Comparative study of procedural guarantees against deprivation of liberty in the US and India

DUE PROCESS OF LAW: A COMPARATIVE STUDY OF
PROCEDURAL GUARANTEES AGAINST DEPRIVATION

OF PFRSONAL LIBERTY IN THE UNITED STATES AND
INDIA.
K. K. NlGAM *
Freedom from governmental restraint has been the cherished desire
of many political systems of the world. Different ways of achieving
this objective have been adopted in different countries, but the problem
everywhere is essentially the same. Under the American Constitution,
for instance, safeguards for individual liberty are provided bythe 'Due
process clause ' and other provisions of the Bill of Rights. Under the
Indian Constitution however, its founders, without being dogmatic
about any particular formula or phraseology, have achieved the same
objective in a different way.
Due process of law under the American Constitution
The 5th Amendment a of the Constitution of the U.S.A. pro-
vides : " . . . nor [shall any person] be deprived of life, liberty, or pro-
perty, without due process of law . . . " In Barron v. Baltimore2 the
U.S. Supreme Court held that the 5th Amendment is a limitation only
on the federal government and not on the state governments. After
the Civil War, the 14th Amendment 3 was added to the Constitution
which provided due process limitation on state authority in these
words: " . . . nor shall any state deprive any person of life, liberty
or property without due process of law . . . "
Historically, the descent of the expression s due process of law *
is traced to the expression * per legen terrae % meaning, law of the land,
used in the Magna Carta of England, 1215, chapter 39, which pro-
mised that " no freeman shall be arrested or imprisoned or disseized,
or/outlawed or exiled or in any way molested ; nor will we proceed
* Lecturer in Law, University of Delhi, Delhi; The author gratefully acknow-

ledges the kind assistance of Dean Frank C. Newman, of the University of California
School of Law, Berkeley, Professor Albert A. Ehrenzweig, Walter Perry Johnson
Professor in Law, and Professor Ira H. Heyman, [Associate Professor in Law]
of the University of California School of Law, Berkeley.
1. Adopted in the year 1791.
2. 7 Pet. 243, 8 L. Ed. 672 (1833).
3. Adopted in the year 1868.
www.ili.ac.in The Indian Law Institute

100 DUE PROCESS OF LAW
against him, unless by the lawful judgment of his peers or by the law
of the land ". The expression ' d u e process of law ', however, defies
all attempts of precise definition. In the words of the U.S. Supreme
Court " few phrases of the law are so elusive of exact apprehension as
this." 4 As observed by the Court elsewhere in a case 5 :
" . . . ' due process *, unlike some legal rules, is not a techni-
cal conception with a fixed content unrelated to time place and
circumstances. Expressing as it does in its ultimate analysis respect
enforced by law for that feeling of just treatment which has
been- evolved through centuries of Anglo-American constitutional
history and civilization, ' due process' cannot be imprisoned
within the treacherous limits of any formula. . . . *' 6
The * due process of law ', whatever its exact meaning may be,
was in the beginning interpreted as a restriction upon procedure,
particularly the judicial procedure, by which the government exercised
its powers. Principally, it related to the procedure by which persons
were tried for crimes and guaranteed to accused persons the right to
have a fair trial in compliance with well-established.principles of criminal
procedure. The same principles applied to the proceedings by which
property rights were adjudicated. Gradually, however, the Supreme
Court began to apply due process clause for the protection of sub-
stantive rights of life, liberty and property. 7 Thus, the due process,
as the term implies, was originally a procedural concept, but it develop-
ed in the hands of the Supreme Court a substantive guise under
which it served as a constitutional limitation not merely on legislative
or executive procedure, but on legislative or executive power to act
at all. 8 The present trend in the Supreme Court again is to give
emphasis mainly to the procedural aspects of the due process.9
To sum up, the due process means both procedural as well as
substantive limitation, though the former is more important and has
been often relied on by the U.S. Supreme Court as a limitation
on the exercise of governmental power, federal as well as state. Further
4. Twinning v. New Jersey, 211 U.S. 78 (1908).
5. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951).
6. Mr. Justice Frankfurter, at pp. 162-63.
7. After some initial hesitation, the U.S. Supreme Court applied the substantiv
due process doctrine for the first time in the year 1897 *and declared a State staUu
invalid in Aliegeyer v. Louisiana, 165 U.S. 578,17 S. Gt. 427 (1897).
8. C. Herman Pritchett, The American Constitution, (1959) pp. 554 f.
9. See Carl B. Swisher, The Growth of Constitutional Power in the United States, at
p . 107 ; See also 1 Indian Law Review pp. 16-33, (1950).

K. K. NIGAM 101
due process requirement is a limitation on both executive and legis-

lative power of the governments. 10
Due process and the framing of the Indian Constitution
In India at the time of the framing of its new Constitution it was
advocated that a ' due process ' clause, similar to that found in the
American Constitution, be implanted in the Indian Constitution.
To a nation which had achieved independence from a foreign
domination of more than two hundred years such an idea was fasci-
nating ; it was so because of Indian people's inherent desire or love
for democratic traditions, a philosophy which finds its origin in ancient
Indian thinking 12 of thousand years ago but which remained dormant
during the periods India remained under the yoke of foreign rule.
In the Constituent Assembly its Advisory Committee on Funda-
mental Rights recommended the following in Clause 9 :
10. See Murray v. Hoboken Land & Improvement Co., 18 How. 272, 15 L. Ed. 273
(1856), where the Supreme Court of the United States said that Congress cannot
make any process 'due process of law' by its mere will.
11. See 7 Indian Constituent Assembly Debates p. 854.
12. Dr. Berolzheimer, while writing on the origins of oriental civilizations, says
that "closely connected with the religious and philosophic views of the Vedic Aryans
are certain fundamental positions in regard to the philosophy of law which in turn
became the antecedents of later legal and ethical developments among the Greeks and
Romans." {Modern Legal Philosophy Series Vol. II page 37 ; See also, Radha Binod
Pal, The Hindu Philosophy of Law at page 1.) (According to Dr. Berolzheimer the con-
cept of Pax (meaning not peace, but that which brings peace, the blissful sacred
order), the immortal contribution of Augustine to medieval philosophy, was derived
from the Vedic ' Rita ' Dr. Berolzheimer further says, "To the Vedic Aryans, the
central philosophic conception of organised nature was 'Rita', which included the
natural and human order. A closely related conception was 'Dham' (which is
the realized cosmos corresponding to 'Rita' as a conception). The Greeks by emphasis-
ing the creative energy made of 'Rita*, and of *Dham\ The Romans through the
Greeks derived from 'Rita' their central conception 'ratum', 'ratio', 'naiuralis ratio*
and Augustine christianized 'Rita* into 'Pax'." (Ibid., at pp. 96-97.)
It is a curious historical fact that the same civilization of the East which once
contributed to the development of legal philosophy of some of the ancient civilizations
of the West, the same people who, as Miraglia says, "had always a true conception of
law and political life" (see generally, Miraglia, Comparative Legal Philosophy, pp.
119-24) felt a gap in their own legal philosophy and had to look to the West to pro-
vide legal concepts which could fulfill the aspirations of their people in this modern age.
It is customary to say that there were no democracies known in ancient
societies. True it is that the form of polity in ancient civilizations was mostly the
kingship, but before all ancient polities be branded as despotic monarchies, the true
nature of kingship in those societies should be clearly understood. In ancient India,

" No person shall be deprived of his life, or liberty without due

process of law." 13
The Drafting Committee, however, substituted the words ' except
according to procedure established by law * for the words ' without due
process of law \ The only reason given by the Drafting Committee
for this change was that the phrase ' due process of law ' is not specific
and the phrase ' according to procedure established by law' is more
specific. Article 21 (originally Clause 9), as it was finally adopted,
runs as below :
" No person shall be deprived of his life or personal liberty except
according to procedure established by law." 14
for example, there are instances of the kings being elected by the people. Megastha-
nese and Panini give account of several Hindu Republics of 500 B.C. (For the con-
stitutional position of king in ancient India see Indian Law Quarterly Review Vol. I l l
Pt. 10 pp. 531-39(1958).
Regarding the administration of justice in ancient societies it is usual to regard
its association with kingship. Sir Henry ^taine finds in it the whole historical foun-
dation of law. This view, supported as may be by the authorities of Bible and
Homer, labours under a serious defect in not allowing for difference in the types of
civilization and social organisation. (See Dr. N.G. Sen Gupta, Sources of Law and
Society in Ancient India, 1914, at p. 22) "Kingship is primarily an institution represen-
tative of the military principle" (Ihering, Geist der RomishenRechts, 6th ed., I.,
p . 178), but this obtains in different degrees of ascendency in different primitive socie-
ties. "Among Aryan people", for instance, says Miraglia, "there has never arisen
that all-controlling despotism which blots out man, as in Egypt, Babylon, China,
among the Mussulmans and the Tartar tribesor if it has appeared, it has not
been of long duration. (Miraglia, Comparative Legal Philosophy, at p . 120.) It was
not until Manu's writings (300 B.C., approx.) that King in India seemed to be asso-
ciated with the administration of Justice. Gautam and Apastamba (both prior to
Manu) hardly mention anything about King's justice. Manu, and later Yajnavalkya
(2nd cent. A D . ) , Narada and Brihaspati (both between 3rd and 4th cent. A.D.) suc-
cessively give more and more vivid account of justice administered through the
King's court and the procedure adopted therein. But still the bulk of disputes con-
tinued to be settled at the village level through mostly the system of Panchayat (a
village council of five wise men in the community) and whenever justice was
administered by the King he was always regarded as being subject to Dharma (or
Superior Law) and punishable by the same law by which he punished others. The
doctrine "King can do no wrong" never found any place in the ancient Indian legal
philosophy. (See generally Professor Harrop A. Freeman; An Introduction to
Hindu Jurisprudence, The American Journal of Comparative Law, Vol. 8, pp. 29-43
(1959).)
13. 7 Indian Constituent Assembly Debates, p. 854 f f.
14. Note here the remarks of Mr. Justice Frankfurter of the U.S. Supreme
Court in his address at the occasion of 200th anniversary of John Marshall held at
the Harvard Law School. He observed ;

