It is known to all that our Constitution, in its original form, granted seven rights to freedom. As Article 19 of the Constitution declared, the citizens shall have the right (1) to freedom of speech and expression; (2) to assemble peaceably and without arms; (3) to form association or Unions; (4) to move freely throughout the territory of India; (5) to reside and settle in any part of India; (6) to acquire, hold and dispose of property and (7) to practice any profession or to carry on any occupation, trade or business. However, in 1978, the right to property was deleted from this Article by the 44th amendment of the Constitution. As such, now we have, in total, six freedoms in Article 19.

But, in addition, we have some ‘Personal Liberty’ as well. This is really a novel and unique feature of our Constitution. The word ‘liberty’ is qualified by the term ‘personal’ for a significant reason. It is liberty of a different type. Art. 20 (1) declares that 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 subject to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

It simply means that a person can be punished only according to the existing law. In other words, the Constitution has, as in America, forbidden the enactment of ‘ex post facto’ law by which an accused can be given a greater punishment than what was prescribed earlier.

As such, we have rejected the British model in which Parliament, as a ‘sovereign’ body, can enact a new law to inflict upon the accused a greater punishment than that was permissible when the crime was committed.

Thus, our Constitution expressly guarantees that a new law cannot be applicable to an offender who committed an offence before its enactment.

Then, Article 20 (2) has mentioned that no person shall be prosecuted and punished for the same offence more than once. Significantly, the original provision was as follows: ‘No person shall be punished for the same offence twice.’ The change in composition was really necessary so that departmental action can be taken against a Government staff even after his conviction by a court of law. As such, we have accepted both the British and American systems of jurisprudence in this matter.

Article 20 (3) has declared that no person accused of an offence shall be compelled to be a witness against himself. In this regard, we have, however, accepted both the British and American systems. It implies that every accused has the inherent right to plead not guilty and he can, by no means, be compelled to furnish any evidence which goes against him. Of course, it does not, in any way, prohibit a police search in his house and seizure of any offensive document from his custody.

Then comes Article 21. It states ‘no person shall be deprived of his life and personal liberty except according to procedure established by law.’ The Article has been framed by following Article 31 of the Japanese Constitution. Of course, there is an almost similar provision in America which guarantees that ‘no person shall be deprived of his life and personal liberty without due process of law.’ The difference in words in this provision is very significant.

According to Chief Justice Kania, in our cases the clause is ‘more defined and precise’ – (Gopalan V. Madras 1950). This is why, our Judges can only see whether or not a law has been properly enacted. But, in America, the Supreme Court can go further and can even examine whether a law in question is itself good or had. If it seems to be undemocratic or it goes against the concept of ‘natural justice’, it is void. According to Dr DC Rout, it is ‘one of the important Articles’ in the Constitution of India – (Democratic Constitution of India, p. 91).

However, this Article is a significant safeguard only against the executive tyranny on the personal liberty of the individual, but never against a legislative encroachment on it. According to Dr HH Das, it has considerably weakened the safeguards of personal liberty because the power of the legislature in prescribing any procedure has remained widely enough – (India: Democratic Government and Politics, p. 121).

Article 22 (1) states that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the serene right to consult and to be defended by a legal practitioner of his choice. And clause (2) provides that every person who is arrested and detained shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.

Thus, this Article guarantees the following privileges of an accused – (1) he has the right to know the cause of his arrest; (2) he can consult with a lawyer of his own choice; (3) he must be produced before a trying Magistrate and (4) the detention beyond the said period is possible only by an order of a Magistrate – (Hansmukh vs. Gujarat, 1981).

But, Article 22 (3) states that such privileges are not available to an alien – enemy and a person who is arrested under a preventive detention law. An alien-enemy may be a snake in the grass. However, detention of a citizen under such law seems to be highly undemocratic, but the maximum period of such detention cannot be more than three months without the approval of an Advisory Board consisting of some chosen Judges – (Dr SC Kashyap – Our Constitution, p. 120).

Moreover, the safety and security of the country can be alarmingly destroyed by suspicious citizens or enemy-agents and, hence, such special provisions are really necessary in India. An open trial and presentation of secret documents may badly damage the public morale. So, according to Dr MV Pylee, ‘it should remain as an ugly blot on the fair face of our democracy’ – (An Introduction to the Constitution of India, p. 117). As a cardinal truth, the Government should have the necessary power to fight against terrorism and subversion by curtailing the liberty of some suspicious persons for a temporary period.

The writer is a Former Reader, New Alipore College, Kolkata.