pune. Consider three legal bases.

A. Arrested on suspicion of an offence under the Bharatiya Nyaya Sanhita. Clauses (1) and (2) apply in full. Grounds forthwith, counsel of choice, magistrate within twenty four hours.

B. Detained under an order made under section 3(2) of the National Security Act 1980. Clause (3)(b) applies. No magistrate, no constitutional right to counsel, no right to the grounds of arrest under clause (1). She gets the grounds of detention under clause (5) and section 8, a representation, and the Advisory Board.

C. Arrested under a special criminal statute such as the Unlawful Activities (Prevention) Act 1967. Clauses (1) and (2) apply. That Act creates offences and provides for trial; it is not a preventive detention law, so clause (3)(b) has no application to it. The special features of that Act, such as the bail provision in section 43D(5), operate within a criminal process, not outside it.

Case C is the one students get wrong, and it is worth stating the rule that decides it: an Act is a preventive detention law only if it authorises detention without trial on a satisfaction about future conduct. An Act that creates offences and makes them hard to defend is a special criminal statute, and belongs to Module II.

What it does NOT mean

It does not suspend Part III for the detenu. Only clauses (1) and (2) of article 22 go.

It does not depend on an emergency. Clause (3) operates in ordinary times, which is what makes preventive detention in India unusual by comparative standards.

It does not make every foreigner an enemy alien. Sub-clause (a) is confined to the subject or citizen of a State at war with India, for the time being.

It is not a power. Clause (3) confers nothing on the State. It removes protections from the person. The power to detain comes from the statute, and behind the statute from Entry 9 of List I or Entry 3 of List III.

Quick revision

• Article 22(3): clauses (1) and (2) do not apply to an enemy alien, or to a person arrested or detained under any law providing for preventive detention.
• Effect: no grounds of arrest under clause (1), no constitutional right to counsel of choice, no production before a magistrate.
• Enemy alien: a subject or citizen of a State at war with India, for the time being. Not every foreigner.
• What survives: article 22(4), (5) and (7); articles 14, 21, 32 and 226; and whatever the statute gives.
• The test of a preventive detention law: does it authorise detention without trial on a satisfaction about future conduct? A special criminal statute is not one.

Test yourself

1. Which two clauses does article 22(3) switch off, and for whom? Clauses (1) and (2), for an enemy alien and for a person arrested or detained under any law providing for preventive detention.

2. Is every foreigner an enemy alien? No. An enemy alien is a subject or citizen of a State at war with India for the time being. A foreigner may still be detained under a preventive detention law, and section 2(d) of the National Security Act provides that "person" includes a foreigner.

3. Does the Unlawful Activities (Prevention) Act 1967 attract clause (3)(b)? No. It creates offences and provides for trial, so it is a special criminal statute and not a law providing for preventive detention.

4. Name three protections that survive clause (3). Any three of: article 22(4) and (5); article 14; article 21 as read after Maneka Gandhi; article 32; article 226; and the safeguards in the detention statute itself.

5. Does clause (3) require an emergency to operate? No. It operates in ordinary times, which is what makes Indian preventive detention unusual by comparison with most constitutions that contain a bill of rights.