K. K. NIGAM 103
This historical background of the framing of the Indian Constitu-

tion might lead one to conclude that the Indian Constitution-makers
once and for all rejected the notion of ' due process ' and that nothing
like the due process guarantees should be found in the Indian consti-
tutional set up. However, a deeper study of the Indian Constitution
and its working would soon correct one's misgivings in this regard.
The Supreme Court as the new battlegroundThe Gopalan case
The fight for the incorporation of a due process clause in the
Indian Constitution was not limited to the Constituent Assembly. It
continued even after the final adoption of the Constitution 15 and now
the venue for this fight changed from the Constituent Assembly to the
Supreme Court of India. In A. K. Gopalan v. State of Madras,16 the
first important constitutional case which came before the Indian
Supreme Court, after the coming into force of the Constitution, the
petitioner contended that the words c procedure established by law ' in
Article 21 should be given somewhat the same meaning as words ' due
process of law * in the 5th and 14th Amendments of the Constitution
of the U.S.A. In this case the petitioner, A. K. Gopalan, 1 7 filed peti-
tion under Article 32 of the Constitution for a writ of habeas corpus
against his detention in Madras jail where he had been under deten-
tion since December 1947. He had earlier been sentenced to terms of
imprisonment but those convictions having been set aside, he was kept
under detention under orders of the Madras State Government. On
March 1, 1950, he was served with an order under section 3(i) of the
Preventive Detention Act, 1950.18 Gopalan challenged the legality of
the order contending that the Preventive Detention Act is unconstitu-
tional, contravening, among others, the provisions of Article 21 and 22
"Much as the constitution-makers of other countries have drawn upon our
experience, it is precisely because they have drawn upon it that they have, one and
all, abstained from including a 'due process' clause It is particularly noteworthy
that such was the course of events in framing the Constitution of India. Sir B.N. R a u ,
one of the most penetrating legal minds of our time, had a major share in its draft-
ing and for the purpose he made a deep study of the working of the Due Process
Clause during an extensive stay here". (See Government under Law, (Harvard Uni-
versity Press) at p. 24.
See generally, Wallace Mendelson: Foreign Reactions to American Experience
with 'Due Process of Law', 41 Va. L. Rev. 493 (1955).
15. The Constitution of India formally came into force with effect from Janu-
ary 26, 1950.
16. [1950] S.C.R. 88 ; [1950] S . C J . 174.
17. Shri A.K. Gopalan is now a Member of Parliament.
18. Act 4 of 1950. See India Code Vol. I l l Part I V p. 673 ;

of the Constitution. Comparing the provisions of Article 21 with

those of Amendments 5 and 14 of the American Constitution, Gopalan
contended that the Indian Constitution gives the same protection to
every person in India as the American Constitution, except that in the
United States * due process of law s has been construed by its Supreme
Court to cover both procedural and substantive law while in India
only the protection of procedural law is guaranteed. The line of
reasoning adopted by the petitioner was as below :
(a) The word 'established' was not the same as c prescribed '. It
has wider meaning. Thus, c procedure established by law '
of Article 21 was same as c process of law ' or c due process
of law', and the omission of word ' d u e ' from Article 21
did not alter its meaning.
(b) The word Maw ' in Article 21 meant 'jus'19 in the abstract
sense of the principles of natural justice, and not ' lex',
meaning enacted law. Any other meaning, the petitioner
said, would not give any legislative protection at all.
The Supreme Court, however, rejected this interpretation of
Article 21 advanced by the petitioner. It noted that the Constituent
Assembly debates reflected that " the expression ' d u e process of law '
was known to exist in the American Constitution and"after a discussion
was not adopted by the Constituent Assembly/' 30 The Supreme Court
observed:
" I f the Indian Constitution wanted to preserve to every
person the protection given by the due process clause of the
American Constitution there was nothing to prevent the Assembly
from adopting the phrase, or if they wanted to limit the same to
procedure only, to adopt that expression with only the words c pro-
cedural ' prefixed to ' law V 21
The Court continued:
" The phrase ' procedure established by l a w ' seems to be
borrowed from Article 31 of the Japanese Constitution 22 ... It is
19. ''According to modern philologists the latin 'jus* comes from the Sanskrit
root 'jits', which means to b i n d ; whence jus' is what binds or harmonizes."
Miraglia, Comparative Legal Philosophy, at p. 123.
20. [1950] S.C.J. 174 at p . 185:
21. Ibid., at p. 186.
22. Somewhat similar expressions are to be found in Irish Constitution too.
Article 6 of the Irish Constitution provides that the liberty of the person is inviolable
and no person shall be deprived of it except 'in accordance with law ' In Article
70, similarly, it is provided that no one shall be tried 'save in due course of law *
T h e expression 'in accordance with law' was interpreted to mean not rules of natural

K. K. NIG AM 105
not shown that the word c law ' means ' jus' in the Japanese
Constitution. The word ' due ' in the expression c due process of
law' in the American Constitution is interpreted to mean ' j u s t '
according to the opinion of the Supreme Court of the U.S.A. The
word imparts jurisdiction to the courts to pronounce what is ' due '
from otherwise, according to law. The deliberate omission of the
word * due ' from Article 21 lends strength to the contention that
the justiciable aspect of 'law ' that is to consider whether it is
reasonable or not by the Court does not form part of the Indian
Constitution. The omission of the word ' due ', the limitation
imposed by the word ' procedure ' and the insertion of the word
c
established ' thus brings out more clearly the idea of legislative
prescription in the expression used in Article 21. By adopting the
phrase ' procedure established by law ' the Constitution gave the
legislature the final word to determine the law." 23
Article 21, thus, as adopted by the Indian Constituent Assembly
and as later interpreted by the Supreme Court, authorises the legisla-
ture to pass a law prescribing the procedure by which a person may be
deprived of his life or personal liberty, and, in so far as the Article
shields such a law passed by an Indian legislature from being chal-
lenged in a court of law on the ground of being an c unjust' law, it
may seem that, it does not lay down a constitutional system comparable
to one adopted by the American Constitution, with the due process
concept lying at the base of it. Nevertheless, the Indian Constitution,
on the whole, it would be seen, lays down a system of fair procedure
for deprivation of life and personal liberty, and at some points the pro-
cedural guarantees provided by it even exceed those provided by the
American i due process clause * as interpreted by the U.S. Supreme
Court. The following points are to be noted in this regard :
(1) Article 21, if read alone, atleast gives full protection against
executive arbitrariness.
(2) Article 21, when read along with other Articles of the Consti-
tution, like Articles 20 and 22, places sufficient restrictions on the legis-
lative authority. 24
These points are discussed in the following pages.
justice but as the lawi n force at the time. The Irish Court gave the expression 'due
course of law' the meaning given to it according to English and not the American
law. (See The King v. Military Governor of the Hare Park Camp 2 Irish Reports K.B
104).
23. [1950] S.C.J. 174 at p. 186-87.
24. Please note that the words 'personal liberty' in Article 21 have a restricted
meaning. Article 21 is not the only Article in the Indian Constitution dealing with

Arttcle 21 and the executive arbitrariness

Justice Das, in the Gopalan case, observed : "Article 21 as con-
strued by me will, if nothing else, certainly protect every person against
the executive and as such will be as much a fundamental right deserv-
ing a place in the Constitution as the famous 39th chapter of the
Magna Carta was and is a bulwark of liberty in English law ", 25
Article 21 protects against any action depriving life or personal liberty
unless sanctioned by law. An administrative officer, therefore, in
order that he may lawfully deprive any person, citizen or non-citizen,
of his life or personal liberty must have authority by law to do so, and
must act strictly according to the procedure which he has been autho-
rised by law to follow, the word c law ' here meaning as the law validly
enacted by a competent legislaturefederal or state. 26
In Makhan Singh v. State of Punjab, 27 thus, an order dated July 30,
1951, issued by the Governor of Punjab under sections 3 and 4 of the
Preventive Detention Act, 1950 directing that the petitioner be detain-
ed till March 31, 1952, was held, on a petition for habeas corpus, to be
bad since it was not in strict accordance with the Act. Prescribing a
procedure to be followed in preventive detention cases, the Act had
laid down that every case of detention should be placed before an
Advisory Board constituted under the Act (section 9) and provided
that if the Board reported that there was sufficient cause for the deten-
tion " the appropriate Government may confirm the detention order
and continue the detention of the person concerned for such period as
it thinks fit " (section 11). Mr. Justice Patanjali Shastri, speaking for
the Court, observed:
" ...it is only after the Advisory Board, to which the case has
been referred, reports that the detention is justified, the Govern-
ment should determine what the period of detention should be and
not before. The fixing of the period of detention in the initial
order itself in the present case was, therefore, contrary to the
scheme of the Act and cannot be supported... It cannot be too
the protection of individual liberty. Many facets of 'personal liberty*, as this is

understood in the United States, are protected by other Articles of the Constitu-
tion and these Articles give the Indian Supreme Court and the High Courts power
to judge the reasonableness of the administrative or legislative action both on proce-
dural as well as substantive grounds. See Article 19.
25. [1950] S . C J . 174 at p . 303.
26. Makhan Singh v. State of Punjab [1951] S.C.J. 835 ; Ram Narayan Singh v.
State of Delhi [1953] S.C.J. 326.
27. [1951] S.C.J. 835 ; Cf. Narayan Singh v. State of Punjab [1952] S.C.J. III.

K. K. NIG AM 107
often emphasised that before a person is deprived of his personal

liberty the procedure established by law must be strictly followed,
and must not be departed from to the disadvantage of the person
affected." 28 (emphasis added).
In another case Ram Narayan Singh v. State of Delhi29 Mr. Patanjali
Shastri, then the Chief Justice of the Supreme Court, said :
" This Court has often reiterated before that those who feel
called upon to deprive other persons of their personal liberty in the
discharge of what they concieve to be their duty, must strictly and
scrupulously 6bserve the forms and rules of the law." 30
In this case, four persons were arrested on March 6, 1953, for alleged
defiance of an order prohibiting meetings and processions, an offence
punishable under section 188 of the Indian Penal Code 31 and were
being tried by a magistrate, who adjourned the proceedings till
March 11, under section 344 of the Criminal Procedure Code, 3 2
without making an order of remand to custody as required by that
section whenever it be necessary to keep the arrested person in custody.
Habeas Corpus proceedings were filed by one Ram Narayan Singh on
behalf of these four arrested persons before the Supreme Court under
Article 32 of the Constitution. In the return filed by the Government
in compliance with the Supreme Court's order of March 10, the Magis-
trate's order relating to the adjournment of the case was produced-
But the Supreme Court noted that the order merely directed adjourn-
ment of the case till March 11 and contained no direction for remand-
ing the accused to custody till that date, and on March 12 the Court
pronounced its judgment issuing the writ of habeas corpus and set the
persons concerned at liberty. Regarding the four slips of paper handed
to the Registrar of the Court on the evening of March 11, purported
to be warrants of detention with endorsement: * Remand to judicial
custody till March 1 1 ' , the Supreme Court observed :
" These documents, if genuine, would be of vital importance
but they were not produced notwithstanding the clear direction,
contained in our order of the 10th March... We cannot take
notice of documents produced in such circumstances, and we are
not satisfied that there was any order of remand committing the
28. [1951] S.C.J. 835 at p. 837.

