Open Access Research Article
Administrative Law: A Tool Against Illegal Detention (By: Abhipsa Mohapatra & Naisargika Mishra)
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Article Details
Administrative
Law: A Tool Against Illegal Detention
Authored By: 1. Abhipsa Mohapatra
2. Naisargika Mishra
Abstract
The development of social-welfare has greatly affected
the democracy. There has been a significant increase in the role of state and
its operations. Today, the state has prime role in every aspect of human life.
The modern administration is directly connected to the people and has in some
way or the other affected the rights of the individuals. There is not a single
string in human life that is not connected with the administration. The pivotal
role of the administrative law to be specific, is to blur the inequalities and
put the state or the government and the individual in the same page. But many a
times such laws are highly misused. One of those aspects is the illegal
detention, which has been prevailing since the pre independence era. This
article aims to highlight the importance of administrative law and how it can
be regarded as a weapon to safeguard any individual for that matter from
illegal detention by invoking the writ of habeas corpus. Detailed study has
been provided about the basic difference between arrest and detention, how
arrest is made and who can do so, the vitality of the writ of habeas corpus is
explained with the help of important case laws which has further clarifies the
applicability of the writ and this is followed by a critical analysis of the
uncodified administrative law with its role to avert illegal detention along
with interpretation of the Preventive Detention Act, followed by conclusion.
KEYWORDS-
ILLEGAL, DETENTION, ADMINISTRATION, CONSTITUTION, RIGHTS, WRIT, COURT, LAW,
ARREST.
Introduction
“Injustice anywhere is a threat to justice everywhere”
Martin Luther King.
If the society in which we live is a bowl of milk,
then any kind Injustice to anybody is like a drop of poison that makes the
entire bowl toxic. A single act of Injustice to anybody can create a sense of
insecurity and helplessness among all others. The citizens become suspicious
upon the functioning of the government and further lose trust on the
administration. To avoid such worse, conflicting and unstable situation
administrative law ensures that no man is beneath or above law. Administrative
law keeps the governmental actions within the periphery of law delimiting the
checks, balances and licit area of exercising power, authority and jurisdiction
of the administrative bodies to avoid arbitrary, unjust, flawed and partial
governance of the state. Hence the concept of writ was introduced in Common Law
for keeping a judicial eye on the work of administration. Writ jurisdictions
are judicial reviews of the administrative actions. Judiciary always stands to
ensure all administrative actions in conformity with the law of the land. Thus,
the writ jurisdictions act as judicial restraints of policy decisions which are
opaque, unjust, unreasonable, unfair and against public interest. A writ is a
written official order issued by the court, the formal order of which may be in
form of warrant, direction, command, order etc. Writs can be issued by the High
Court Under Article 226 of the Constitution of India,1950 and by the Supreme
Court under Article 32 of the Constitution of India,1950. Indian constitution
has adopted the concept of prerogative writs from English common law. Writs
were first used to describe a written command of the King. Whereas, these writs
are now available to a person aggrieved by the decision of the inferior courts
or administrative bodies.
One of the most menacing practice in
democracy is that those who are meant to enforce and execute the law take the
law into their own hands. Several citizens usually, the poor and those who
belong to the weaker sections of the society are victims of custodial violation
in India. Custodial Violation further includes unlawful detention, illegal
arrests, custodial deaths, and torture. According to The Hindustan Times
report, “1000 unlawful detention cases happen in India every year and UP and
Delhi are at the lead”. Illegal detention is the arbitrary and unjustifiable
imprisonment or the unlawful deprivation of liberty by the way of “arrest” for
a wrongful cause or suspicion. It is a continued restriction of the freedom of
an individual. The worst aspect of
illegal detention is that it shakes the very foundation of the rule of law in a
democracy and smashes the faith of the citizens on the administration and
criminal justice system.
