'Article 22 A Necessary Evil, An Instrument Of Protective Statecraft': P&H High Court Denies Relief To NSA Detained Amritpal's Alleged Aide

Observing that Article 22 of the Constitution is the "necessary evil", the Punjab & Haryana High Court has dismissed the plea of Waris Punjab De head Amritpal's alleged aide to arrest him in the FIR rather than keeping him under preventive detention under the National Security Act (NSA).

Justice Rajbir Sehrawat said, Although there have been several judgments of the Supreme Court highlighting and expanding the amplitude of right to life and liberty to various facets of the human life and impressing upon giving strict interpretation to Article 22, however, adumbrated in howsoever exalted language, and decorated with whatever adjectives; the right guaranteed by Article 21 of the Constitution cannot surpass the rigour of limitation permitted to the State by Article 22 of the Constitution.

The Court further added that demonising Article 22 of the Constitution is also not going to remove the eclipse which this Article casts over the right guaranteed by Article 21 of the Constitution.

Therefore, even if Article 22 of the Constitution is considered to be an evil, it happens to be a necessary evil to ensure that the liberty of every citizen is maintained at an optimal level, by not permitting the liberty of one individual to the absurd heights, which may try to harm the liberty of another citizen; directly or indirectly, by creating adverse situations of public order, the Court added.

These observations came in response to the plea filed by Sarabjit Singh Kalsi under Section 482 CrPC, seeking directions to the State to arrest him in the FIR lodged in the Ajnala Police station attack case. Kalsi is detained under NSA along with Amritpal Singh at Dibrugarh Jail.

It was alleged that in February, Kalsi, along with Amritpal and other co-accused, attacked and ransacked Ajnala police station in Amritsar, brutally injuring policemen. An FIR was lodged under Sections 307, 353, 186, 332, 333, 506, 120-B, 427, 148 and 149 of IPC.

The counsel for the petitioner argued that the petitioner has a right to speedy trial which involves speedy action at all stages of trial, including the investigation. The counsel submitted that the State should be directed to arrest the petitioner in the FIR case and to complete the investigation with due promptitude, so as to decide the aspect whether the petitioner is to be prosecuted for the offences mentioned the abovesaid FIR or not.

It was contended that the petitioner cannot be made to incarcerate twice, once for preventive detention and another time for prosecution in the criminal case.

After hearing both sides and considering the material on record, the bench said, Article 21 "can be aptly called as the brightest shining star in the constitutional constellation of Bharat. However, all brightest shining stars are cursed to undergo an eclipse as well."

Article 21 of the Constitution is no exception to this, Article 22 of the Constitution puts curbs on the liberty of citizens to some extent in certain situations; and to a greater extent for certain reasons, added the Court.

The Court noted that the prayer of the petitioner, in the first place, is to direct the police to arrest the petitioner in a criminal case and thereafter, to conduct the investigation in the offences alleged in the above-said FIR.

In effect the petitioner's prayer was to transport his case to the first part of Article 22 as contained in sub-Articles (1) and (2) by discounting the second part of Article 22 of the Constitution as contained in sub-Articles (3) to (7), it added.

Hence the Court concluded, that if a person is detained in preventive detention, he does not even have a right to claim that he be arrested in the criminal case, may be, even if the criminal offence arises from the same factual gamut.

Otherwise also, in the considered opinion of this Court, it would not be appropriate for any Court, much less the Constitutional Court to direct arrest of a person, when the State/Police itself is not intending to arrest such a person in any crime, as such, the Court opined.

Justice Sherawat said this would be "a constitutional absurdity" and a perversion directly impinging upon and destroying the right of the petitioner guaranteed under Article 21 of the Constitution and "which may bring huge adverse consequence for him. Even if a person so desires, he cannot waive of his fundamental rights."

The bench opined that fundamental rights are so fundamental and inalienable part of human life that no constitutional jurisprudence would countenance a person giving away his fundamental rights. Constitutionalism does not permit Constitutional suicide.

Rejecting the contention that the petitioner's right to speedy trial and investigation is infringed by not initiating the investigation in the alleged FIR, the Court said, "Right to speedy investigation and speedy trial would become operational only in case the investigation is started against the petitioner."

Furthermore, it said that it would not be justified for the Court to direct the State to arrest the petitioner in connection with an alleged crime. "Hence, a petition for that purpose would not even be maintainable before the High Court."

In the light of the above the petition was dismissed.

Appearance: Navkiran Singh, Advocate and Ms. Harpreet Kaur, Advocate, for the petitioner.

 Aman Pal, Addl. Advocate General, Punjab and  Sandeep, Addl. Advocate General, Punjab 

Citation: 2023 LiveLaw (PH) 261

Title: Sarabjeet Singh Kalsi v. State Of Punjab & Ors.

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