29. [1953] S.G.J. 326.
30. Ibid., at p. 327.
31. Act 45 of 1860. See India Code Vol. Ill Part IV p. 3.
32. Act 5 of 1893, See India Code Vol. Ill Part IV p. 211.

accused to further custody till the 11th March... In the habeas

corpus proceedings, the Court is to have regard to the legality or
otherwise of the detention at the time of the return and not with refer-
ence to the institution of proceedings. The material date on the
facts of this case is the 10th March when the affidavit on behalf of
the Government was filed justifying the detention as a lawful
one." 33
These cases illustrate how Article 21, as strictly interpreted by the
Indian Supreme Court, has kept the administration's powers to deprive
personal liberty within the confines of law under which the adminis-
tration purports to act. Where there is no law authorising the adminis-
trative officer to interfere with the personal liberty of an individual,
his action similarly would be declared void and unconstitutional. 34
Article 21, thus, inasmuch as it lays down the rule that the administra-
tive power of the State cannot be exercised without express authority of
law and that it must be exercised in accordance with the strict letter of
the law, upholds the ' Rule of law ' and prescribes a rule of order of
society which it is the purpose of ' due process ' clause of the American
Constitution also to establish and maintain.
Personal liberty and the limitations on the legislative (as well as

administrative) authority
Referring, again, to the opinion of Justice Das in the Gopalan
case, 35 Article 21 also gives some protection even against the legisla-
tive authority in that a person may only be deprived of his personal
liberty in accordance with a procedure which must conform to the
requirements of Article 22. Clauses (1) and (2) 36 of this Article lay
33. [1953] S.G J . 326 at p. 327.

34. Birma v. State A.I.R. 1951 Raj. 127 ; See also Pirthi Singh v. Punjab
Government A.I.R. I960 Punjab 155.
35. [1950] S.G.J. 174 at p. 303.
36. Glauses (1) and (2) of Artiele 22 of the Indian Constitution are as below :
" 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 of 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 24
hours of such arrest and no such person shall be detained in
custody beyond the said period without the authority of a
magistrate/'

K. K. NIGAM 109
down certain procedural safeguards whenever a person is deprived of

his personal liberty by arrest or detention. These safeguards, however,
are not available whenever the arrest or detention is of an enemy alien
or is under any law relating to preventive detention. 37 There are no
procedural safeguards guaranteed under the Indian Constitution to one
who at the time of his arrest or detention is an enemy alien, except
those provided under the law authorising his arrest and detention.
But, in cases of preventive arrest or detention clauses (4) to (7), and
particularly clause (5), 38 of Article 22 provide some procedural safe-
guards.
For a discussion of the availability of procedural safeguards
against deprivation of personal liberty the arrests or detentions may be
classified into:
(A) Ordinary (or punitive) ones, and
(B) Preventive ones.
A. Ordinary (or punitive) arrests and detentions
In cases of ordinary arrests and detentions Article 22 provides the
following procedural safeguards to the person arrested and detained :
(1) The right to be informed, as soon as may be, of the grounds
of arrest.
(2) The opportunity to consult, and be defended by, a legal
practitioner of his choice.
(3) The person arrested must be produced before the nearest
magistrate within a period of 24 hours of arrest.
These safeguards, however, are not available in all cases of ordi-
nary arrests or detentions. The exact scope of Article 22 clauses (1)
and (2) making these safeguards available came to be settled by the
Supreme Court in the case of State of Punjab v. Ajaib Singh.*9 In this
37. Clause (3) of Article 22 provides :
" (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."
38. Clause (5) of Article 22 provides :
" (5) When any person is detained in pursuance of an order made
under any law providing for preventive detention, the autho-
rity 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 repre-
sentation against the order.
39. [1952] S.C.J. 664.

case the validity of the detention of a recovered Muslim girl, under

section 4(1) of the Abducted Persons (Recovery and Restoration) Act,
1949, for the purpose of handing her over to her next of kin was chal-
lenged by Ajaib Singh who, it was found by the Indian Police officers,
had abducted the girl and kept her with him during the 1947 post
partition riots. On the basis of the report submitted by the Indian
officers, a tribunal consisting of two Superintendents of Police, one
each from India and Pakistan, directed that the girl be sent to Pakistan
and restored to her next of kin there. During this period she was
removed from Ajaib Singh's possession and lodged in the Recovered
Muslim Women's Gamp in Jullunder City, Punjab. The High Court
having granted the writ, the State of Punjab appealed to the Supreme
Court under Article 132(1) of the Constitution. The main question
to be considered before the Supreme Court was: whether the Act
which authorised the police officer who takes the abducted person into
custody to deliver such person to the custody of the officer-in-charge of
the nearest camp for the reception and detention of abducted persons
was in conflict with the provisions of clauses (1) and (2) of Article 22.
The Supreme Court, while emphasising the necessity for greater pro-
tection of the individual in cases of arrest without warrant because of
absence of prior application of judicial mind, which is ordinarily the
case in arrests without warrant, 4 0 in reversing the Punjab High Court
decision held that the petitioner Ajaib Singh was not entitled to any
relief. The Supreme Court observed: " the physical restraint put
upon an abducted person in the process of recovering and taking that
person into custody without any allegation or accusation of any actual
or suspected or apprehended commission by that person of any offence
of a criminal or quasi-criminal nature or of any act prejudicial to the
state or the public interest, and delivery of that person to the custody
of the officer-in-charge of the nearest Camp under section 4 of the
impugned Act cannot be regarded as arrest and detention within the
meaning of Article 22 (1) and (2)/' n The detention of the girl in the
present case was obviously without any accusation or allegation of
criminal or quasi-criminal nature levelled against her. On the con-
trary, her being kept in the custody of the officer-in-charge of the
Camp was in her own interest and in furtherance of a social policy.
The procedural safeguards provided by Article 22 clauses (1) and
(2), thus, are available only when arrest and detention is for punitive
reasons. They would not apply where the deprivation of one's
40. Ibid., at p. 671.
41. Ibid., at p. 672.

K. K. NIOAM 111
personal liberty is the result of the reasonable exercise of a beneficial

legislation. For example, removal of persons from a brothel under a
statute like the Bengal Suppression of Immoral Traffic Act would not
be violative of Article 22.42
However, it has been held by the Supreme Court that in land
revenue recovery or recovery of income-tax cases too the provisions of
Article 22 clauses (1) and (2) would not apply. In Collector of Malabar v*
E. Ibrahim,43 wliere the respondent was arrested in pursuance of a war-
rant issued by the Collector of Malabar under section 48 of the Madras
Revenue Recovery Act, 1864, on receipt of a proper certificate from the
Income-tax Officer under section 46(2) of the Indian Income-tax Act, u
for non-payment of income-tax arrears, the Supreme Court held that
Article 22 would not apply. The Court held that the arrest was not
in connection with any allegation or accusation of any actual or sus-
pected or apprehended commission of any offence of a criminal or
quasi-criminal nature. It was really an arrest for a civil debt in the
process or mode prescribed by law for recovery of arrears of land
revenue. Regarding the contention of the respondent for an oppor-
tunity to be heard before arrest, Justice Imam, who delivered the judg-
ment of the Court, said :
" There is nothing in section 48 of the Act which requires
Collector to give the defaulter an opportunity to be heard before
arresting him. It is true that the Collector must have reason to
believe that the defaulter is wilfully withholding payment or has
been guilty of fraudulent conduct in order to evade payment. The
Collector, therefore, must have some material upon which he bases
his beliefand a court may look into that material in appropriate
cases in order to find out if the conditions laid down in the sections
have been fulfilled or not." i5
42. Raj Bahadur v.Legal Remembrancer A.I.R. 1953 Cal. 522. Detention of persons
in lunatic asylms or welfare homes etc. would also, it seems, come in the same
category.
43. A.I.R. 1957 S.C. 688.
44. Section 46(2) of the Indian Income-tax Act runs as below :
" The Income-tax Officer may forward to the Collector a certificate......
specifying the amount of arrears due from an assessee, and the Collector on
receipt of such certificate, shall proceed to recover from such assessee the
amount specified therein as if it were an arrear of land revenue :
Provided that he shall for the purpose of recovering the said amount
have the powers which under the Civil Procedure Code, 1908, a Civil Court
has for the purpose of the recovery of an amount due under a decree "
45. A.I.R. 1957 S.C. 688 at p. 692. See also Purshotiam Govindji v. BM. Desai
1959] S.C.J, 75.

In Purshottam Govindji v. B. M. Desai,46 another case of arrest foi

recovery of income-tax arrears under section 13 of the Bombay Cit)
Land Revenue Act, 1876, and section 46(2) of the Indian Income-tax
Act, 1922, the Supreme Court, similarly, held that this procedure did
not offend Article 22 of the Constitution. Regarding the constitu-
tionality of section 46(2) of the Indian Income-tax Act the Supreme
Court simply said:
" The first objection...is that it contravenes the fundamental
rights guaranteed by clauses (1) and (2) of Article 22. In view of the
decision of this Court in the State of Punjab v. Ajaib Singh and Another
this objection has not been pressed before us and we need say no more
about it." 47
With these limitations, then, the above-mentioned three procedural
safe-guards provided under Article 22 clauses (1) and (2) guaranteeing
fair procedure in the event of deprivation of one's personal liberty (as the
expression means under Article 21) are available to an individual and
entitle him to proceed under Article 32 or 226 to the Supreme Court or
the High Court, as the case may be, for the grant of a writ of habeas
corpus in cases of their breach. It is proposed to consider in detail each
of these three procedural safeguards.
(X) The right to be informed of the grounds of arrest
Clause (1) of Article 22 provides that upon his arrest a person will
not be detained without being informed, as soon as may be, of the
grounds of such arrest. The object of this safeguard is that on hearing
the grounds of his arrest, the arrested person will be in a position to
make an application for bail or move the High Court for a writ of
habeas corpus. Also, this will enable him to prepare his defence well
in time 48 and give him opportunity to meet the case against him.
Though it is not necessary for the authorities to furnish full details of
the offence, sufficient particulars must be furnished to enable the
arrested person to understand why he has been arrested. The grounds
to be communicated to the arrested person should be somewhat similar
to the charges framed by the Court for trial of a case. Thus, it was
held in Vimal Kishore v. State of U.P.,49 that merely informing the
person that he has been arrested under section 7 of the Criminal Law
46. [1959] S.C.J. 75.

47. Ibid,, at p. 78.
48. Vimal Kishore v. State of U.P. A.I.R. 1956 Allahabad 56.
49. Ibid,: See also MadhuLimaye v. State A.I.R. 1959 Punjab 506, 61 Punjab
Law Reporter 413.