Arrest,
Detention And Illegal Detention
All human
beings have the right to enjoy the respect for their liberty and security. It
is axiomatic that, without an efficient guarantee of the liberty and security
of humans, the protection of other individual rights become increasingly
vulnerable and often illusory. In the course of such arbitrary and unlawful
deprivations of liberty, the detainees are also frequently deprived of access
both to lawyers and to their own families, and also subjected to torture and
other forms of ill-treatment.[1]
An arrest
requires taking someone into custody, against that person’s will, in order to
prosecute or interrogate. It involves a physical application of force, or
submission to an officer’s ‘show off’ force. In a nutshell, the arrestee must
not be free to leave but the fact that this act by the police,
termed as arrest under state law is not
relevant.[2] Detention
is a way of detaining someone for short period of time on the pretext of
certain reasons. But arrest and detention differ at the point that whether the
particular person is charged with a crime or not. When a person is detained he
is not accused of committing any crime but is retained in the police custody on
a justifiable surmise. After some kind of investigation, the person detained is
released. The process of arrest is entirely different. A person can only be
arrested if he is charged with any kind of crime. Illegal detention is the
groundless restraint or unjustifiable imprisonment leading to loss of an
individual’s right by arresting him/her for an illicit or absurd reason.
Who
Can Arrest And How Is Arrest Made
An arrest may not only be done by a police officer or magistrate
but also by a private person provided it has to be made in accordance with some
legal provisions permitting such arrest. A private individual may arrest a person
only when the person is a proclaimed offender and if the person commits a
cognizable offence or non-bailable offence in front of his eyes as per section
43 of The Code of Criminal Procedure (CRPC) but an executive or judicial
magistrate may arrest a person without a warrant as per section 44 of the Code
of Criminal Procedure (CRPC). Further Section 41 clarifies that arrest can be
done without warrant in case of cognizable offence and in case of a non-
cognizable offence the Police officer has to have a warrant.
Habeas Corpus: A
Remedy Against Illegal Detention
The word ‘Habeas Corpus’ is derived from the latin
phrase ‘Habeas Corpus Subi Bi Cendum’ which translates as ‘Produce the body’.[3] It is one
of the five writs that the Supreme Court is empowered to issue under article 32
of the constitution. It is issued when the court gets to know that an
individual has become the prey of unlawful detention. Further the Supreme Court
has the power to command for the production of the aggrieved individual before
the court immediately. Therefore, the writ of Habeas Corpus is in close
proximity with personal liberty. The Supreme Court has connoted this writ as a
special one: To protect individual liberty, the Judges owe a duty to safeguard
the liberty not only of the citizens but also of all persons within the
territory of India. The most effective way of doing the same is by way of
exercise of power by the Court by issuing a writ of habeas corpus. This facet
of the writ of habeas corpus makes it a writ of the highest constitutional
importance being a remedy available to the lowliest citizen against the most
powerful authority.[4] The writ
of habeas corpus is like a colour to the rainbow of right of personal liberty
which is entrusted under the Indian Constitution with reference to article 21.
Without this remedy the personal liberty is like a ship without destination.
The vitality of habeas corpus lies in the fact that it is an inextensible part
of administrative law which not only is a tool against unjustifiable detentions
but also is symbolic to the dignity, integrity and liberty of the citizens.
Starting from the case of AK Gopalan v. State of Madras[5]
in 1950 to the most recent case of S. ‘
Shivkumar v. State of Karnataka in 2021, the
dimensions of habeas Corpus in Administrative law is worth understanding.
The proceeding of this writ not only evolves around the fact of
detention but also the constitutionality of law. In the case of AK Gopalan v.
State of Madras[6] a question
on the expression ‘personal Liberty’ was raised. Here the court had held that
the preventive detention act 1950 was intra vires to the constitution of India
and also article 21 comes under the preview of preventive detention. The case of Maneka Gandhi v. Union of India[7] also
highlighted the concept of personal liberty. In this case the Supreme court of
India played a vital role to explain the constitutionality of preventive
detention and electrified the whole concept of liberty by elucidating two major
outcomes that has long running impact of constitutional decisions.
I.
The
court gave a wider meaning to the term ‘Personal liberty’
II.
The
court empowered the element of fairness and justness to the ‘procedures
established by law’ in order to protect a person being deprived of his personal
liberty.[8]
The 44th amendment act 1978 prevented the
suspension of article 21 during emergency situations prevailing in the country
under article 359 (1). So, the courts before the existence of 44th
amendment Act had no role play to question the legitimacy of any detention
during the prevalence of emergency despite the detention being ultra vires and
mala fide in nature. But after the 44th
amendment Act coming into picture in 1978, the writ of Habeas Corpus works as a
shield against any wrongful detention during proclaimed emergency under article
352. Therefore the constitutional amendment of 1978 revokes the Habeas Corpus
case, ADM Jabalpur v. Shivkant Shukla[9]
which remains as a black sheep in the acclaimed treasure of the Indian
Judiciary.
