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Fundamental Right under the Constitution Part -4 - Articles 22 to 24

Article 22. Protection against arrest and detention in certain cases

(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply —

(a) to any person who for the time being is an enemy alien; or

(b) to any person who is arrested or detained under any law providing for preventive detention.

*(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months 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 expiration of the said period of three months that there is in its opinion sufficient cause for such detention:

Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or

(b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.

(7) Parliament may by law prescribe—

* (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);

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

***(c) ****[the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).]

Analysis of Article 22

Article 21 gives right to life and liberty. Article 22 is contradictory to this guarantee. The original object of this Article was probabl to protect against arrest etc., but it has been interpreted to reduce the freedoms available to the people.

In A.K. Gopalan Vs State of Madras, 1950 the Supreme Court has said that every Article of the Constitution is independent of others. In this case the petitioner had challenges his arrest under Article 19 and 21, but the Court rejected all his arguments on the basis that he was taken into custody by following the procedure established by law. Therefore it can be said that according to the interpretation of Supreme Court, Article 22 is a complete code in itself, i.e its is not in accordance with fundamental rights provided by other Articles of the Constitution, and it cannot be examined by reading it with othet Articles.

In D.K. Basu Vs State of West Bengal, 1996, the Court while interpresting the rights of an arrested person under Article 22issued 11 guidelines. Section 50A was inserted in Cr.P.C based on these which has presvibed the procedure at the time of arrest.

Important Case Law about Article 22

1. Giving information about the basis of arrest is necessary under Article 21(1). A person shall not be arrested merely because there is a provision for arrest in the law, but there should be reasonable and adequate reasons for arrest. The Court has held in Joginder Kumar Vs. State of Uttar Pradesh, 1994, that not only does the person arrested has the right to know about the reasons for arrest, but he also has the right that a third person should know about the location where he has been kept in custody.
2. The right of defence by advocate of his choice is also included in Article 22. In Husainara Khatun Vs Home Secretary State of Bihar, 1979, the Court found that large number of persons in custody are awaiting trial. They were arrested on minor allegations and their freedom was taken away, which is improper. The Supreme Court expressed worry about it and said that right to expeditious trial is a constitutional right. The Court also said that trial of persons arrested on minor allegations should be completed within 6 months. The Court held that right to free leagl aid is a fundamental right.
3. In A.S. Mohammad Rafi Vs. State of Tamil Nadu, 2010, the Court held that decision by Bar Council not to defend an accused person is violation of Article 22 of the Constitution.
4. A person has to be produced before a Magistrate within 24 hours of arrest.

Exceptions to the protection given under Article 22 - These are given in clauses 3,6 and 7 of Article 22.

Exceptions under Article 22 (3) - These exceptions are with respect to enemy aliens and with respect to any law providing for preventive detention.

The provisions about preventive detention are given below -

1. Terrorist and Disruptive Activities Act, 1987 or TADA - This was an anti-terrorist law. Under this law any person chould be kept in cusotdy for upto 1 year without formal trial. The prisoner could be kept in custody for 60 days without being produced before a Magistrate. Instead of being produced before a Judicial Magistrate he could be produced before an Excecutive Magistrate who was not responsible to the High Court. This Act was grossly misused which had an adverse effect on democracy and therefore it was repealed.
2. National Security Act, 1980 - This Act empowers the authorities to take a person in custody if they believe that he is a damger to National Security. They can also take a foreigners into custody and regulate his presnece in the Country. Under this Act, a person can be kept in cusotdy for 12 months without being charged. The prisoner does not have the right to even know about the reasons for arrest. The allegations of misuse of this Act by the Police have been made frequently.
3. Prevention of Terrorist Activities Act (POTA), 2002 - This Act was made in place of TADA. Some provisions for violation of human rights were made in this Act but other provisions were similar to TADA. This law was also misused and was repealed after just two years.
4. Unlawful Activities Prevention Act, 1967 (UAPA) - This Act is infamous for strict implementation. Chief Justice of India Justice Chndrachoodh has emphasised that criminal laws including UAPA shold not be used to repress dissent or for torture of citizens. Section 15 of UAPA does not give a clear definition of terrorism. Section 43(d)(5) of UAPA stops grant of bail to the accused. Bail becomes almost impossible if a person is accused under UAPA.

Senior journalist Nilanjan Mukhopadhyay is discussing UAPA and may issued related to it, on YouTube channel NewsClickin. The video is available under Creative Commons Attribution license (reuse allowed).

Protections under Article 22, in cases of arrest under Preventive Detention

1. Scrutiny by an Advisory Board consitutted by perosn having the qualifications of a Hifgh Court jusdge within 3 months.
2. The provision of informing the person taken in cusotdy about the reaosns for arrest as soon as may be. Though it is not necessary to inform the reaosns of arrest before the arrest. The probelm is that there is no method of scruity whether the reaons are reasonable or not before the case is presented before the Avisory Board.
3. There is 3 months time to present the case to the Advisory Board.

