RESEARCH PAPER

“Freedom from Arbitrary Detention is a Fundamental Human Right”

WHAT IS DETENTION?
Detention is the process when a state, government or citizen lawfully holds a person by removing their freedom of liberty at that time. This can be due to (pending) criminal charges being raised against the individual as part of a prosecution or to protect a person or property. Being detained does not always result in being taken to a particular area (generally called a detention centre), either for interrogation, or as punishment for a crime (prison)
The term can also be used in reference to the holding of property, for the same reasons. The process of detainment may or may not have been preceded or followed with an arrest. The prisoners in Guantánamo Bay are for example referred to as "detainees".
Detainee is a term used by certain governments and their military to refer to individuals held in custody, such as those it does not classify and treat as either prisoners of war or suspects in criminal cases. It is used to refer to "any person captured or otherwise detained by an armed force."[1] More generally, it is "someone held in custody."[2]
Article 9 of the Universal Declaration of Human Rights states that, "No one shall be subjected to arbitrary arrest, detention or exile." In wars between nations, detainees are referenced in the Fourth Geneva Convention.
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Indefinite Detention:
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Indefinite detention of an individual occurs frequently in wartime under the laws of war. This has been applied notably by the United States after the September 11, 2001 attacks. Before the Combatant Status Review Tribunals, created for reviewing the status of the Guantanamo detainees, the United States has argued that the United States is engaged in a legally cognizable armed conflict to which the laws of war apply, and that it therefore may hold captured al Qaeda and Taliban operatives throughout the duration of that conflict, without granting them a criminal trial.
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The U.S. military regulates treatment of detainees in the manual Military Police: Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, last revised in 1997.
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The term "unlawful combatant" came into public awareness during and after the War in Afghanistan (2001–present), as the U.S. detained members of the Taliban and al-Qaedacaptured in that war, and determined them to be unlawful combatants. This had generated considerable debate around the globe.[3] The U.S. government refers to these captured enemy combatants as "detainees" because they did not qualify as prisoners of war under the definition found in the Geneva Conventions.
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Detention is defined as restriction on freedom of movement by governmental authorities. Governments are increasingly detaining refugees, asylum seekers and migrants in some or more of the following situations: * Upon entry to the country * Pending a final asylum decision or other requests to remain in the country
Hundreds of thousands of people are held in administrative detention centres and closed camps around the world with: * Conditions in most countries falling below international human rights standards * Restrictions on access to asylum for people who need protection from serious human rights abuses, and * Serious protection problems for refugees within closed refugee camps.
Men, women and children, the elderly and disabled are held against their will in removal centres, immigration detention centres, jails, prisons, police stations, airports, hotels, ships and containers pending a final decision in their cases or pending a removal from the country that may take months or years to effect, often in overcrowded and unhygienic conditions. Several governments around the world host large refugee populations and often place significant limits on the movement of the resident refugees.
Under international law, governments do have the right to protect their national sovereignty. But also enshrined in international law is the right to seek and enjoy asylum. And international laws protect against arbitrary and unlawful detention. Governments should, in compliance with international and regional human rights standards, only detain in circumstances where alternatives have been assessed as not sufficient, only as a last resort and for the shortest possible period of time.
WHO IS DETAINED AND WHERE?
Most governments detain refugees, asylum seekers and migrants in some or more of the following situations: * upon entry to the country; * pending a final decision in their applications for asylum or other requests to remain in the country; * pending their final removal when they are no longer permitted to remain in the country.
Men, women and children, the elderly and disabled – the great majority of whom have committed no crime – are held against their will in removal centres, immigration detention centres, jails, prisons, police stations, airports, hotels, ships and containers pending a final decision in their cases or pending a removal from the country that may take months or years to effect due to bureaucratic problems.
Several governments around the world host large refugee populations and often place significant limits on movement of the resident refugees. For example, in many countries refugees must obtain a permit to leave a camp; they can only travel a certain distance and for a certain time period outside of the camp; and, if they fail to comply with the terms of the permit, they risk arrest and imprisonment, sometimes for years, despite the fact that they are refugees. They may be required to live in these camps without the right to move for years. In fact, some children and grandchildren are born in these camps without ever having the right to leave them.
Refugees, forced to flee from countries where they initially sought safety, are often jailed, sometimes indefinitely, in the new country of “refuge” for so-called “irregular secondary movement”.