K. K. NIGAM 113
Amendment Act, 1932, without giving any particulars of the alleged

acts for which such action has been taken against him, is not sufficient
compliance with Article 22 (1).
The next question for consideration is: how soon after the
arrest the person must be furnished the grounds of his arrest. The
Constitution has used the words ' as soon as may be \ and these
have been interpreted by the Supreme Court to mean ' within a reason-
able period of time after the arrest 1 . Obviously, due to different
circumstances of each case the Court cannot lay down a definite period
as reasonable for all cases. However, in any proceeding for habeas
corpus the Court will pronounce if the arresting authority has com-
municated the grounds as soon as reasonable in the circumstances of
the case and, if it finds that a resonable time has already elapsed and
the arrested person has not yet been informed of the grounds of his
arrest, the Court would order his immediate release.50 In The Vimal
Kishore case 51 the Court held that in a habeas corpus proceeding any
communication subsequent to the date of return cannot save the deten-
tion of the petitioner from invalidity where no grounds were furnished
to him prior to the filing of the return by the Government, the
material date for determining the validity of return being the date of
return. 52
(2) The Right to Counsel
Article 22 (1) gives to a person arrested and detained the right to
consult, and be defended by, a legal practitioner of his choice. Though
the Supreme Court has had no occasion to consider the scope of
Article 29(1) the Court's approach is indicated in Janardan Reddy v.
State of Hyderabadh% a case that arose prior to the Constitution, wherein
the Court was concerned with the construction of section 271 of the
Hyderabad Criminal Procedure Code which provided :
" Any person accused of an offence before a Criminal Court,
or against whom proceedings are instituted under this code in any
such Court, may of right be defended by a pleader " 5 4
The petitioners who were accused as "communists wedded to the
policy of overthrowing the government by violence and setting up in
50. See Vimal Kishore v. U.P., supra; State of Bombay v. Atma Ram, [1951] S.C J.
208.
51. Supra.
52. See Ram Narayan v. State of Delhi [1953] S.G.J. 326.
53. [1951] S.GJ. 320.
54. Section 340 (1) of the Indian Criminal Procedure Code is similarly worded.

its place Communist Raj (State) " were tried for indiscriminate mans-
laughter and shooting in a few villages of Hyderabad. They were
convicted and sentenced to death. While their petition for appeal
before the Judicial Committee of the State of Hyderabad was pending
the Constitution of India came into force and the case came before the
Indian Supreme Court under Article 32 of the Constitution for consid-
eration of grant of a writ in the nature of certiorari.
The counsel for the petitioners argued that in two of the cases 55 there
was no fair trial inasmuch as the persons accused therein were not
afforded any opportunity to instruct counsel and they had remained
undefended throughtout the trial. 56 In his argument, the counsel relied
mainly on some American cases especially Powell v. Alabama ,57 The
Supreme Court, however, observed :
" It seems to us that in dealing with the point we cannot
rest our judgment wholly on American precedents, which are
based on the doctrine of due process of law, which is peculiar to
the American Constitution, and also on certain specific provisions
bearing on the right of representation in a criminal proceeding.
The provision which is material to the contention raised before us
is section 271 of the Hyderabad Criminal Procedure Code which
corresponds to section 3^0 of the Indian Criminal Procedure
Code. 58 ... This provision must undoubtedly be construed liberally
55. Criminal Cases Nos. 17 and 18. There were three cases tried. The third
was Criminal Case No. 14 of 1949.
56. The Supreme Court, however, noted that there was sufficient evidence to
show that the accused were wealthy persons and were given facilities to engage lawyers
for their defence. The point relating to right of counsel was also raised before the
High Court, where Shripat Rao, J., who delivered the leading judgment observed :
" It was not contended before us in appeal that they were not afforded such an
opportunity by the special tribunal (the trial court). In fact the High Court also
wanted them to be represented by lawyers for which time was allowed, but on the
next hearing they stated that they do not wish to engage any lawyer on their behalf
and that the High Court need not engage any lawyer for them. This shows that the
accused for reasons best known to themselves did not avail of the opportunity of
engaging lawyers In view of this, the plea that opportunity was not given to
the accused to engage lawyers and, therefore, the trial was vitiated, in our opinion,
fails."
57. 287 U.S. 45 (1932).
58. Section 340 of the Indian Criminal Procedure Code runs as below :
" Any person accused of an offence before a criminal court, or against whom
proceedings are instituted under this code in any such court, may of right be defended
by a pleader.'*

K. K. NIGAM 115
in favour of the accused and must be read along with the rules
made by the High Courts and the Circular Orders issued by them
enjoining that where in capital cases the accused has no means to
defend himself, a counsel should be povided to defend him." 5 9
At another place, the Supreme Court, having noted from the evidence
that there was hardly reason to believe that the accused were not given
opportunity to engage a lawyer, said :
" But we must state that throughout the argument on this
point, we cannot help feeling that the special tribunal should have
taken some positive steps to assign a lawyer to aid the accused
in their defence/ 60
Quoting a passage from Powell v. Alabama, the Supreme Court ruled :
" T h a t the assignment of a counsel in the circumstances
mentioned in the passage is highly desirable, cannot be disputed.
But the question raised before us is whether in law non-assignment
of a counsel would vitiate the trial The proper view seems
to us to be : (1) that it cannot be laid down as a rule of law that
in every capital case where the accused is unrepresented, the trial
should be held to be vitiated; and (2) that a court of appeal or
revision is not powerless to interfere, if it is found that the
accused was so handicapped for want of legal aid that the
proceedings against him may be said to amount to negation of a
fair trial." 62
This holding makes the right to counsel guarantee to a person only
the right to engage a lawyer of his choice if he so wishes. It also shows
that the courts are bound to provide the accused all opportunity to do
so; further, that it does not give any right to the accused to get his
conviction quashed simply on the ground that he was not represented
by a counsel in a capital case, all opportunity having been provided to
accused to engage his own counsel. Though the Supreme Court here
expressly rejected the analogy of the American due process doctrine,
curiously enough the law laid down by it is in no way different than
what the U. S. Supreme Court, deciding a similar case under the due
process doctrine, would have laid down.
In the U.S.A. the scope of the right to counsel depends upon
whether the prosecution is federal or state. For federal prosecutions
59. Supra, at p. 327.

60. Supra, at p. 329.
61. See infra page 116
62. Supra at p. 327.

Amendment VI of the American Constitution lays down expressly

that " In all criminal prosecutions the accused shall enjoy the right
to have the assistance of counsel for his defence." The Federal
Crimes Act, 1790, imposed a statutory duty on courts to assign counsel
to represent the defendant in capital cases. Not until the case of
Johnson v. erbst63 was decided by the Supreme Court was it recognised
that courts had a duty to appoint counsel for an indigent accused in
non-capital cases unless he already had or waived the assistance
of counsel.
With respect to state prosecutions the due process provisions of the
14th Amendment were sought to be extended in the case of Powell v.
Alabama 64 to cover this fundamental right to counsel in capital cases.
The Supreme Court in that case held that,
" in a capital case, where the defendant is unable to
employ counsel, and is incapable adequately of making his own
defence because of ignorance, feeble-mindedness, illiteracy or the
like, it is the duty of the court, whether requested or not, to assign
counsel for him as a necessary requisite of due process of law." 65
The rule in Powell v. Alabama, it may be noted, was restricted to
capital cases and only where the accused was either indigent or could
not plead his own case without the assistance of a counsel because of
his illiteracy, ignorance or feeble-mindedness. 66
In the case of Janardhan v. Hyderabad, 67 where the accused were
charged for a capital offence there was abundant evidence to prove
that the accused were not only wealthy enough to provide their own
lawyers and were intelligent persons but had also insisted on being tried
without a lawyer at the High Court level. If a similar case had come
before the U.S. Supreme Court from a conviction on a state prosecu-
tion, the accused would not have been provided any protection and
their conviction could not have been set aside. It may be noted,
however, that even though the Indian Supreme Court, while rejecting
the due process doctrine decided the case in the same way as the U.S.
Supreme Court would have decided, the Indian Court expressed its
indignation at the fact that inspite of the rules of the High Court to
63. 304 U.S. 458 (1938).

64. Supra, Note 57.
65* 287 U.S. 45 at p. 71 (1932).
66. See Belts v. Brady, 316 U.S. 455 (1942).
67. [1951] S.C J. 320.

K. K* NIGAM 117
provide a state counsel to an indigent person in a capital case the

special tribunal did not take some positive steps to assign a lawyer to
aid the accused even though they were wealthy persons and were
provided all opportunity to employ a lawyer. 68 The Supreme Court
though held that the trial in these circumstances may not be, as a
matter of constitutional law, regarded as vitiated, it nevertheless
endowed itself with a reservoir of power to interfere (and probably set
aside the conviction) incases where gross injustice occurs to the accused.
The Court said : "a court of appeal or revision is not powerless to inter-
fere, if it is found that the accused was so handicapped for want of
legal aid that the proceedings against him may be said to amount to
negation of a fair trial." 6y This only shows the alertness of the
highest court in a democratic society to set aside any conviction where
the trial has not proceeded in a fair way, irrespective of whether it
accepts or rejects one doctrine or the other.
The procedural right to engage one's own counsel is a limitation
on all the three branches of the governmentexecutive, legislative
and the judicial. The legislature should not pass any law taking away
this right; the administration should not detain the arrested person
without providing him an opportunity to consult his lawyer ; and the
courts should similarly provide the accused all opportunity to engage
and consult his counsel. In Inderjeet Singh v. State of Delhi,70 the
Punjab High Court held that the right to consult one's own counsel
could not be made dependent on the discretion of the presiding judge
and the state statute which had so provided was declared void as
being violative of Article 22 of the Constitution.
Here one important question that arises is: at what stage of
proceedings does the right to consult one's own counsel arise ? I n
India, it is recognized that the right accrues to the accused as soon as
he is arrested. Motibai v. State,11 held that Art. 22 gives to a person
arrested a right to consult a legal advisor of his own choice and to
be defended by him from the moment of his arrest and also to have an
effective interview with the lawyer out of the hearing of the police
officers, though it may be within their presence.
In the same way it has been held in the pre-1950 Constitution
cases that sec. 340, Cr. P.C. 7 2 which gives an opportunity to an
68. Ibid., at p. 329.