Exceptions under Article 22(6) - It is not necessary to disclose those facts which the authority considers not to be in public interest. Since there is no way to measue waht is in public interest, this provision give unlimited powers to authorities.

Exceptions under Article 22(7 - These exceptions not only empower the Parliament to make such laws which permit incarceration for 3 months without abtaining the opinion of the Advisory Board, they also empower it to make laws to fix the maximum duration for such incarceration. This provides arbitrary powers to the executive government.

It is clear from above that there is an absence of checks and balances in proventive detention laws. These laws are not in accordance with International Human Rights policies. The main worry is that they provide unlimited powers to the authorities which can be misused.

Article 23. Prohibition of traffic in human beings and forced labour

(1) Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

(2) Nothing in this article shall prevent the State from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.

No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.

The rights in Articles 23 and 24 are rights against exploitation guranteed by the Constitution which protect from human trafficing, forced labor etc.

Cild labor has been a worry in India for a very long time. This has reduces due to the efforts of Government of India. While the number of children in work force in the 2001 census was 1.2 Crores, it reduced to 43.5 lakh in 2011 census. The first law on child labor in India is Cild labor (prohibition and regulation) Act 1986. Supreme Court has said in MC Mehta Vs. State of Tamil Nadu, 1996 that child labor should be delat with as a National issue.

Article 24 shoud be read with Article 21A and Article39. Article 21A provides for free and compulsory education for children upto theh age of 14 years. It is clear that according to this Article children are supposed to study and not work. Article 39 directs the State to make polices for welfare and protection of citizens and provide adequate sources of livelihoods. This is an important provision which helps in implemention of Article 24.

Important Case Law about Articles 23 and 24

1. Peoples Union for Democratic Rights v. Union of India, AIR 1982 SC 1943. In this caes the Supremen Court has interpreted the extent of Article 23 and has said that teh word force in this Article means not only physical force but also legal force and other economic reasons, which compel a person to work on less than the minimum wage. If a person is compeleld to work for less than minimum wage due to poverty or deprivation or hunger, it shall be considered to be forced labor. The Court also said that it does not matter whether a person is remunerated, if he is forced to work against his wish.
2. In Sanjjit Roy Vs State of Rajasthan, AIR 1983 SC 328 the State had appointed large number of labor to construct roads in order to deal with the state of draught in the State. The Court held that Rajasthan draught relief works employees(excpetion from labor laws) Act, 1964, is anti constitutional because of not following the minimum wages Act. Minimum wages should be paid to all persons appointed by the State for draught relief.
3. In deena Vs Union of India, AIR 1983 SC 1155, it was held that if a prisoner is compelled to work without wages, then it is forced labor and is a violation of Article23. Even prisoners are entitles to ger fair wage for their labor undet the Indian Constitution.
4. In Bonded Labor Mukti Morcha Vs Union of India AIR 1984 SC 802 the Bonded Labor Mukti Morcha had sent a letter to justice Bhagwati and teh Court converted it to a Petition. In this letter it was said on the basis of a survey about some stone querries in Faridabad that labor in large number were forced to work under inhuman conditions. The Court gave guidelines for identification of bonded labor and also provided that the State should identify, free and rehabilitate bonded labor. It was held that bonded labor is deprived from freedom and becomes a slave and his freedom of employment is fully taken away.
5. In Kahsen Tangkhu Vs Simtari Shelly AIR 1961 a tradition of Manipur was considered by the Court in which head of every household had to work for free for the headman of the village or Khulappa. The Court held this tradition to be a violation of Article 23.
6. In People Union for Democratic Rights Vs Union of India AIR 1983 Sc 1473, the peitioner told the Court that children less than 14 years were emploed in many ASIAD projects. The argument given was that this emplyment is not listed as hazardous in the Children employment Act, 1938. The Court held that construction was a hazardous industry therefore children less than 14 years should not be employed in it. The Court also suggested that the State should amend the scheudle and add construction industry in the list of hazardous industires.
7. In M.C. Mehta Vs State of Tamil Nadu AIR 1997 SC 699 the petitioner told the Court that mnay children were employed in manufacture of fire crackers and matches in Shivakasi. The Court held it to be a hazardous industry and directed that children less than 14 years of age should not be employed in it. The Court also directed a compensation of Rs 20000 be given to those who had been employed.

Government of India has taken several steps to abolisg child labor which has resulted in its reduction. It is important to understand that abolishing child labor is difficult without poverty allevialtion. This video on YouTuve channel VideoVolunteers under Creative Commons Attribution license (reuse allowed) throws light on the reasons of child labor in India.

Supreme Court has also said in various judgements that pocvery is the biggest cause of Child Labor. The problem of child labor cannot be taken care of only be legal measures. Poverty alleviation, Education, Health and Empowerment are necessary ingredients of policies to end child labor.