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FORMS OF DETENTION
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Generally confined within a narrowly bounded or restricted location Where freedom of movement is substantially curtailed including:
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PRISON:
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A prison (from Old French prisoun) is a place in which people are physically confined and usually deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime. Other terms used are penitentiary, correctional facility, remand centre, detention centre, and jail or gaol. In some legal systems some of these terms have distinct meanings. In the United States the difference between jails or detention facilities and prisons is primarily a function of the length of incarceration. Jails and detention facilities, under city or county jurisdiction, typically hold offenders awaiting trial or serving short sentences. Correctional facilities and prisons are more often run by the state or federal governments and house offenders serving long-term sentences.[2] Similarly Ontario, Canada, jails and detention centres are used to hold remanded prisoners awaiting trial, sentencing or other court proceedings. Jails are typically small facilities originally designed to serve the local community and have been gradually replaced with large regional detention centres. Jails and detention centres are run by the provincial government. Once an offender is sentenced, he or she would be transferred to either a provincial correctional centre (if the sentence is less than two years) or a federal penitentiary (if the sentence is two years or more).
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A criminal suspect who has been charged with or is likely to be charged with criminal offense may be held on remand in prison if he or she is denied or unable to meet conditions of bail, or is unable or unwilling to post bail. A criminal defendant may also be held in prison while awaiting trial or a trial verdict. If found guilty, a defendant will be convicted and may receive a custodial sentence requiring imprisonment.
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As well as convicted or suspected criminals, prisons may be used for internment of those not charged with a crime. Prisons may also be used as a tool of political repression to detain political prisoners, prisoners of conscience, and "enemies of the state", particularly by authoritarian regimes. In times of war or conflict, prisoners of war may also be detained in prisons. A prison system is the organizational arrangement of the provision and operation of prisons.
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Police Stations:
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The police have the power to detain you for questioning if they suspect you have committed an imprisonable offence. During a detention you can be moved from the police station to any other place. The police also have the power to search you, take fingerprints, palm prints and other impressions and, where necessary, use reasonable force to ensure you comply with these requirements. The police can also take photographs. If either an intimate (strip) search or invasive internal search is required, there are rules governing each of these searches and a special warrant is required.
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If you have been detained by the police, you have the right to have a solicitor and one other person informed of your detention and whereabouts. You do not have the right to make a telephone call personally, the police will do this for you. The police must do this without delay unless there is a good reason not to, for example, that it might lead to the destruction of evidence or the warning of accomplices. There is no fixed time limit but any delay should be no longer than is necessary to investigate or prevent the crime or apprehend offenders.
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If a young person under 16 is detained by the police, the police should tell their parents or guardians as soon as possible and may allow a parent or guardian access to the young person at the police station. The police can refuse access if there is a suspicion that the parent or guardian is involved in the crime or offence or if it is in the interests of the child to delay access.
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Closed camps:
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The Random House Dictionary defines the term "concentration camp" as: "a guarded compound for the detention or imprisonment of aliens, members of ethnic minorities, political opponents, etc.", and, the American Heritage Dictionary defines it as: "A camp where civilians, enemy aliens, political prisoners, and sometimes prisoners of war are detained and confined, typically under harsh conditions."
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Earliest usage and origins of the term
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The Polish historian Władysław Konopczyński has suggested the first concentration camps were created in Poland in the 18th century, during the Bar Confederation rebellion, when the Russian Empire established three concentration camps for Polish rebel captives awaiting deportation to Siberia. The earliest of these camps may have been those set up in the United States for Cherokee and other Native Americans in the 1830s; however, the term originated in the reconcentrados (reconcentration camps) set up by the Spanish military in Cuba during the Ten Years' War (1868–1878) and by the United States during the Philippine–American War (1899–1902). The English term "concentration camp" was used more widely during the Second Boer War (1899–1902), when the British operated such camps in South Africa for interning Boers. They built a total of 45 tented camps built for Boer internees and 64 for black Africans. Of the 28,000 Boer men captured as prisoners of war, the British sent 25,630 overseas. The vast majority of Boers remaining in the local camps were women and children. The Germans used concentration camps in German South-West Africa during the Herero genocide between 1904 and 1907. Thecamp at Shark Island, Namibia was of the nature of an extermination camp, arguably the world's first.
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Shift in meaning
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During the 20th century, the arbitrary internment of civilians by the state reached a climax with Nazi concentration camps (1933–1945). As a result, the term "concentration camp" carries many of the connotations of "death camp" or "extermination camp", and is sometimes used synonymously. But Nazi concentration camps were not necessarily death camps. For example, they used some camps primarily to house slave labor: the inmates were exploited rather than killed, although many were worked to death or killed for refusing to work.
