Article 22(3)(b) of the Constitution of India which permits preventive detention is only an exception to Article 21 of the Constitution- Explanation

An exception is an exception, and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21 of the Constitution. FUNDAMENTAL RIGHTS are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer and without a trial. As observed in R. v. Secy. of State for the Home Dept., Ex Parte Stafford (1998) 1 WLR 503 (CA):

The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law.

16. Article 22, hence, cannot be read in isolation but must be read as an exception to Article 21. An exception can apply only in rare and exceptional cases, and it cannot override the main rule.

17. Article 21 is the most important of the FUNDAMENTAL RIGHTS guaranteed by the Constitution of India. Liberty of a citizen is a most important right won by our forefathers after long, historical, arduous struggles. Our Founding Fathers realized its value because they had seen during the freedom struggle civil liberties of our countrymen being trampled upon by foreigners, and that is why they were determined that the right to individual liberty would be placed on the highest pedestal along with the right to life as the basic right of the people of India.

18. Right to liberty guaranteed by Article 21 implies that before a person is imprisoned a trial must ordinarily be held giving him full opportunity of hearing, and that too through a lawyer, because a layman would not be able to properly defend himself except through a lawyer.

19. The importance of a lawyer to enable a person to properly defend himself has been elaborately explained by this Court in A.S. Mohd. Rafi v. State of Tamilnadu, AIR 2011 SC 308, and in Md. Sukur Ali v. State of Assam JT 2011 (2) SC 527. As observed by Mr Justice Sutherland of the U.S. Supreme Court in Powell v. Alabama 287 U.S. 45 (1932) “Even the intelligent and educated layman has small and sometimes no skill in the science of law”, and hence, without a lawyer he may be convicted though he is innocent.

20. Article 22(1) of the Constitution makes it a FUNDAMENTAL right of a person detained to consult and be defended by a lawyer of his choice. But Article 22(3) specifically excludes the applicability of Clause (1) of Article 22 to cases of preventive detention. Therefore, we must confine the power of preventive detention to very narrow limits, otherwise the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long, arduous, historical struggles, will become nugatory.

21. In State of Maharashtra and Ors. v. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613 (para 23) this Court observed:

…Personal liberty is a precious right. So did the Founding Fathers believe because, while their first object was to give unto the people a Constitution whereby a government was established, their second object, equally important, was to protect the people against the government. That is why, while conferring extensive powers on the government like the power to declare an emergency, the power to suspend the enforcement of FUNDAMENTAL RIGHTS or the power to issue ordinances, they assured to the people a Bill of RIGHTS by Part III of the Constitution, protecting against executive and legislative despotism those human RIGHTS which they regarded as FUNDAMENTAL. The imperative necessity to protect these RIGHTS is a lesson taught by all history and all human experience. Our Constitution makers had lived through bitter years and seen an alien Government trample upon human RIGHTS which the country had fought hard to preserve. They believed like Jefferson that “an elective despotism was not the Government we fought for”. And, therefore, while arming the Government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that those powers were not abused to mutilate the liberties of the people. (vide A.K. Roy and Ors. v. Union of India (UOI) and Ors., (1982) 1 SCC 271, and Attorney General for India v. Amratlal Prajivandas, (1994) 5 SCC 54.

(Emphasis supplied)

22. In the Constitution Bench decision of this Court in M. Nagaraj and Ors. v. Union of India and Ors., (2006) 8 SCC 212, (para 20) this Court observed:

It is a fallacy to regard FUNDAMENTAL RIGHTS as a gift from the State to its citizens. Individuals possess basic human RIGHTS independently of any Constitution by reason of the basic fact that they are members of the human race.

23. In the 9 Judge Constitution Bench decision of this Court in I.R. Coelho (dead) by L.Rs. v. State of T.N., (2007) 2 SCC 1 (vide paragraphs 109 and 49), this Court observed:

It is necessary to always bear in mind that FUNDAMENTAL RIGHTS have been considered to be the heart and soul of the Constitution….. FUNDAMENTAL RIGHTS occupy a unique place in the lives of civilized societies and have been described in judgments as “transcendental”, “inalienable”, and primordial.

24. In our opinion, Article 22(3)(b) cannot be read in isolation, but must be read along with Articles 19 and 21, vide Constitution Bench decision of this Court in A.K. Roy and Ors. v. Union of India (UOI) and Ors., (1982) 1 SCC 271 (para 70).

25. It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in substance a detention order of one year (or any other period) is a punishment of one year’s imprisonment. What difference is it to the detenu whether his imprisonment is called preventive or punitive.[Rekha Versus State of Tamil Nadu through Sec. to Govt. and Another (2011) 4 SCALE 387 : JT 2011 (4) SC 392 : (2011) 5 SCC 244 ]