Article 22 – Protection against arrest and detention

Article 22 grants protection to persons who are arrested or detained. Detention are of 2
types –

1. Punitive detention – to punish a person for offences committed by him.

2. Preventive Detention – to prevent a person from committing an offence in the near
future.

Article 22 has two parts – the first part deals with deals with cases of ordinary laws and
the second part deals with cases of preventive detention laws.

Part I – Rights of a person under ordinary laws

Clauses (1) & (2) of Art.22 guarantee four rights to a person who is arrested for any
offence under ordinary law

(A) The right to be informed ‘as soon as may be’ of grounds of arrest.
(B) The right to consult and to be represented by a lawyer of his own choice.
(C) The right to be produced before a Magistrate within 24 hours.
(D) The right to be released after 24 hours unless the magistrate authorizes further
detention

(A)The right to be informed ‘as soon as may be’ of grounds of arrest

• This is necessary to enable the arrested person to know the grounds of his arrest and
to prepare his defence.
• The words used in clause (1) are ‘as soon as may be’ which means as nearly as is
reasonable in the circumstances of a particular case. If the grounds of arrest is
delayed, it must be justified by ‘reasonable circumstances’.
• The National Police commission report in its third report pointed out that the power
of police to arrest is one of chief sources of corruption and that 60% of arrest were
either unnecessary or unjustified.

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(B) The right to consult and to be represented by a lawyer of his own choice

• In America, if a person is arrested, he must be afforded opportunity to consult his

own lawyer and if he is unable to employ a council, it is the duty of court to employ
a lawyer for hm.
• However, in India prior to the Maneka Gandhi decision the court was of the opinion
that it was not bound to provide a lawyer unless a request was made. But as a result
of the ruling of the S.C. in Maneka Gandhi case and a series of cases following the
cases it is clear that the court will be bound to provide the assistance of a lawyer to
a person arrested under ordinary law also.

• Right to free legal aid is an integral part of Art.21. Thus if free legal aid is not
provided, the entire trial can be held unconstitutional as contravening Art.21 &
Art.22.

(C) The right to be produced before a Magistrate within 24 hours

• The arrested person must be produced before the magistrate within 24 hours of his
arrest excluding the time necessary for the journey from the place of arrest to the
court of magistrate.
• The provision enables a person’s right to speedy trial under Art.21.
• If there is a failure to produce the arrested person before the magistrate within 24
hours it would make the arrest illegal.

(D) The right to be released after 24 hours unless the magistrate authorizes further
detention

• The detention of a person cannot continue beyond 24 hours unless by order of the
magistrate.
• If there is necessity of detention beyond 24 hours, it is only possible under judicial
custody.

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Scope & Limitation – Clause (3)

• The safeguards under Part 1 of Art.22 are not available to an alien enemy or a person
arrested under any preventive detention laws.
• Further, Part 1 of Art.22 only covers acts of criminal and quasi-criminal nature or
some activity prejudicial to public interest.

Part II – Preventive detention laws

Clause (4) to (7) of Art.22 provide the procedure which is to be followed if a person is
arrested under the law of ‘Preventive Detention’.

Clause (4) to (7) guarantee the following safeguards to a person arrested under Preventive
detention Law-

(A) Review by Advisory board

(B) Communication of grounds of detention to detenue
(C) Detenue’s right of representation

(A) Review by Advisory board

• Preventive detention of a person cannot exceed the period of 3 months unless the
advisory board is of the opinion that the cause detention is sufficient. If the cause for
detention is not justified then the government is bound to invoke the detention order.
And if the cause is justifiable then then the detaining authority will determine the
period of detention but the same cannot be indefinite.
• The 44th constitutional amendment act,1978 has reduced the maximum period of
detention from 3 month to 2 months. But since the 44th Amendment has not yet been
enforced, the provisions prior to 44th Amendment act still apply.

(B) Communication of grounds of detention to detenue

• Clause (5) of Art.22 imposes obligation on the detaining authority to furnish to the
detenue the grounds “as soon as possible”. The ground for detention should be clear
and easily understandable by the detenue.

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 • In Lallubhai Jogibhai Patel v. Union of India, the detenue did not know English
but the grounds of detention were drawn in English and the detaining order stated
the Police Inspector would fully explain the grounds in Gujarati but the same was
not done. It was held that there was no sufficient compliance of Art.22(5) and hence
the order of detention was invalid.

(C) Detenue’s right of representation

• The detenue must be given the earliest opportunity to make representation against
the detention order. Under Art.22(5) it is the detaining authority’s responsibility to
communicate to the detenue that he has a right to make representation and also a
right to be heard by the advisory board.
• In order to make a representation the detenue must be provided with all the basic
facts, materials and documents relied upon by the detaining authority. The failure to
comply with this requirement would vitiate the order of detention.
• Further, the government is bound to consider petitioner’s representation as
expeditiously as possible and delay in deciding petitioner’s representation would
make the detention illegal.
• In T.D.Abdul Rahman v. State of Kerala, There was a delay of 72 days in disposing
the representation of the petitioner as there was a delay in seeking the comment of
the collector of customs. The court held the detention order as invalid due to absence
of a satisfactory explanation on the part of concerned authority.

Preventive detention Laws in India

It should be noted that India is the only democratic country in the world having preventive
detention as a part of constitution. Preventive detention was only resorted in Britan during
first and second world war.

The Preventive detention act, 1950

Maintenance of Internal Security Act, 1971 (MISA)

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Prevention of Black Marketing and Maintenance of supplies of essential commodities act,
1980

National Securities Act, 1982 (NSA)

Terrorist and Disruptive Activities (prevention) Act, 1987 (TADA)

Prevention of Antiterrorist Act, 2002 (POTA)

Unlawful Activities Prevention Act, 2019 (UAPA)

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