69. Ibid, zip. 327.
70. A.I.R. 1953 Punjab 52 : 54 Punjab Law Reporter 312 (1952).
71. A.I.R. 1954 Raj. 241.
72. See supra note 58.

accused as of right to be defended by a pleader should be construed to

give a right to consult one's counsel even at the stage of investigation.
Thus, it was held in Sundar Singh v. Emperor, that it was in the interests
of justice that an accused person should have access to legal advice
even while he was in police custody during the course of an investiga-
tion. Again in Jahangiri Lai v. Emperor, 74 it was held that " An under-
trial prisoner is entitled to have the assistance of counsel and further he
is entitled to communicate with his relations and friends The
matter is really reduced to a farce if interviews are allowed only after
a confession has been recorded." And in Kailash JVath v. Emperor,75
it was held that " A magistrate is bound to give to the accused
sufficient facility to be represented by a lawyer, specially when they are
in custody from the time that they had been arrested and accused of an
offence." 76 Similarly in Hansraj & Ors. v. State,77 where some railway
porters had been arrested and tried summarily in the jail within the
next two days and were convicted it was pointed out by the High
Court of Allahabad that in this case no information has been given to
accused about the date of trial nor were they told of their rights under
Art. 22 of the Constitution and sec. 340, of Cr. P. C. about legal
assistance etc., nor were they told that if they made any statement
which was damaging to their interest the same may be used against
them. The High Court held that Art. 22 and sec. 340 were denied to
the accused when prosecution adopted such a hot-haste in having the
trial held and the trial therefore was vitiated.
Under the United States Constitution, however, it is not yet
clear when the right to counsel arises. 7S Carter v. Illinois 7a seems to
hold that the accused has a right to counsel, unless waived, from the
time of arraignment until final conviction. In Stroble v. California80
where a lawyer was denied permission to see the arrested person shortly
after his arrest, but where the arrested person had not yet requested a
counsel to represent him, the Court held there was no denial
of due process of law. In Crooker v. California81 the petitioner, a law
student, was denied permission to employ his lawyer and be represented
73. A.I.R. 1930 Lahore 945.

74. A.I.R. 1935 Lahore 230.
75. A.I.R. 1947 AIL 436.
76. See also In re Llewelyn Evans*, A.I.R. 1926 Bom. 551.
77. A.LR. 1956 All. 641.
78. Barrett, ConsHtutional LawCases and Materials, 1959.
79. 329 U.S. 173(1946).
80. 343 U.S. 181 (1952).
8L 357 U.S. 433 (1958).

K. K. NIGAM 119
by him immediately after arrest. During detention the petitioner was

held incommunicado, and his confession extracted over his objection.
On the basis of this evidence he was prosecuted for murder of his
paramour and sentenced to death. 82 The Supreme Court held that
there was no denial of due process of law by not affording the
petitioner the right of representation through a lawyer immediately
after his arrest. 83
In Ciceina v. Lagay,u where Ciceina after his arrest on charge of
murder requested to seek the assistance of an already engaged lawyer
of his own but was denied opportunity to do so and as a result made a
written confession and was convicted, the Supreme Court held there
was no denial of due process. The Supreme Court observed : " The
contention that petitioner had a constitutional right to confer with
counsel is disposed of by Crooker v. California, 356 U.S. 433. There we
held that California's failure to honour Crooker's request during a
period of police interrogation to consult with a lawyer, as yet un-
retained, did not violate the Fourteenth Amendment. Because the
present case, in which petitioner was denied an opportunity to con-
fer with the lawyer whom he had already retained, sharply points up
the constitutional issue involved, some additional observations are in
order Petitioner would have us hold that any state denial of a
defendant's request to confer with counsel during police questioning
violates due process, irrespective of the particular circumstances in-
volved. Such a holding, in its ultimate reach, would mean that state
police could not interrogate a suspect before giving him an opportu-
nity to secure counsel. Even in federal prosecutions this Court has
refrained from laying down any such inflexible rule Still less should
we impose this standard on each of the 48 States as a matter of con-
stitutional compulsion This Court has of ten recognized that it is
of the ' very essence of our federalism that the States should have the
widest latitude in the administration of their own systems of criminal
82. The accused, had a counsel at the time of trial. H e was afforded this
opportunity after he had made the confession.
83. In their dissent Justice Douglas, joined by Chief Justice Warren and
Justices Black and Brennan said, however,
" No matter how well educated and how well trained in the law an accused may
be he is sorely in need of legal advice once he is arrested for an offence that may
exact his life H e has the right to receive the benefit of the advice of his own
counsel at the trial That same right should extend to the pre-trial stage
The demands of our civilization expressed in the due process clause require that die
accused who wants a counsel should have one at any time after the moment of arrest."
84. 357 U.S. 504 (1958).

justice ' T h e b r o a d rule sought here a n d in Crooker would require

us to apply the F o u r t e e n t h A m e n d m e n t in a m a n n e r which would be
foreign b o t h to the spirit in which it was conceived a n d the way in
which it has been implemented by this C o u r t "
F r o m these cases it is difficult to find out at what time after the
arrest a n accused in the U.S.A. would be regarded as entitled to a consti-
t u t i o n a l right to counsel. Certainly, it is clear that the right does not
accrue to him soon after his arrest. But this rule waters down the
very value of the due process right to counsel. 8 5 I n these circum-
stances, then, it m a y b e suggested t h a t the law laid d o w n in Article
22(1) a n d sec. 340 of the C r i m i n a l Procedure Code as interpreted in
Motibai v. State a n d other I n d i a n cases seems to guarantee more than
the due process right to counsel as it stands to-day.
I t m a y b e noted t h a t in Carter v. Illinois, the accused who had
pleaded guilty before the trial court h a d no assistance of counsel at the
time he h a d confessed the guilt, b u t was provided one by the State at
the t i m e of sentencing. H e r e t h e confession of the guilt was done be-
fore the court after the J u d g e h a d explained to the accused the conse-
quences of such confession, a n d thus it could be supposed that there
was not m u c h of a denial of fair procedure. 8 6 But the situation in
Stroble, Crooker a n d Cieenia cases was different. I n the latter cases the
confession h a d been m a d e by the accused before the police during
interrogation a n d not in the presence of a magistrate, judge or trial
court a n d without any prior assistance of counsel. This in itself was
held not to be a denial of d u e process. Not only this, the confessions
m a d e in such circumstances were held admissible a n d m a d e the basis for
conviction a n d the use of such confession was held not to be barred by
the d u e process clause. T h e Court observed in Crooker v. California,^
" . . . s t a t e refusal of a request to engage counsel violates due process not
only if the accused is deprived of counsel a t trial on the merits,
C h a n d l e r v. Fretga, supra, b u t also if he is deprived of counsel for any
85. As stated by a Committee headed by Prof. Zechariah Chafee :

*' A person accused of crime needs a lawyer right after his arrest probably more
than at any other t i m e / ' (Quoted by Mr. Justice Douglas in his dissenting opinion in
Crooker, supra.)
86. The U.S. Supreme Court in this case though did not over turn the
conviction on the ground of there being practically no assistance to counsel available
to the accused, nevertheless stated that " the need for such assistance may exist at
every stage of the prosecution, from arraignment to sentencing.*' See Frankfurter, J.
329 U.S. 173 at p . 174(1946).
87. 357 U.S. 433 at pp. 439-40 (1958).

K. K. NIGAM 121
part of the pretrial proceedings, provided that he is so prejudiced

thereby as to infect his subsequent trial with an absence of <c that
fundamental fairness essential to the very concept of justice/ 9 Lisenba
v. People of State of California, 1941, 314 U.S. 219, 236. The latter
determination necessarily depends upon all the circumstances of the
case." 88
It appears therefore that the test the U.S. Supreme Court would
adopt in determining the question of violation of due process clause in
these situations would be whether or t not there is absence of " funda-
mental fairness essential to the very concept of justice ". This peculiar
federal concept prevailing in the U.S.A. would often come in the way
of the Supreme Court overturning a State prosecution. In India, on
the other hand, the strict rule is that the accused must be afforded
opportunity to consult his lawyer if he so demands from the moment
of his arrest, that is, during interrogation as well as during trial, and
any denial of such opportunity would be treated as violation of one's
fundamental right to counsel guaranteed in Art. 22. So far as is
known, there is no decided case in India where a confession extracted
by the police during investigation without providing the accused an
opportunity to consult his counsel has been regarded as admissible evi-
dence and made the basis of the conviction of the accused. In fact
the provisions of the Indian Evidence Act 89 exclude any confession
made before a police officer whether with the assistance of a counselor
not from being admitted in the trial or relied upon for the purposes of
conviction of the accused.
(3) The right to be produced before a Magistrate
Due process of law under the American Constitution does not
make it obligatory on the arresting officer to produce the arrested per-
son before a judicial officer for arraignment within a certain specified
period after arrest. Perhaps, because of the availability of certain
statutory procedural safeguards there was no necessity felt to invoke
the due process clause for such purpose. For federal prosecutions,
rule 5(a) of the Federal Rules of Criminal Procedure provides :
88. In House v. Mayo, 1945, 324 U.S. 42, an uneducated man in his twenties, a
stranger to the area was brought before a court to be sentenced on two convictions
previously returned against him. He was there presented for the first time with a
burglary information filed by the State, asked for and was denied opportunity to
engage counsel, and finally pleaded guilty to the information, thereby obviating any
necessity for trial of the charge on the merits. The Supreme Court held this to be
denial of due process right to counsel.
89. See sections 25 and 26 of the Indian Evidence Act, 1872, infra, note 103.

*' Any officer making an arrest under a warrant issued upon a

complaint or any person making an arrest without a warrant shall
take the arrested person without unnecessary delay before the
nearest available Commissioner or before any other nearby officer
empowered to commit persons charged with offences against the
laws of the United States."
Most of the states in the United States too have similar enactments.
In India, for all federal and state prosecutions, sections 60 and 61
of the Code of Criminal Procedure, 1898, provide as below:
*' Sec. 60A police officer making an arrest without warrant
shall without unnecessary delay take or send the person arrest-
ed before a magistrate having jurisdiction in the case, or before
the officer in charge of the police station.
Sec. 61No police officer shall detain in custody a person
arrested without warrant for a longer period than under all the
circumstances of the case is reasonable, and such period shall not
in the absence of a special order of a magistrate under section 167
extend twenty-four hours "
These provisions of the Criminal Procedure Code lacked the special
sanctity which the constitutional provisions have and were not deemed
as satisfactory by the Indian statesmen. The Constitution-makers, there-
fore, provided in Article 22(2) 90 a rigid rule of arraignment of all
arrested persons within 24 hours of the arrest.
The Indian courts have required strict compliance with the terms
of Article 22(2). In Gunupati Keshavram v* Nafisul Hasan91 the Supreme
Court declared that failure to produce a prisoner before a magistrate
in the time provided by Article 22 would warrant his immediate
release. In this case of great constitutional significance the editor
of a Bombay weekly newspaper, Blitz, Mr. Homi Mistry, was arrested
in Bombay on March 11,1952, and brought to Lucknow to be pro-
duced before the Speaker of the Uttar Pradesh State Legislative
Assembly to answer a charge of breach of privilege. He was not pro-
duced before a magistrate within 24 hours of his arrest but was kept
in detention in the Speaker's custody at Lucknow. Upon a petition
for habeas corpus brought on behalf of Mr. Mistry, on March 18, the
Supreme Court held that there was " a clear breach of the provisions
of Article 22 of the Constitution of India which is quite peremptory
90. See supra note 36.