The Habeas Corpus is one of the
exceptional remedies provided by the Indian Constitution to its citizens
however, the gravity of it can only be perceived if it is consequential rather
than illusionary so timely adjudication is vital. But the Habeas Corpus
petition is maintainable only when the dimension of illegal detention of the
detainee is proved. Many cases in the past have had stressed the significance
of habeas corpus to protect someone from the arbitrariness of law and help them
meet the true essence of natural justice. As the Latin term ‘Ubi Jus Ibi
Remedium’ rightly states, where there is a right there is a remedy, so when a
person is illegally detained his right to life under article 21 of the constitution
is infringed. Therefore, he is very well entitled to get compensation. In the
case of Bhim Singh v. State of Jammu and Kashmir[10],
the court observed that when a person is detained illegally, he is not only
entitled to be released but also is authorised to get compensation for the
same. The legal system of India is based on the foundation ‘Innocent till
proven guilty’. Though the writ of Habeas Corpus enables a person to be
presented before the court immediately but it is silent regarding the protection
of the detainee during the time of his detention. An unlawful arrest or
detention is in violation of article 21 which states, ‘no human shall be denied
of his right to life and personal liberty except if established by law’11.
This means the process involved must be fair, true and not shadowed by any
arbitrary or oppressive actions.
Therefore, there are numerous rights of an arrested person under the
laws of the constitution which at any cost has to be obeyed by the
administration.
The Court in Yoginder Singh v/s State of
Punjab[11] observed
that for the execution of Article- 21 as well as Article- 22(1) it is
imperative that The arrested person has the right to inform his friend,
relative or any other person of his interest about the arrest made. It is the
duty of the police official to inform the arrested person all about his rights
after detainment/ arrest made. The entry of the arrest with proper details must
be made added in the diary which must necessarily include the name of the
person who has been informed about the arrest rightfully. Even in the case of
Joginder Kumar v. State of UP[12], the
court stated the rights of an arrested person which includes having a member of
his family informed about his whereabouts i.e. the place and reason of detention
or arrest.
In India where
rule of law is inherent in each and every action and right to life and liberty
is prized fundamental right adorning highest place amongst all important
fundamental rights, instances of torture and using third degree methods upon
suspects during illegal detention and police remand casts a slur on the very
system of administration.[13] Human
rights become a benchwarmer in this alarming plot. Torture in today's time is
shockingly considered as an inextensible part of the investigation process. The
investigators have developed a wrong notion that if the pressure of torture is
more then the person detained will confess. It is sad to say that custodial
torture is more dangerous and grievous than terrorism because behind it is the people
responsible for our safety who as a result make a joke of their authority by
over exercising their power. It is evident from the case of DK Basu v. State of
West Bengal[14] that
‘custodial torture’ is another dimension of illegal detention. This case was a
landmark judgment given by the court while considering the rampant issue of
custodial death and violence in the country. The Supreme Court in this case,
took significant account pertaining to custodial violence and death. It took a
step forward to check and balance the arbitrary misuse of power as a result of
which the lucidity and accountability of the administration can be
maintained.
Critical Analysis Of The Administrative Law As A Weapon To Combat Illegal Detention
“You
assist an administration most effectively by obeying its orders and decree. An
evil administration never deserves such allegiance. Allegiance to it means
partaking of the evil. A good man will therefore resist an evil system or
administration with his whole soul”
-Mahatma Gandhi
A
democracy will be no better than a mere facade if the rights of the people are
infringed with impunity without proper redressed mechanism.[15]
This makes the administrative law an integral aspect of the Indian society
which prevails on the objective of its polity with an aim to build up a
Socialist mosaic of Society. The society is dynamic in nature and
administrative law is nothing but the by-product of the evolving socio economic
functionalities of the state. It has proved itself to be an integral part in
the development process of the society and as a result of which the bitter
sweet relationship between the administrative authorities and the people has
become intricate.
