Detenu has a right under Article 22(5) of the Constitution of India to be afforded opportunity to make representation

Introduction

Article 22(5) stands as a sentinel guarding individual liberty against unwarranted detention. It is a provision that underscores the principles of fairness, transparency, and accountability in matters of preventive detention. Let us dissect its essence and implications.

Understanding Article 22(5)

1. The Context: Preventive Detention

   • Preventive detention refers to the act of detaining an individual without trial or conviction, ostensibly to prevent them from committing certain acts prejudicial to public order, security, or the state.
   • It is a departure from the usual criminal justice system, where guilt is established through a fair trial.

2. The Constitutional Mandate

   • Article 22(5) is part of the Fundamental Rights enshrined in the Constitution.
   • It specifically addresses the rights of a person detained under preventive detention laws.

3. The Substance of Article 22(5)

   • The provision states:

     “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.”

   • Let’s break down its key components:
     • Communication of Grounds: The detaining authority must promptly inform the detainee of the reasons behind the detention.
     • Right to Representation: The detained person has the right to present their case and challenge the detention order.

4. The Significance of Timeliness

   • The phrase “earliest opportunity” emphasizes urgency.
   • The detained person should not languish in ignorance; they must be informed promptly.
   • This ensures that the individual can effectively exercise their right to representation.

5. Adequate Particulars of Grounds

   • The Constitution does not merely require vague allegations; it demands “adequate particulars.”
   • The detainee must know precisely why they are being held.
   • This prevents arbitrary detention and allows for meaningful representation.

6. Judicial Interpretation

   • The Supreme Court of India has consistently upheld the importance of Article 22(5).
   • In Prabhu Dayal Deorah vs. District Magistrate, Kamrup (AIR 1974 SC 183), the Court emphasized that the right to representation includes the right to know the specifics of the allegations.
   • The Court held that the grounds must be sufficiently detailed to enable the detainee to prepare a meaningful defense.

Implications and Challenges

1. Balancing Security and Liberty

   • Preventive detention serves legitimate state interests, but it must not trample upon individual rights.
   • Striking the right balance is crucial.

2. Administrative Compliance

   • Detaining authorities must diligently follow the constitutional mandate.
   • Failure to communicate grounds promptly or provide adequate particulars undermines the very purpose of Article 22(5).

3. Access to Legal Assistance

   • The right to representation extends beyond mere communication of grounds.
   • Detainees should have access to legal counsel to present their case effectively.

Conclusion

Article 22(5) embodies the spirit of justice and fairness. It ensures that preventive detention does not become a tool for oppression. By guaranteeing timely communication of grounds and the right to representation, it safeguards individual dignity and upholds the rule of law.

In a democratic society, where liberty is cherished, Article 22(5) stands as a beacon—a reminder that even in the face of security concerns, fundamental rights must prevail.