91. AI.R. 1954 S.C. 636.

K. K. NIGAM 123
in its terms," 93 and ordered his immediate release.93 In the same way
in Swami Hariharanand Saraswati v. The Jailor,H where on 17th Febru-
ary, 1954, the petitioners were arrested by a Magistrate acting under
sec. 64, Cr.P.C. for having obstructed the entry of the Harijans into
the temple of Shri Vishwanathji of Banaras through the main gate and
thereby having committed an offence punishable under section 6, U.P*
Removal of Social Disabilities Act, 1947, and the Magistrate the same
day remanded the petitioner into jail custody, it was held by the
Allahabad High Court, relying on the Supreme Court decision in State of
Punjab v. Ajaib Singh,95 that in the circumstances of the case there was
no proper production of the petitioners before a competent magistrate
within 24 hours of their arrest without warrant and consequently their
further detention in jail was illegal and unconstitutional. According
to the High Court the production of the accused could have been done
before another magistrate that is a Magistrate other than the one who
had arrested the accused and since this was not done further detention
of the accused was held to be illegal.
Federal Prosecution cases in the U.S.A.
Under the United States Constitution even though no rigid time
limit has been provided either by the due process clause or by the
statutory law, in federal prosecutions, the arrested person is required
by rule 5(a) of the Federal Rules of Criminal Procedure noted above
to be-produced before a magistrate or a judicial officer ''without
unnecessary delay" and this requirement has been given strict
enforcement by the U.S. Supreme Court. Thus, in Upshaw v. U.S.,96
92. Ibid, at p. 637.

98. It is generally said that the recent case of M.S. M. Sharma v. Sri Krishna
Sinha, (A.I.R. 1959 S.C. 395, commonly referred as the Searchlight case) has
overruled the Gunupati case. Such a sweeping conclusion, however, is unwarranted
The Searchlight case decided that the freedom of speech guaranteed under Art. 19 (1) (a)
or one's personal liberty under Art. 21 of the Constitution are subject to
Art. 194 of the Constitution dealing with the powers and privileges of the legislatures.
Unlike the Gunupati case no question of conflict of rights of an accused as given in
Art. 22 and the powers and privileges of the legislatures was involved in this case. The
editor of Searchlight in the Searchlight case was not at all arrested or detained and so
the question of such a conflict did not arise. Even if it be assumed that the Gunupati
case has been overruled by the dictum in the Searchlight's case, all that it can mean is
that the protection given under Art. 22 cannot be availed of only when the arrest or
detention is made under the orders of a House of Legislature and in all other cases
of detention it can still be availed of.
94. A.I.R. 1954 AUd. 601.
95. A.I.R. 1953 S.C. 10,
96. 335 U.S. 410.

where a person was arrested on suspicion and held for 30 hours

during which time his confession was obtained, it was held by the
Supreme Court that the arrest was illegal and hence the confession
inadmissible. In the recent case of Mallory v. U.S.,91 similarly, where
a negro boy of 19 years age was arrested for suspected rape at about 2
p.m. in the afternoon and had confessed by 10 p.m. the same day and
the next morning produced before the Commissioner, the Supreme
Court held that the arraignment was not " without unnecessary delay/
The Supreme Court observed :
" The circumstances of this case preclude a holding that
arraignment was * without unnecessary delay.' Petititioner was
arrested in the early afternoon and was detained at headquarters
within the vicinity of numerous committing magistrates. Even
though the police had ample evidence from other sources they
first questioned him (petitioner) for approximately a half hour.
When this enquiry of 19 years old lad of limited intelligence pro-
duced no confession the police asked him to submit to a lie-detector
test. He was not told of his rights to counsel or to a preliminary
examination before a magistrate, nor was he warned that he might
keep silent and ' that any ' statement made by him may be used
against him.5 After four hours of further detention at headquar-
ters, during which arraignment could easily have been made in
the same building in which the police headquarters were housed,
petitioner was examined by the lie-detector operator for another
hour and a half before his story began to waver. Not until he
had confessed, when any judicial caution had lost its purpose, did
the police arraign him.' 5 98
I n the Mallory case thus where the detention before arraignment was
for a short duration, being even less than 24 hours, the U.S. Supreme
Court held the arrest illegal and any confession made during this
period as inadmissible.
While emphasising the necessity of a rule requiring that the police
must with reasonable promptness show legal cause for detaining an
arrested person (i.e., arraign him before a Commissioner or judicial
officer) the Supreme Court of the United States in McNabb v. U.S."
said:
" Legislation such as this constitutes an important safe-
guard For this procedural requirement checks resort to those
97. 354 U.S. 449 : 1 L. Ed. 2d 1479 (1957).
98. ibid at p. 455.
99. 318 U.S. 332(1942).

K. K. NIGAM 125
reprehensible practices known as the ' third degree * which, though

universally rejected as indefensible, still find their way into use.
It aims to avoid all the evil implications of secret interrogation of
persons accused of crime." 10
In India, the evil implications of secret interrogation by police
were recognised as early as year 1872 when in that year those 101 res-
ponsible for enacting the Indian Evidence Act, 102 which is applicable
to the whole of India, adopted the rules contained in sections 25 and
26 of that Act. 103 These rules bar completely the admission of any
confession made by an accused before a police officer, whether in
police custody or not. Similarly, no confession made by an accused,
either before the police officer or to any one else namely, a co-accused
or a stranger, is admissible, while the accused was in police custody
100. Ibid., at pp. 343-44.

101. Rt. Hon'ble Sir George Rankin speaking of the Indian Evidence Act and
the contribution of Sir James Stephen to it said :
" T h e Indian Evidence Act of 1782, like the Indian Penal Code, has in
substance become the law of many places outside India. It was drawn by James
Stephen and is nearer to being the work of one man than any of the other Indian
Codes." (Rankin, Background of Indian Law, 1946, at p. 111).
Sir James, who succeeded Sir Henry Sumner Maine in Dec. 1869 as a Law
Member to the Government of India, produced a comprehensive Indian Evidence Act
of 167 sections which has since then remained practically unaltered.
102. Act I of 1872 ; India Code Vol. IV Part X I p. 11 f.
103. Sections 25 and 26 of the Indian Evidence Act are as below :
" 25 No confession made to a police officer shall be proved as against a person
accused of any offence.
26No confession made by any person whilst he is in the custody of a police-
officer, unless it be made in the immediate presence of a Magistrate shall be proved
as against such person "
For the reasons which led to the curtailment of powers of police in India, see the
First Report of the Indian Law Commissioners, quoted in Field, The Law of Evidence in
British India, 1884 at p. 133.
As an example of excessive ruthless behaviour which the police in any country
might resort to, Sir James Stephen (who was also responsible for carrying through the
Indian Legislative Council the Code of Criminal Procedure of 1872) notes in his
book, A History of the Criminal Law of England, 1883, Vol. I at p. 442 :
" During the discussions which took place on the Indian Code of Criminal
Procedure in 1872 some observations were made on the reasons which occasionally
lead native police officers to apply torture to prisoners. An experienced civil officer
observed: * There is a great deal of laziness in it. It is far pleasanter to sit
comfortably in the shade rubbing red pepper into a poor devil's eyes than to go about
in the sun hunting up evidence.' " (Also cited in Stephen, A General View of the
Criminal Law of England, 1890, at p. 188, and the American Supreme Court case
tycNabb v. U.S., 318 U.S. 332.)

unless it was made in the immediate presence of a magistrate. 104

These rules of evidence have been reinforced by the Indian Constitu-
tion by providing in Article 20 (3) that "no person accused of any offence
shall be compelled to be a witness against himself." 105 This provision
against self-incrimination would, in the context of Indian background,
bar the admissibility in a criminal trial of any confession made by an
accused before a police officer, as such a confession would be presumed
to be one made under coercion. 106
In the U.S.A. there is no absolute exclusionary rule either as a
matter of constitutional law under the due process clause or statutory
law which makes a confession before a police officer inadmissible. 107
I n the sphere of federal prosecutions the rule is that any confession
made voluntarily to the police is admissible if the confession was made
during a period of lawful detention of the accused. In U.S. v. Mit-
chell,108 thus, where the accused confessed promptly and spontaneously
on his arrest and was thereafter illegally held for eight days before
arraignment it was held that the subsequent illegal detention did not
make the confession inadmissible. But where as in the McNabb
case, 109 two men suspected of killing a revenue officer were arrested,
detained and interrogated for over two days and held incommunicado
104. However, as an exception to these rules see section 27 of the Indian Evidence
Act. See generally on Sections 25, 26 and 27 Sarkar, Law of Evidence, 1953 p. 236 ff.
105. Other Clauses of Article 20 of the Indian Constitution are:
" (1) No person shall be convicted of any offence except for violation of a
law in force at the time of the commission of the act charged as an
offence, nor be subjected to a penalty greater than that which might
have been inflicted under the law in force at the time of commission
of the offence.
(2) No person shall be prosecuted and punished for the same offence
more than once."
106. I n India it is generally assumed that a self-incriminating statement made by
an accused before a police officer must have been made under compulsion. This
presumption is deeply imbedded in the Indian jurisprudence and is indicative of the
deep distrust which people in India have of the executive authorities.
107. Though the Fifth Amendment of the Constitution of U.S.A. provides a rule
against self-incrimination, the rule has not been interpreted to exclude a confession
made before a police officer. Again, this limited rule is applicable only against
federal authorities and not the state authorities as the U,S. Supreme Court has
refused to incorporate it in the Due Process Clause of the 14th Amendment (See
Adamson v. California 332 U.S. 46 (1947). See also, Twinning v. Mew Jersey 211 U.S. 78
(1908); Palko v. Connecticut 302 U.S. 319 (1937); Hurtado v. California 110 U.S. 516
(1884) and Maxwell v. Dow 176 U.S. 581 (1900).
108. 322 U.S. 65.
109. 318 U.S. 332 (1942).