Therefore, to keep a check on this ever-changing
correspondence, some binding laws are obligatory which can not only bring
certainty and regularity but will also act as a check and balance to the misuse
of powers vested in the administrative authorities.
Under Entry 9 of the ‘Union List’, The
Parliament has the exclusive power to enact a law for preventive detention in
the aspect of defence, foreign affairs, or security of India. Whereas, under
Entry 3 of the ‘Concurrent List’, both State Legislature and the Parliament
have the power to enact such laws with respect to maintenance of public order,
supplies or services inevitable for the community. Recently the Supreme Court
in one of its judgement ruled that Preventive detention order can only be
invoked if the detainee is likely or about to trigger the public order. The extent
of public order must certainly involve the public at large. The state has no
right to arbitrarily adduce preventive detention on the pretext of an act
assumed to be against the ‘public order’, which can merely be dealt by ordinary
laws of the country and this irrational use of authority to detain people
connotes illegal detention.
The object of Preventive Detention is not to Punish
but to intercept, to prevent the detainee from doing something prejudicial to
the State. The satisfaction of the concerned authority is a subjective
satisfaction in such a manner. [16]
Preventive detention laws are designed to be highly administratively steered
and restrict the scope of judicial interference. This, at times, places
unfettered and largely unchecked powers in the hands of the executive without
any liability, allowing the potential of grave misuse of such powers. The delay
it usually takes to apply for, let alone get judicial relief, works to the
advantage of the executive. Even in cases where such laws are found to have
been misused, the ultimate purpose of keeping the person behind bars for a long
period is ultimately served.[17]Though
preventive detention act is a tool for detaining the individuals and curtailing
their right to liberty not by the reason of conviction or being under trial for
an offence, but in the apprehension of them for likely committing an offence
prejudicial to law, it is over exercised by the administrative authorities,
bureaucrats, politicians and wealthy influential people to hide their wrong
doings or the loopholes of the government.
Hence, the law of administration and the writ of Habeas Corpus has
always been a wall in between executives and injustice but the practice of
‘justice delayed’ has always been an obstruction to the clarity of it. The
excruciatingly long time taken by our legal system to dispose of such
proceedings, combined with the non-availability of any redress mechanism other
than the filing of writ petitions for quashing of preventive detention orders
ensures the continuous victimisation of the detainee. Thus, the ultimate
purpose of political or personal victimisation of the detainee is served.[18] In one of
the recent cases of illegal detention, Dr. Kafeel Khan under NSA for protesting against the CAA was
kept in jail for three days and then the detention order was submitted to him
even after getting a bail. The court proceedings took seven months until when
his family referred to the supreme Court.[19]
This is a burning example of the loopholes of our justice delivery system.
Conclusion
It is ironical that the makers of our constitution,
who once were the victims of the illegal preventive detention have incorporated
the same laws in the constitution without much improvisation. Illegal
preventive detention is a direct insult to the appreciated standards of
personal liberty, integrity and most importantly, to freedom of expression.
This attempt to edge the government in order to confine the celebrated rights
of its citizens. Even though the motive of the law of ‘preventive detention’ is
to prevent the atrocities but the person being detained with the presumption of
being the reason of such crime is also a citizen of the country and safeguard
of his rights is as important as curbing any mishap happening in the society. Hence,
the exercise of the preventive detention laws must be within the boundaries of
certain unavoidable restrictions beyond which the definition of the law alters
to illegal detention. The detainee should be properly put before the conduct of
advisory board which is expected to be judicial in nature consisting of sitting
judges of the High court. Therefore, it can be assumed that in order to decide
the reasonableness of a particular detention there has been solicitation of
judicially acclaimed minds.
“You never
change things by fighting the existing reality. To change something, build a
new model that makes the existing model obsolete”
-Richard Buckminster Fuller
Change is
evident to make the present laws reconcilable with the constitutional spirit
and it is the duty of the parliament to keep a watch on the amendments made to
protect the citizen and be a part of the free society.
Article Information
Administrative Law: A Tool Against Illegal Detention (By: Abhipsa Mohapatra & Naisargika Mishra)
Authors: Abhipsa Mohapatra, Naisargika Mishra
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/08/06
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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