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Detention facilities or airport transit zones-immigration detention:
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Immigration-related detention is defined as “the deprivation of liberty of non-citizens because of their status.” A few things to note about this definition: First, it does not distinguish between asylum seekers, irregular migrants, stateless people, or refugees. Instead, it intentionally fits all of these categories into a single box—“non-citizen.” To some extent, this definition is contrary to efforts by states and international bodies to analytically separate asylum from other forms of migration. Further, in some parts of the world—notably the European Union—asylum seekers are segregated from other migrants with respect to their places of housing or confinement: asylum seekers are supposed to be housed in “open” “reception centres,” while undocumented migrants are confined in “closed” detention centres.
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However, in many countries, there is little effort to separate asylum seekers from irregular migrants within detention systems. Also, “reception centres” and so-called shelters can sometimes resemble detention centres in all but name (Gallagher and Pearson 2010). Thus, while there is a clear rationale for assessing differences in the legal regimes that treat asylum seekers and undocumented migrants, when analyzing detention systems it is preferable to view all non-citizens as a single cohort. Such an approach is better suited to capture the range of facilities used to detain people on status-related charges or procedures. It also provides a pithy analytical category for encompassing the broad range of people subject to this form of deprivation of liberty.
Second, this definition encompasses both criminal incarceration and administrative detention. Human rights and scholarly discourses on the subject of immigration-related detention tend to focus on administrative detention because in most countries, immigration violations are considered “civil” rather than criminal matters, and thus detention for status-related reasons usually takes the form of an administrative process. However, a narrow focus on administrative detention fails to capture two important aspects of this phenomenon: (1) Many countries across the globe charge irregular immigrants and asylum seekers with criminal violations stemming from their status (notable examples include Lebanon and Malaysia; and (2) there has been a noticeable trend in criminalising breaches of immigration laws in many key destination countries—such as the United States and Italy—leading to the increasing criminal incarceration of noncitizens for status-related violations. As a result, when assessing detention regimes used for confining people on status-related violations, it is critical to take into account facilities that are used to incarcerate people on statusrelated criminal convictions, otherwise researchers risk overlooking an increasingly important form of this kind of detention.
This definition also utilizes a carefully circumscribed concept of “deprivation of liberty.” Some scholars have sought to define detention broadly to include “restriction of movement or travel within a territory in which an alien finds him or herself” (Helton 1989). This concept, however, is patently too broad to facilitate a sharp analytical focus on the realties detainees face behind bars. On the other hand, some states have sought to apply an extremely minimalist notion of deprivation of liberty. Germany’s Constitutional Court, for example, ruled in 1996 that the confinement of asylum seekers for nearly three weeks in secure airport facilities did not constitute deprivation of liberty (Goodwill-Gill, 2001: 25). Also, Turkey has refused to acknowledge, despite successive legal rulings against it, that its systematic confinement of irregular migrants in socalled guesthouses amounts to deprivation of liberty (see European Court of Human Rights, Abdolkhani and Karimnia v. Turkey and Z.N.S. v. Turkey).
Similarly, the European Court of Human Rights (ECtHR), in the case of Amuur v. France (1996), considered that the confinement of a group of Syrian asylum seekers in an airport transit zone and hotel for 20 days might be a mere “restriction on liberty,” arguing: “Holding aliens in the international zone does indeed involve a restriction upon liberty, but one which is not in every respect comparable to that which obtains in centres for the detention of aliens pending deportation” (Amuur v. France 1996: para 43). The court noted that should such a “holding” be “prolonged excessively,” it could convert the situation into one of “deprivation of liberty.”
In contrast to these rulings, the Working Group on Arbitrary Detention considers deprivation of liberty to include “deprivation of freedom either before, during, or after the trial (a term of imprisonment imposed following conviction), as well as deprivation of freedom in the absence of any kind of trial (administrative detention) … [and] measures of house arrest and rehabilitation through labour, when they are accompanied by serious restrictions on liberty of movement” (WGAD 2000). Based on the Working Group’s more inclusive characterization—and in contrast to the exceedingly broad definitions used by some scholars—this paper defines deprivation of liberty as “forcibly-imposed confinement within an enclosed space for any length of time.” Put another way, it means being locked up against one’s will.
