Right to Life and Personal Liberty in Constitution
Rights to life and personal liberty are the most precious of fundamental rights. Articles 21 and 22 of the constitution of India seek to secure these rights.
Art. 21 read ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.
Thus the article expressly forbids the executive from interfering with the life and liberty of the individuals without the authority of law. This article secures for Indian citizens same rights which the British citizens derive from the famous Magna Carta. Art. 21 oblige the executive to observe the ‘forms and rules of law when depriving individuals of their rights to life or liberty. Besides Art 21 individual liberty is also protected by courts by means of writ of Habeas Corpus issued under Arts 32 and 226.
But right to liberty can nowhere be absolute. In the U. S. A., the executive may impinge upon individual liberty if it acts in accordance with ‘due process of law. In the U. S. A. the Supreme Court examines the constitutional validity of the law under which executive actions are taken. Executive actions are valid only if the law is constitutional. Thus the ‘due process restrains both the executive and the legislature. But in India executive actions in encroaching upon an individual’s liberty is to be confined only within the ‘procedure established by law. The Indian Courts do not exercise the right of judicial review over criminal laws. That was the view taken by the Indian Supreme Court in the famous case of A. K. Gopalan vs. the State of Madras. Under this view Indian Courts could restrain only arbitrary executive action but not arbitrary legislation.
This view prevailed till 1978 when in the case of Maneka vs. Union of India; the Supreme Court held that procedure for depriving individual liberty in a law must not be ‘arbitrary, unfair or unreasonable.†The position today is, the courts not only restrain arbitrary action of the executive, they also examine whether the laws providing for curtailment of liberty are ‘arbitrary, unfair or unreasonable.
Art. 22 provides safeguards against arbitrary arrest or detention. The safeguards are three:
Even arrested person must he informed of the grounds for his arrest,
he must be given the opportunity to consult lawyers of his choice and,
he must be produced before the nearest magistrate within 24 hours and his period of detention cannot be extended without magisterial order. Such safeguards however are not available to (1) an enemy alien and (2) persons detained under preventive detention.
The most contentious part of Art 22 is the provision for preventive detention. The constitution empowers the state to resort to preventive detention, i.e. to detain persons without trial and to deny their rights under Art.19, on four grounds. These are
security of a state,
maintenance of public order,
maintenance of essential services and defence,
foreign affairs and security of India.
Any person arrested under preventive detention on any of the above grounds, can have no right to liberty visualized under Art 19 or 21.
However to prevent reckless use of ‘preventive detention, the constitution prescribes some safeguards.
Firstly, a person may be taken into preventive custody only for a period of 3 months. Extension of the period of arrest beyond 3 months must be referred to an advisory board consisting of persons qualified to be appointed as judges of High Courts.
Secondly, the persons detained must be given the grounds of their arrest. The state however may refuse to disclose the entire grounds in the public interest.
Thirdly, the detainees must be given the earliest opportunity to make representation against detention.
Preventive detention, beyond any doubt makes serious encroachment on individual liberty. At the same time, in unstable societies, preventive detention may be unavoidable.
