Right against Torture (Article 22) and Right against Preventive Detention (Article 23)
Exam Snapshot
Article 22 guarantees an absolute right against torture, ensuring physical and mental integrity with mandatory compensation. Article 23 provides safeguards against preventive detention, ensuring that detention is not arbitrary and follows strict legal procedures.
Core Concept
- Right against Torture (Art 22): No person in custody shall be subjected to physical or mental torture or to cruel, inhuman, or degrading treatment. Any such act is punishable by law, and the victim is entitled to compensation.
- Preventive Detention (Art 23): No person shall be kept in preventive detention unless there is a sufficient ground of existence of an immediate threat to the sovereignty, integrity, or public peace and order. It is a limitation on state power to prevent arbitrary arrests.
Nepal Law Anchors
- Constitution of Nepal 2072: Article 22 (Right against Torture) and Article 23 (Right against Preventive Detention).
- Compensation Relating to Torture Act 2053: Specifies the procedure and quantum of compensation for victims of torture.
- Muluki Criminal Procedure Code 2074: Governs the procedural standards for arrest and custody, ensuring human rights are upheld during investigations.
Confusable Terms
| Term | Distinction |
|---|---|
| Punitive Detention | Imposed as punishment for a crime already committed (requires trial). |
| Preventive Detention | Imposed to prevent a future act (does not require a criminal trial but must adhere to strict constitutional limits). |
MCQ Traps
- Trap: Assuming preventive detention is a standard police power. Correction: It is a constitutional exception subject to rigorous, non-arbitrary conditions.
- Trap: Thinking compensation for torture under Article 22 is discretionary. Correction: Compensation is a constitutional mandate, not a discretionary judicial act.
Example
If a police officer uses physical force or psychological pressure to extract a confession during interrogation, this constitutes a violation of Article 22. If the state detains an individual indefinitely for "security reasons" without informing them of the grounds or without a periodic review process, it violates the procedural safeguards of Article 23.
Memory Hook
22 = No Pain (Torture Forbidden); 23 = No Cage (Arbitrary Detention Forbidden).
Quick Revision
- Article 22 covers physical and mental torture.
- Compensation for torture is mandatory.
- Preventive detention is not arbitrary; it requires specific grounds.
- Detainees in preventive custody must be informed of the reasons for their detention.
- Preventive detention is a constitutional check, not an unbridled power.