This formulation of deprivation of liberty has two key components: time and voluntariness. Regarding time, ECtHR case law appears to support the notion that there is no minimum amount of time during which custody should not be considered deprivation of liberty. In Gillan and Quinton v United Kingdom(2009), which dealt with the stop and search powers of police, the court found that “although the length of time during which each applicant was stopped and search did not in either case exceed 30 minutes, during this period the applicants were entirely deprived of any freedom of movement obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges. This element of coercion is indicative of a deprivation of liberty within the meaning of Article 5 § 1 [of the European Convention on Human Rights].”
With respect to voluntariness (or lack thereof), some jurists have questioned whether coercion is relevant in cases concerning the administrative detention of migrants and asylum seekers who can be released from confinement if they choose to return to their countries. But as one legal scholar writes, “detention by the state should never be considered consensual because to do so introduces an unwelcome and unworkable subjective element into the protection of the liberty of detainees” (Wilsher 2004: 905).
While deprivation of liberty seems to have at its base a singular meaning, it can take various forms, some more restrictive than others. Additionally, as we will see later in this paper, an argument can be made that not all sites of deprivation of liberty should be included in data on “immigration detention centres,” in particular facilities that are only used for very short periods.
Lastly, it is important to keep in mind potential challenges presented by the notion of “status-related violations.” Generally, unless they have committed unrelated breaches of the law, detained non-citizens have been taken into custody as a result of complications stemming from their status vis-à-vis the country in question. Some states systematically detain asylum seekers until their claims to refugee status can at least be initially reviewed; migrants are confined at ports of entry when they do not appear to have proper authorization to either permanently or temporarily reside in the country; and irregular immigrants (including “criminal aliens” who lose their residency status as a result of convictions for particular crimes) are subject to detention pending deportation when authorities deem them to lack authorization to reside in the country.
In all these situations, central to the decision to take the person into custody is a perceived problem with his or her status. However, some countries justify the detention of non-citizens in ways that avoid status-related questions. In Morocco, for instance, immigration detainees can be held in a form of preventive detention that is not justified on status considerations. Rather, they are held on grounds of “disturbing the peace,” potentially making them fall outside the definition presented in this paper (Flynn and Cannon 2010: 12).
Coming up with a one-size-fits-all definition is a challenging undertaking, especially when assessing a phenomenon that can radically change shape from one country to the next. In this case, while Morocco presents a challenge with respect to our definition of migration-related detention, to some extent it is the exception that proves the rule. Morocco appears to be the only country where this form of detention does not appear to be officially justified at least in part on status considerations.

GUIDING PRINCIPLE
According to article 14 of Universal Declaration of Human Rights, the right to seek and enjoy asylum is recognized as a basic human right.
What are the conditions of detention?
Unfortunately, conditions of detention in most countries fall below international human rights standards. In fact, administrative detainees around the world often receive less protection, both relating to the procedures governing their detention and the conditions of detention, than persons pending criminal trial or those who have been convicted of a crime. For example, access to legal counsel is sporadic or non-existent in many places. Administrative detainees often do not receive information in a language and a manner that they can understand on the reasons for their detention and their rights while detained. Most are kept in overcrowded, unhygienic conditions, sometimes with convicted criminals. In many countries, children are detained without being provided an opportunity to go to school. Men and women are sometimes held in the same facilities while, conversely, families may be split and held in separate facilities.
The conditions in most closed refugee camps are of serious concern. Being held in a closed refugee camp means that the refugees living there are unable to be self-sufficient. They are totally dependent on supplies provided by the international community, which are frequently subject to shortages and cuts. A quote from a Burundian refugee couple in Tanzania sums up the situation:
“They expect us to eat boiled beans and ugali (maize bread) every day, sometimes without even salt. Could you do that for 12 years? Things are becoming unbearable. The camp is insecure. Children die from malaria. And the rations go up and down, but we are the last to know. Maybe we must leave the camp, and go back to Burundi”.
Tanzanian law and policy prohibits refugees in these camps from working, undertaking any business activities or being more than 4 km away from the camps. It is essentially impossible for a refugee to abide by these laws. Not provided with enough food or with firewood to cook their rations, they must risk arrest, police abuse, assault and even rape as punishment for simply leaving the camps to earn money to buy food, or to collect firewood.
Seeking asylum is a basic human right. Asylum-seekers are often forced to enter a territory irregularly in order to enjoy this right and escape danger or persecution.
The 1951 Refugee Convention spells out that states shall not punish refugees and asylum-seekers for irregular entry in case they are directly coming from the country of persecution and they present themselves without delay to the authorities showing a good cause for their irregular entry. According to a conclusion reached with governments at UNHCR’s Executive Committee, refugees and asylum-seekers may only be detained in special cases, such as when the authorities have to verify their identity, determine the elements of their claim, when they have destroyed their travel or identity documents, have used fraudulent documents in order to mislead the authorities. Another possible reason for detention may be to protect public order or national security.
