(1) 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 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 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.

 

(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.

 

(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless—

 

(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:

Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or

(b) such person is detained in accordance with the provisions of any law made by Parliament under subclauses (a) and (b) of clause (7).

 

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

 

(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.

 

(7) Parliament may by law prescribe—


(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);

(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and

(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).

Debate Summary

Moved in the Constituent Assembly on 15th September 1949 (not part of Draft Constitution, 1948)

Protection against certain arrests and detentions.

'15A. (1) 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 right to consult 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 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.

(3) Nothing in this article shall apply-

(a) to any person who for the time being is an enemy alien; or

(b) to any person who is arrested under any law providing for preventive detention;

Provided that nothing in sub-clause (b) of clause (3) of this article shall permit the detention of a person for a longer period than three months unless-

(a) an Advisory Board consisting of persons who are or have been or are qualified to be appointed as judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention, or

(b) such person is detained in accordance with the provisions of any law made by Parliament under clause (4) of this article.

 (4) Parliament may by law prescribe the circumstances under which and the class or classes of cases in which a person who is arrested under any law providing for preventive detention may be detained for a period longer than three months and also the maximum period for which any such person may be so detained'."

Draft Article 15A  was debated in the Constituent Assembly on 15th and 16th September 1949.

The Draft Article was introduced to compensate for the dropping of ‘due process’ in Draft Article 15 (Article 21, Constitution of India, 19509 that had generated criticism inside and outside the Assembly. It was said that the Draft Article raised the principles of justice contained in the Criminal Procedure Code to constitutional guarantees. This would protect individual liberty against executive or legislative action. Most Assembly members were not convinced, the Draft Article attracted a lot of criticism, and many amendments were moved.

Some of the key points raised by the critics on the included: first, the Draft Article did not substantively align with ‘due process’, second, it took away existing safeguards that were in the Criminal Procedure Code, and third, the processes mentioned were vague – especially related to the role of the advisory board. Underlying the Assembly members’ interventions was a common concern that the Draft Article did not do enough to protect the personal liberty of individuals against the executive and legislatures.

There were some members, mainly those from the Assembly’s Drafting Committee which drew up the Draft Article, who felt that most of the criticism was unfounded. However, some of the points raised were agreed to, and the corresponding amendments were accepted.

In the end, the Assembly adopted the Draft Article with amendments.