K. K. NIOAM 1 27
until a confession was secured, the U.S. Supreme Court held that the
circumstances under which federal officers obtained incriminating
statements from the defendants in this case, together with the flagrant
disregard of the Acts of Congress requiring that accused persons arrest-
ed be taken before a U.S. Commissioner or a judicial officer, render-
ed the evidence thus obtained inadmissible and set aside the con-
viction.
The test, therefore, in the United States to set aside any federal
conviction based on a confession would be : whether the confession
was made during periods of unlawful detention. The whole matter
would then turn upon the validity of the detention. In other words,
if a person arrested on probable cause was without any unnecessary
delay arraigned before the Commissioner any confession made by him
to the police during the arrest and before the arraignment would be
admissible. We have seen in the Mallory case, which along with
McMabb and Upshaw came to be severely criticised,110 that where total
arrest of a person had been even less than 24 hours the Supreme Court
in the peculiar circumstances of the case held that the arraignment was
too late, thus setting aside the conviction based on evidence obtained
during arrest which was deemed to be unlawful. The Mallory case is
an instance of the U.S. Supreme Court's determination to see that no
fruits of illegal detention were to be utilised in federal prosecutions
against any accused, and is the high water mark of the law on this
point. It may, however, be suggested that the absolute exclusion of
any voluntary or involuntary confession obtained by the police or any
person in authority except a judicial officer bars any temptation by the
police to resort to ' third degree' methods. Such a rule is perfectly in
keeping with the real due process standards, a standard which has
been a great bulwark in safeguarding the liberty of the American
people.
State prosecution cases In the U.S.A.

In the state prosecution cases the U.S. Supreme Court has been
reluctant to review the convictions based solely on confession made
before the police authorities. The Court, in the interest of keeping
a balanced federal-state relationship, has refused to apply the 14th
110. After the Mallory case there were efforts made in the Congress to revise
the McNabb rule by providing that a confession or other evidence which may be
admissible otherwise should not be excluded solely because of delay in arraign-
ment. However, the efforts failed and the Congress in the 1958 session disapproved
of overruling Mallory and other cases.

Amendment due process clause in imposing any exclusionary rule

even in cases where a confession was sought during a period of illegal
detention. It was thus held by the Supreme Court in Gallegos v. State
of Nebraska, m that, " The rule of the McNabb case . . . is not a
limitation imposed by the Due Process clause . . . . Compliance
with the McNabb rule is required in federal courts by the Supreme
Court through its power of supervision over the procedure and prac-
tices of federal courts in the trial of criminal cases." 112 Rogers v.
Superior Court m provides a glimpse of what the state courts do in such
cases. There the petitioner was arrested for kidnapping a fourteen
year old girl and attempting to extort money from her parents. In
violation of the California law requiring arraignment within 48
hours of arrest the accused was kept for eight days without arraign-
ment and a confession was obtained on the fourth day after arrest.
The state court admitted that the confession was made " during a
period of illegal detention", yet held that " a pre-trial confession is
admissible so far as due process is concerned, if voluntarily made."
Cases of this nature are not reviewed by the U.S. Supreme Court
because of its general " hands off " policy.
However, in a case like Brown v. Mississippi114 where the convic-
tion for murder rested exclusively on confessions obtained from the
defendants as a result of whippings, the U.S. Supreme Court has
shown its readiness to declare such method used to procure confes-
sions as "revolting to the sense of justice " and hold that the state
action resulting in conviction of the accused by use of such confessions
runs contrary to " t h e fundamental principles of liberty and justice
which lie at the base of all our civil and political institutions." 115 In
other words, such tortuous compulsion of testimony is violative of the
requirements of due process clause of the 14th Amendment. 116 This
was a case of physical torture ; sometimes mental torture may prove
far more breaking to the accused than the physical torture. Thus, in
111. 342 U.S. 55

112. Supra, at pp. 63-64.
113. 46 Gal 2d 3 : 291 P. 2d 929 (1955).
114. 297 U.S. 278.
115. Ibid, at p. 286.
116. The Court has applied this rule in few other cases to set aside convic-
tions not only where torture was used but where other methods of coercion were
employed.
See, e.g., Levra v. Devno 347 U.S. 556.

K. K. NIOAM 129
Ashcraft v. Tennessee m where the petitioner was convicted of murder

on the basis of a confession extracted by the police officers after 36
hours of continuous questioning under powerful electric lights, the
majority of the Supreme Court judges recognised that such a situation
was " so inherently coercive that its very existence is irreconcilable
with the possession of mental freedom by a lone suspect against whom
the full coercive force is brought to bear." 118
It follows that though the U.S. Supreme Court has some times
interfered to set aside state convictions where the exercise of brutal
methods by the police was proved but has failed to review the con-
victions based on confessions made before a police officer during
periods of illegal detention. In this respect the law applicable in
federal prosecution cases seems to provide better protection to the
accused against the excesses of the executive authority. Under the
Indian law, which is the same throughout the country, irrespective of
whether coercion was actually exercised or not, or whether confession
was made during the period of legal or illegal detention, the confession
is regarded as inadmissible and cannot be the sole basis of one's con-
viction. 119 It may not be out of place to mention here an extra-
judicial observation made by Justice Douglas of the U.S. Supreme
Court while delivering the Tagore Law Lectures of Calcutta Univer-
sity in July 1955 in this regard. While noting the " meticulous pro-
cedure (under Indian law) for protecting the prisoner against confessions
obtained during the period of his detention by the police", he says :
** Indian Law recognises what American law has not yet conceded
117. 322 U.S. 143.

118. Mr. Justice Black, who delivered the Court's opinion, at p . 154.
119. As observed by the Patna High Court in ap r e- 1 9 5 0 Constitution case of
Emperor v. Mst.Jogia, A.I.R. 1938 Pat. 308 at pp. 311-12 :
" The policy of the Legislature appears to be that any statement in the nature of a
confession made by an accused while under the custody and control of a police officer
should be excluded from evidence. This is no doubt a wholesome policy and this policy
would be defeated if we were to hold that the section 26 of Indian Evidence Act is not
to apply when the arrest by the police officer has been illegal. Whether the arrest is
legal or illegal the mischief which s. 26 is intended to avert remains all the same. In my opinion,
therefore, the alleged confession is inadmissible under section 26, Evidence Act."
(emphasis added). It was pleaded in this case that since the detention was illegal,
it was no detention at all in the eyes of law and any confession made by an
accused during such illegal detention should be inadmissible. There was no doubt
expressed about the inadmissibility of confession made before a police-officer during
lawful detention of an accused. The Court, however, ruled that any confession made
before a police-officer would be inadmissible irrespective of the fact whether the
Retention was legal or illegal.

that police custody has strong effect on confessions, that it is indeed a

form of coercion." 120
m
B. PREVENTIVE DETENTIONS
The most significant fact about preventive detention, as against
ordinary arrests and detentions, is that it is a process by which a per-
son is taken into custody and detained without any trial at any stage.
No offence is proved nor any charge formulated, and the justification
for such detention is suspicion or reasonable probability and not crimi-
nal conviction, which can be warranted only by legal evidence. 122
While the object of punitive detention is to punish a person for what
he has done, the object of preventive detention is to prevent him from
doing something. In India, this power can be exercised only for the
purposes mentioned in List I Entry 9 123 and List III Entry 3 124 of the
Seventh Schedule appended to the Constitution of India. The makers
of the Indian Constitution thought that such a measure was necessary
for an infant Republic. But any such measure in peace times or when
there is no national emergency prevailing means the very negation of
the due process of law. Nothing like this extra-ordinary governmental
power is to be found under the American constitutional system during
normal peace times. 125 However, the Indian constitution does not
120. William O. Douglas, We the Judges: Studies in American and Indian

Constitutional Law from Marshall to Mukherjea, 1956 at p. 372.
121. The purpose here is not to discuss in detail all the aspects of the law
relating to preventive detention in India or the U.S.A. It is only intended to show here
that the constitutional provisions in India afford sufficient protection to one detained
preventively. For a detailed study of law relating to preventive detention specially
from the point of view of procedural safeguards available to detenu the reader is
requested to refer to other works ; in particular, Markose, Judical Review of Administra-
tive Action in India, 141-56 (1956); Jain : ' Preventive Detention in India', 1 Vyavahar
Nirnaya 41 (1952); Tripathi, ' Preventive Detention : The Indian Experience ', 9 Am.
Journal of Comparative Law, 219 (1960); and Vivian Bose, Preventive Detention in
India ', 3 Journal of the International Commission of Jurists&l (spr. 1961).
122- Gopalan v. State of Madras, [1950] S.C.J. 174 : [1950] S.C.R. 88.
123. Items in this Entry are Defence, Foreign Affairs and Security of India, and
since these fall in List I the federal government has the exclusive power to legislate
with respect to these matters.
124. This mentions Security of a State, maintenance of Public Order or of Supplies
and Services essential to the community. With respect to these items both the federal
and state governments have power to legislate since these items fall in the Concurrent
List (List III). However, in view of the federal law, Preventive Dentention Act,
1950, the states have not legislated.
125. Compare, however, the story of detention of over 110,000 U.S. citizens and
resident aliens of Japanese ancestry in the Spring of 1942 during the World War II.
For a general survey of this episode from the constitutional point of view, see, Broek,

K. K. NIG AM 131
invest the government with an arbitrary power with regard to preven-

tive detention.
In the first place, it may be recalled that^Article 21 of the Cons-
titution remains a limitation on the executive power of the government.
No detention can be made by an executive officer, unless he is autho-
rised by law in this regard. The Preventive Detention Act, 1950, 126 as
amended, authorises the Federal or State Government 127 to order
detention of any person, if satisfied that the security or defence of
India, security of a State or maintenance of public order or of supplies
and essential services was in danger or with respect to any foreigner if
regulation of his continued presence or his expulsion from the country
became necessary. Power has also been given to all District
Magistrates and some specific additional District Magistrates and
Commissioners oi jtoar mg metropolitan cities to exercise this
power of detention only where there is danger to security of State
or to maintenance of public order or of supplies and services essential
to the community. m In any case of detention the provisions of the
Preventive Detention Act, 1950, have to be followed strictly by the
authority ordering the detention l'A9 and any malafide exercise of autho-
rity would be struck down by the courts. liiu
The Constitution provides in Article 22(5) that in any case of
detention the authority making the order of detention " 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." This procedure is a
safeguard against administrative as well as legislative powers of the
State and the Supreme Court of India has given strict enforcement to
Barnhart and Matson, Prejudice, War and the Constitution (University of California
Press, 1954) pp. 211-321. In particular see Hirabayashi v. U.S. 320 U.S. 81 (1943);
Aorematsu v. U.S. 323 U.S. 215 (1944;; and Export* Endo v. U.S. 323 U.S. 283 (1944). See
also, Charles . Fairman, * The Law of Martial Rule and the National Emergency ',
55 Har. L. Rev. 1253 (1942); Harrop A. Freeman, * Genesis, Exodus, Leviticus,
Geneology, Evacuation and Law', 28 Cornell Law Quart. 414 (1943); Eugene
v. Rostow, 'The Japanese American Cases'A Disaster, 54 Tale Law Journal 489
(1945).
126. See India Code Vol. I l l Part IV p. 673 ; Act IV of 1950.
ill. Tnis means that action has to be taken by the highest officers of the
governments concerned in the name of the President of India or the Governor of a
state, as the case may be, and not by local or district officers of the government
concerned.
128. See section 3 of the Preventive Detenion Act, 1950.
129. See Makhan Singh v. State of Punjab, [1951] S.CJ. 835.
430. Ujagar Singh v. Slate of Punjab, [1952J S.CJ. 521