According to these international standards, detention of innocent asylum seekers, e.g. for bureaucratic purposes, should only be applied as a last resort and for the shortest period of time.

SAFEGUARDS IF DETAINED 1. To receive full communication of any order of detention. 2. Right to free legal counsel 3. Access to medical Aid 4. Right to communicate with concerned agency/refugee body/ advocate 5. Detention should not constitute an obstacle to asylum seeker access to pursue asylum application.

DETENTION OF CHILDREN
In 2009, the United Nations Children‘s Fund estimated that there were around 1.1 million children deprived of their liberty by criminal courts worldwide.While judicial detention of children by courts is relatively well documented, little is known about the practice of administrative detention of children. Few publications address the issue and States do not regularly collect or collate statistical data on administrative detention. As a result, information on the extent to which children are exposed to different forms of administrative detention is sparse and discussions of the impact that such detention has on children rare.
Administrative detention occurs when, as a result of a decision of an executive or administrative body, a child is placed in any public or private setting from which he or she cannot leave at will. Administrative detention occurs in some form in all States, although the bodies that have power to order such detention vary from State to State. Bodies and individuals that have the power to administratively detain may include police officers, military panels, immigration officials, health officials, doctors or local government child welfare bodies. While decisions taken to administratively detain a child may vary in terms of context, rationale and legal framework, the common element is that the decision to detain is taken not by a judge or a court, but by a body or a professional, who is not independent from the executive branch of government.
Children may be in cases of:- 1. Administrative detention for security purposes 2. Administrative detention for immigration purposes 3. Administrative detention of children in conflict with the law 4. Administrative detention of children in need of care and protection 5. Administrative detention on health grounds

ALTERNATIVE TO DETENTION 1. Monitoring requirement : where the asylum seeker stays out of the detention but is required to do the periodic reporting. 2. Residency requirement : where the asylum seeker is not detained on condition they reside on a specific address. 3. Provision of a Guarantor/surety : Asylum seeker is required to provide a guarantor who will responsible for ensuring their attendance at official appointments. 4. Open centres : where asylum seekers reside at a specific collective accommodation centres, where they would be allowed permission to leave and return during stipulated times.

PREVENTIVE DETENTION IN INDIA: CONSTITUTIONAL TYRANNY
The establishment of the National Commission to Review the Working of the Constitution (NCRWC) has created a stir in Indian politics. Many have questioned the motives of the Bharatiya Janata Party Government in creating such a commission. Yet, there is no denying the fact that the Constitution of India has several flaws. The preventive detention regime surely ranks among its worst, and the Commission perhaps provides the opportunity to repair that problem.
India is one of the few countries in the world whose Constitution allows for preventive detention during peacetime without safeguards that elsewhere are understood to be basic requirements for protecting fundamental human rights. For example, the European Court of Human Rights has long held that preventive detention, as contemplated in the Indian Constitution, is illegal under the European Convention on Human Rights regardless of the safeguards embodied in the law. South Asia Human Rights Documentation Centre (SAHRDC), in its submission to the NCRWC in August 2000, recommended deleting those provisions of the Constitution of India that explicitly permit preventive detention.
Specifically, under Article 22, preventive detention may be implemented ad infinitum -- whether in peacetime, non-emergency situations or otherwise. The Constitution expressly allows an individual to be detained -- without charge or trial -- for up to three months and denies detainees the rights to legal representation, cross-examination, timely or periodic review, access to the courts or compensation for unlawful arrest or detention. In short, preventive detention as enshrined under Article 22 strikes a devastating blow to personal liberties.
It also runs afoul of international standards. Article 4 of the International Covenant on Civil and Political Rights (ICCPR) -- which India has ratified – admittedly permits derogation from guaranteeing certain personal liberties during a state of emergency. The Government, however, has not invoked this privilege, nor could it, as the current situation in India does not satisfy with standards set forth in Article 4.
