UPSC Prelims 2023 Q77: Art 355, Preventive Detention & POTA Explained
Consider the following statements:
1. According to the Constitution of India, the Central Government has a duty to protect States from internal disturbances.
2. The Constitution of India exempts the States from providing legal counsel to a person being held for preventive detention.
3. According to the Prevention of Terrorism Act, 2002, confession of the accused before the police cannot be used as evidence.
How many of the above statements are correct?
- Only one
- Only two
- All three
- None
Answer: (b) Only two
Statement-wise explanation
- 1: correct — Article 355 says it is the duty of the Union to protect every State against external aggression and internal disturbance. The same Article also makes the Union ensure that every State's government is carried on according to the Constitution. So the Centre's duty to protect States from internal disturbance comes straight from the Constitution.
- 2: correct — Article 22(1) gives an arrested person the right to consult, and be defended by, a legal practitioner of their choice. Article 22(2) requires production before a magistrate within 24 hours. Article 22(3)(b) says neither clause applies to a person arrested or detained under a preventive detention law. The State therefore has no constitutional duty to provide legal counsel to a preventive detainee.
- 3: incorrect — Section 32 of the Prevention of Terrorism Act, 2002 made a confession admissible in the trial of the accused if it was made before a police officer not below the rank of Superintendent of Police. The officer had to record it in writing or on an electronic device such as a cassette or tape. This was a deliberate departure from ordinary criminal law, where a confession to the police cannot be used as evidence. POTA was repealed in 2004.
How to eliminate
Statement 1 is certain from basic Polity: Article 355 is the Union's 'duty to protect States', and it is the usual justification for sending central forces to a State. That removes 'None'. Statement 3 is a trap. It states the ordinary rule (a confession to the police is not admissible under Section 25 of the Indian Evidence Act) and pins it on POTA. Anti-terror laws like POTA were controversial because they broke this rule and allowed confessions made to senior police officers. If you remember that POTA was criticised and repealed for being harsh on the accused, you can reject Statement 3. That removes 'All three'. Statement 2 is the deciding fact. Remember Article 22(3)(b): the safeguards in 22(1) and 22(2), including the right to a lawyer, do not apply to preventive detention. With 1 and 2 true and 3 false, the count is two.
Know more
Article 22: two tracks of protection
Article 22 sets out two different sets of safeguards. Clauses (1)–(2) cover ordinary (punitive) arrest. Clauses (4)–(7) cover preventive detention. Clause (3) is the switch between them: the ordinary-arrest safeguards do not apply to enemy aliens or to persons held under a preventive detention law.
| Safeguard | Ordinary arrest | Preventive detention |
|---|---|---|
| Told the grounds | As soon as may be (22(1)) | As soon as may be (22(5)) |
| Lawyer of choice | Yes (22(1)) | Not guaranteed (22(3)(b)) |
| Produced before a magistrate within 24 hours | Yes (22(2)) | Not guaranteed (22(3)(b)) |
| Representation against the order | — | Earliest opportunity (22(5)) |
| Review | By the courts | Advisory Board of High Court-level judges if detention exceeds 3 months (22(4)) |
Preventive detention laws include MISA (1971), the National Security Act (1980) and State 'Goondas' Acts.
Articles 355, 356 and 365
Article 355 places a duty on the Union to protect States from external aggression and internal disturbance. It also requires the Union to ensure that each State is governed according to the Constitution. When that constitutional government breaks down, Article 356 (President's Rule) can follow. Under Article 365, a State's failure to follow Union directions lets the President conclude that such a breakdown has happened. Article 355 is also the ground for deploying central armed forces in a State.
Confessions to the police
Under ordinary law (Section 25 of the Indian Evidence Act), a confession made to a police officer cannot be proved against the accused, because of the risk of coercion. Special anti-terror laws made exceptions. Under POTA, Section 32 allowed confessions recorded by an officer of Superintendent of Police rank or above. POTA was repealed in 2004.
NCERT Concepts to Revise
- Duty of the Union to protect states: Statement 1 depends on what Article 355 places on the Union and against which threats it must protect States.
- Preventive detention: Statement 2 depends on how preventive detention differs from ordinary arrest under Article 22.
- Maintenance of Internal Security Act 1971: MISA is the classic preventive detention law, and it shows how detainees are treated differently from people under criminal trial.
- A.K. Gopalan case: The first major Supreme Court case on preventive detention and the reach of Article 22 safeguards for detainees.