this provision to protect the individual from arbitrary exercise of

governmental power. As one critic observed. 13i
*' ...the provisions of Article 22 regarding preventive detention
in, and of themselves, provide a substantial deviation from the
American system of constitutional protection of individual rights
safeguarded by the due process and other clauses; although even
there...the Supreme Court of India has given a strict construction
to the provisions of Article 22somewhat in the spirit of the due /
process clause protection of individual rightsto ensure that the
measures taken by the State for its security do not infringe too
deeply or unnecessarily on the freedom of the individual." 16'2
The provisions of clause (5) of Article 22 have been explained by
the Indian Supreme Court in these words :
" That clause requires two things to be done The detained
person has to be furnished with ' the grounds on which the order
has been made ' and which has to be done ' as soon as may be \
He has also to be afforded ' the earliest possible opportunity of
making a representation against the order' While there is a
connection between the obligation on the part of the detaining
authority to furnish grounds and the right given to the detained
person to have the earliest opportunity to make the representation,
the test to be applied in respect of the contents of the grounds for
the two purposes is quite different. For1 the first test is whether it
is sufficient to satisfy the authority and for the second, whether it
is sufficient to enable the detained person to make the represent-
tion at the earliest opportunity." liS6
The courts have refused to enquire whether the grounds furnished were
sufficient for the executive authority to conclude if the detention of
131. Lawrence F. Ebb, *' Constitutional Framework for Administrative Law and
Relationship of Bill of Rights to Administrative Proceedings"Journal ofthe Indian
Law Institute, Vol. 1, p . 25y ^1959).
132. Similarly, Proiessor Nathaniel L. Nathanson of the Northwestern Law
School and Shri S.M. Sikri, Advocate-General of Punjab in the course of a seminar
on ' Public Law Problems in India ' held at the Stanford Law School in 1957
observed:
" . . . it is particularly noteworthy that the Supreme Court of India has
exercised considerable control over the administration of the Preventive Detention Act
by insisting on meticulous observation of the requirement of notice embodied in
Article 2 2 ( 5 ; / ' (See Public Law Problems in India, Staniord Pub.).
133. State of Bombay v. Atma Ram Vaidya, [1951] S.C.J. 208.

K. K. NIGAM 133
the person was necessary or not, 13i or whether the grounds supplied
were correct or false.135 But they would certainly inquire if the grounds
that have been furnished would enable the detenue to make a representa-
tion. What is required ,is that the ground of detention must be
furnished and adequate opportunity to make representations be given.
Where the grounds furnished are in any way vague or ambiguous or in
any way take away or jeopardize the detenue's right to exercise his oppor-
tunity of making a representation, the Supreme Court has struck down
the detention as invalid. Courts in India invalidate the preventive
detentions mostly through the exercise of this power.
In Dr. Ram Krishna Bharadwaj v. State of Delhila6 it was argued that
in a case where one or more of the grounds supplied are vague the
petitioner is handicapped in making an adequate representation as re-
gards that grounds and his representation, even if effective in respect of
the other grounds, may fail to carry conviction as regards the ground
which is vague and that this might result in the detention being con-
firmed. The Supreme Court held :
" The question however is not whether the petitioner will in
fact be prejudicially affected in the matter of securing his release
by his representation, but whether his constitutional safeguard has
been infringed. Preventive detention is a serious invasion of perso-
nal liberty and such meagre safeguards as the Constitution has
provided against the improper exercise of power must be jealously
watched and enforced by the Court We are of the opinion that
this constitutional requirement must be satisfied with respect to
each of the grounds communicated to the person detained. 3 ' 137
The holding of this case was that the detenue is entitled to have parti-
culars ' as full and adequate as the circumstances permit' so as to
enable him to make a representation against his detention and that
the sufficiency of the grounds furnished is a justiciable matter, the test
being whether the detenue can make an adequate representation.
In a recent case of Dwarkadas v. State of Jammu & Kashmir,1**
similarly, where the order of detention was based on the ground that
the petitioner was engaged in unlawful smuggling activities relating
134. Ibid.
135. Ujagar Singh v. State of Punjab, [1952] S.CJ. 521; A.I.R. 1952 S.C. 350;
Shibban Lai v. U.P., AI.R. 1954 S.C. 179 : [1954] S.CJ. 74.
136. [1953J S.G.J. 444.
137. Ibid., at p. 447.
138. A.I.R. 1957 S.C. 164.

to three commodities cloth, zari, and mercury, of which first two were
found to be not essential commodities and there was no material before
the Court to showr that the smuggling attributed to the petitioner was
substantially only of mercury and that the smuggling as regards the
other two commodities was of an inconsequential nature, the Supreme
Court held that the order of detention was bad and must be quashed.
The Court observed:
" Where power is vest in a statutory authority to deprive the
liberty of a subject on its subjective satisfaction with respect of
specified matters, if that satisfaction is stated to be based on a
number of grounds or for a variety of reasons, all taken together,
and if some out of them are found to be non-existent or irrelevant,
the very exercise of that power is bad." i a j
The constitutional procedural safeguard provided in Art. 22(5), then,
provides significant protection to the individual against the oppressive
power of the government and the courts in India have enforced it as
strictly as possible. The fact, however, remains that the preventive
detention law is a scar on the Indian constitutional system. But as
this power of the government has bcon sparingly used 14u against only
either the suspected traitors of the country or other anti-social elements
like hoarders or black-marketeers, and as the courts have shown
their readiness to strike down of such detention orders on the slightest
opportunity the measure has at no time been any menace to the in-
dividual liberty. May be, considering the overall political and econo-
mic conditions in India at present, any such measure may even be a
necessity for the self-preservation of the country, but tor whatever
duration any such power may exist in the government, it is necessary
that there should be procedural safeguards to protect the individual
liberty from governmental usurpation. Article 2^(5) serves this
purpose.
k
PERSONAL LIBERTY 'ITS RESTRICTED M E A N I N G
I N A R T I C L E 21 : C O N C L U S I O N
Thus far we have been discussing the procedural safeguards
provided under the Indian constitutional system against deprivation
of personal liberty in a restricted sense, as this term is understood in the
context of Articles 21 and 22. These Articles concern only with the
139. Ibid., at p . 168.
140. For a statistics of the number of persons arrested under the Preventive
Dentention Act from year 1950 to I960, see Vivian Bose, Preventive Detention
in India, 3 Journal of the International Commission of Jurists 87, 95-96 (1961).

K. K. NIOAM 135
protection of the physical body of a person, its protection from being

seized, molested or in any way done away with. As Mr. Chief Justice
Kania of the Supreme Court said in the Gopalan case, 141 " c Personal
liberty ' [in Article 21] would mean liberty of the physical body ".
Articles 21 and 22 thus protect one's personal liberty when its depri-
vation is complete by capturing the body of the person by arrest and
detention and only when it is for punitive or preventive purposes. 142
However, the term ' liberty ' or ' personal liberty ' generally is not
understood in this restricted sense. It includes a broad range of con-
duct which the individual is free to pursue; for instance, one's liberty
to speak, write or publish or to hold meetings and discussions, to move
freely within the country, to worship and have freedom in respect of
religious faith, etc., some of which are regarded as fundamental for
human existence and deserve special protection because of the tendency
in the Governments to try to usurp them. The Constitution of the
U. S. A. mentions a few of them in the Bill of Rights and others are
protected by the Due Process clause. In the Indian Constitution Articl-
es 21 and 22 protect the liberty to be free from physical restraint, and
protection of other freedoms is provided in other Articles of the Cons-
titution like Arts. 14, 19 e t c , and it is through these Articles that the
due process concepts have found their way into the Indian Constitu-
tional system much more than what we have already noticed under
Articles 21 and 22 discussed above. Therefore, for a complete study
of the availability of procedural guarantees in the Indian Constitution
comparable to those available under the American Constitution under
the Due Process clause one should refer to these other Articles of the
Indian Constitution and the cases decided thereunder.
141. [1950] S.CJ. 174 at p. 183.

142. See, Allan Gledhill, Fundamental Right in India, 1955 p. 82 ff. ; see also,
Basu, D.D., Commentary on the Indian Constitution, 3rd ed. 1955, Vol. I, pp. 279-80.

Comparative study of procedural guarantees against deprivation of liberty in the US and India

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DUE PROCESS OF LAW: A COMPARATIVE STUDY OF

PROCEDURAL GUARANTEES AGAINST DEPRIVATION

* Lecturer in Law, University of Delhi, Delhi; The author gratefully acknow-

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due process requirement is a limitation on both executive and legis-

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" No person shall be deprived of his life, or liberty without due

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This historical background of the framing of the Indian Constitu-

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of the Constitution. Comparing the provisions of Article 21 with

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Arttcle 21 and the executive arbitrariness

the protection of individual liberty. Many facets of 'personal liberty*, as this is

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often emphasised that before a person is deprived of his personal

28. [1951] S.C.J. 835 at p. 837.

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accused to further custody till the 11th March... In the habeas

Personal liberty and the limitations on the legislative (as well as

33. [1953] S.G J . 326 at p. 327.

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down certain procedural safeguards whenever a person is deprived of

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case the validity of the detention of a recovered Muslim girl, under

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personal liberty is the result of the reasonable exercise of a beneficial

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In Purshottam Govindji v. B. M. Desai,46 another case of arrest foi

46. [1959] S.C.J. 75.

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Amendment Act, 1932, without giving any particulars of the alleged

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59. Supra, at p. 327.

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Amendment VI of the American Constitution lays down expressly

63. 304 U.S. 458 (1938).

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provide a state counsel to an indigent person in a capital case the

68. Ibid., at p. 329.

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accused as of right to be defended by a pleader should be construed to

73. A.I.R. 1930 Lahore 945.

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by him immediately after arrest. During detention the petitioner was

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justice ' T h e b r o a d rule sought here a n d in Crooker would require

85. As stated by a Committee headed by Prof. Zechariah Chafee :

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part of the pretrial proceedings, provided that he is so prejudiced

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*' Any officer making an arrest under a warrant issued upon a

90. See supra note 36.

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92. Ibid, at p. 637.

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where a person was arrested on suspicion and held for 30 hours

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reprehensible practices known as the ' third degree * which, though

100. Ibid., at pp. 343-44.