If preventive detention is to remain a part of India’s Constitution, it is imperative that its use be confined to specified, limited circumstances and include adequate safeguards to protect the fundamental rights of detainees. Particular procedural protections are urgently needed (i) to reduce detainees’ vulnerability to torture and discriminatory treatment; (ii) to prevent officials’ misusing preventive detention to punish dissent from Government or from majority practices; and (iii) to prevent overzealous government prosecutors from subverting the criminal process. In pursuit of these goals, SAHRDC made the following recommendations in its submission to the NCRWC:
First, Entry 3 of List III of the Constitution of India, which allows Parliament and state legislatures to pass preventive detention laws in times of peace for “the maintenance of public order or maintenance of supply and services essential to the community,” should be deleted. Assuming that preventive detention could be justified in the interest of national security as identified in Entry 9 of List I of the Constitution, there is still no compelling reason to allow this extraordinary measure in the circumstances identified in Entry 3 of List III.
Second, lacking clear guidance from the Constitution, courts have applied vague and toothless standards -- such as the subjective “satisfaction” of the detaining authority test -- to govern the implementation of preventive detention laws. If preventive detention is to remain in the Constitution, constitutional provisions must include well-defined criteria specifying limited circumstances in which preventive detention powers may be exercised -- and these standards must be designed to allow meaningful judicial review of officials’ actions.
Third, under Article 22(2) every arrested person must be produced before a magistrate within 24 hours after arrest. However, Article 22(3)(b) excepts preventive detention detainees from Clause (2) and, as a consequence, it should be repealed in the interest of human rights. At present, detainees held under preventive detention laws may be kept in detention without any form of review for up to three months, an unconscionably long period in custody especially given the real threat of torture. At the very least, the Government should finally bring Section 3 of the Forty-fourth Amendment Act, 1978 into effect, thereby reducing the permitted period of detention to two months. Though still a violation of international human rights law, this step would at least reduce the incidents of torture significantly.
Fourth, the Advisory Board review procedure prescribed by the Constitution involves executive review of executive decision-making. The absence of judicial involvement violates detainees’ right to appear before an “independent and impartial tribunal”, in direct contravention of international human rights law including the ICCPR (Article 14(1)) and the Universal Declaration of Human Rights (Article 10). The Constitution must be amended to include clear criteria for officials to follow, and subject compliance with those standards to judicial review.
Fifth, the Constitution provides that the detaining authority must refer to the Advisory Board where detention is intended to continue beyond three months. No provision exists for the consideration of a detainee’s case by the Advisory Board more than once. Yet, periodic review is an indispensable protection to ensure that detention is “strictly required” and fairly administered. Hence, the Constitution should mandate periodic review of the conditions and terms of detention.
Sixth, detainees must receive detailed and prompt information about the grounds of their arrest. Currently, the detaining authority is required only to communicate the grounds of detention to the detainee “as soon as may be” after the arrest. Article 9(2) of the ICCPR provides that “[a] nyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.” Detainees must be guaranteed a minimum period in which the grounds are promptly communicated to them, and be given information sufficient to permit the detainee to challenge the legality of his or her detention
Seventh, individuals held under preventive detention must be given the right to legal counsel and other basic procedural rights provided by Articles 21, 22(1) and 22(2) of the Constitution. Article 22(1) of the Constitution, for example, guarantees the right to legal counsel, but Article 22(3)(b) strips this right from persons arrested or detained under preventive detention laws. Relying on these provisions, the Supreme Court stated, in AK Roy v. Union of India, that detainees do not have the right to legal representation or cross-examination in Advisory Board hearings. Contrary to India’s constitutional practice, the U.N. Human Rights Committee has stated, “all persons arrested must have immediate access to counsel.” Article 22(3)(b) of the Constitution – denying detainees virtually all procedural rights during Advisory Board hearings – must be repealed.
Eighth, Article 9(5) of the ICCPR provides the right to compensation for unlawful detention, except during public emergencies. A similar provision creating a right to compensation is included in section 38 of the Prevention of Terrorism Bill of 2000 (though the bill is otherwise effectively a reconstitution of the lapsed Terrorist and Disruptive Activities Prevention Act (TADA)). The Law Commission charged with reshaping the anti-terrorism legislation observed that Supreme Court orders have held that people are effectively entitled to compensation, in practice superseding India’s reservation to Article 9(5) of the ICCPR. In this light, the Government of India should promptly withdraw its reservation to Article 9(5) of the ICCPR and include a Constitutional provision guaranteeing the right to compensation, at least for unlawful detention during peacetime.
In keeping with the overriding spirit of the Constitution and with minimum standards of international human rights law, it is essential that the Constitutional reforms discussed above be adopted. The process set in motion by establishing the NCRWC provides a unique opportunity for such an important realignment of India’s Constitution with prevailing international human rights standards. The key will be political willpower and the commitment to seeing justice done.