Article 22 of the Indian Constitution stands as a crucial safeguard for personal liberty, protecting individuals against arbitrary arrest and detention by the state. It addresses two distinct types of detention: punitive detention, which is for punishment after a trial and conviction, and preventive detention, which is detention without trial based on suspicion or apprehension of committing a future offense.
This article lays down specific rights for persons arrested under ordinary law and also provides certain safeguards for individuals detained under preventive detention laws, balancing state security concerns with individual freedom.
Original Text
22. Protection against arrest and detention in certain cases.
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply— (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless— (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
(7) Parliament may by law prescribe— (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board; (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).
Detailed Explanation
Article 22 is bifurcated into two main parts: clauses (1) and (2) dealing with persons arrested under ordinary law (punitive detention), and clauses (4) to (7) dealing with persons detained under preventive detention laws. Clause (3) provides exceptions to the first part.
Punitive Detention Safeguards (Clauses 1 & 2)
- Clause (1): Guarantees two fundamental rights to a person arrested under ordinary circumstances:
- Right to be informed of the grounds of arrest: The arrested person must be told “as soon as may be” why they are being arrested. This allows the individual or their representative to seek legal recourse, such as applying for bail or challenging the legality of the arrest.
- Right to consult and be defended by a legal practitioner of one’s choice: The arrested person has the right to meet and be represented by a lawyer of their preference. This ensures access to legal advice and representation during custody and potential trial. The state cannot deny this right.
- Clause (2): Guarantees two further rights:
- Right to be produced before a Magistrate within 24 hours: The arrested person must be brought before the nearest judicial magistrate within 24 hours of the arrest. This period excludes the time taken for the journey from the place of arrest to the magistrate’s court.
- Right against detention beyond 24 hours without Magistrate’s authority: No person can be held in police or judicial custody for more than 24 hours without the express permission of a magistrate. The magistrate has the power to authorise further detention if satisfied with the grounds presented by the police, but this prevents indefinite detention by the executive without judicial oversight.
Exceptions (Clause 3)
- Clause (3): Specifies persons to whom the safeguards under clauses (1) and (2) do not apply:
- Enemy aliens: Persons belonging to a country with which India is at war.
- Persons arrested or detained under any law providing for preventive detention: Individuals held under preventive detention laws have a different set of safeguards provided under clauses (4) to (7).
Preventive Detention Safeguards (Clauses 4-7)
Preventive detention laws are made by both Parliament and State Legislatures (Concurrent List, Entry 3). These laws allow detention based on suspicion rather than a crime committed. Article 22 provides limited safeguards against potential misuse:
- Clause (4): Deals with the maximum period of preventive detention:
- Maximum Period: Generally, no person can be detained for more than three months under a preventive detention law unless an Advisory Board opines that there is sufficient cause for detention before the expiry of three months.
- Advisory Board: Must consist of persons who are or have been judges of a High Court or are qualified to be appointed as such.
- Extension: Detention beyond three months is permitted only if the Advisory Board gives a positive report within the three-month period or if Parliament has made a law specifying circumstances, classes of cases, and maximum periods for detention longer than three months without an Advisory Board opinion (referencing Clause 7).
- 44th Amendment Act, 1978: Changed the maximum period from ’three months’ to ’two months’ and the Advisory Board criteria. However, this amendment related to preventive detention (Section 3) was not brought into force. Thus, the original ’three months’ provision continues to be effective based on the unamended Clause (4).
- Clause (5): Guarantees rights to the detenu (person detained under preventive detention):
- Right to be informed of grounds of detention: The detaining authority must communicate the grounds for detention to the detenu “as soon as may be”.
- Right to make a representation: The detenu must be given the earliest opportunity to make a representation against the detention order. This allows the detenu to challenge the grounds presented by the authority.
- Clause (6): Acts as a limitation on Clause (5):
- The detaining authority is not required to disclose facts which it considers to be against the public interest to disclose. This limits the detenu’s access to complete information if the authority deems it sensitive.
- Clause (7): Empowers Parliament regarding preventive detention laws:
- Parliament can prescribe by law:
- The circumstances and classes of cases where detention can exceed three months without an Advisory Board opinion (referencing the proviso in Clause 4(a)).
- The maximum period for which a person can be detained under any preventive detention law.
- The procedure to be followed by an Advisory Board.
- Parliament can prescribe by law:
Detailed Notes
- Article 22 protects individuals against arbitrary arrest and detention.
- It applies to both citizens and non-citizens, except for enemy aliens regarding clauses (1) and (2).
- Part 1 (Clauses 1 & 2): Safeguards against Punitive Detention (Arrest under Ordinary Law)
- Right to be informed of grounds of arrest (as soon as may be).
- Right to consult and be defended by a legal practitioner of choice.
- Right to be produced before the nearest Magistrate within 24 hours of arrest (excluding journey time).
- Right against detention beyond 24 hours without Magistrate’s authority.
- Part 2 (Clauses 4-7): Safeguards against Preventive Detention
- Applies to persons detained under laws enacted for preventive purposes.
- Detention cannot ordinarily exceed three months unless an Advisory Board confirms sufficient cause before the expiry of three months (as per original unamended Clause 4(a) which is in effect).
- Advisory Board must consist of persons who are or have been or are qualified to be High Court Judges.
- Parliament can legislate for detention beyond three months without Advisory Board opinion in specific circumstances/cases (Clause 7a).
- Parliament can prescribe the maximum period of detention (Clause 7b).
- Parliament can prescribe the Advisory Board procedure (Clause 7c).
- Detaining authority must communicate the grounds of detention to the detenu as soon as may be.
- Detenu must be afforded the earliest opportunity to make a representation against the detention order.
- Authority is not required to disclose facts considered against public interest (Clause 6).
- Exceptions (Clause 3): Clauses (1) and (2) do not apply to:
- Enemy aliens.
- Persons arrested or detained under preventive detention laws.
- The rights under clauses (1) and (2) are mandatory and cannot be bypassed by the executive. Failure to comply can lead to the release of the arrested person.
- Preventive detention laws are a controversial aspect of the Indian Constitution, seen by some as a necessary evil for security and by others as a potential tool for suppressing dissent.
Additional Comments
- Article 22 provides safeguards against arbitrary executive action but does not grant immunity from arrest or detention under due process of law.
- The rights under clauses (1) and (2) are available from the moment of arrest.
- The ‘24 hours’ rule is designed to bring the arrested person under judicial scrutiny promptly, preventing prolonged police custody without justification.
- The scope of “right to consult and be defended by a legal practitioner” includes the right to be informed of this right by the police and the right to free legal aid for indigent persons (as held in Hussainara Khatoon vs. State of Bihar and Khatri vs. State of Bihar).
- The Supreme Court has emphasized the strict observance of the safeguards under Article 22 for preventive detention, noting that the detaining authority must strictly comply with the procedure and furnish all material grounds relevant to the detention.
- The distinction between ‘grounds of arrest/detention’ and ‘facts’ is crucial. Grounds are the conclusions or reasons for detention, while facts are the supporting details. Clause (6) allows withholding of facts, but not the grounds, if deemed against public interest.
- The power of preventive detention is an extraordinary power and must be used sparingly and strictly in accordance with the law.
- Landmark judgments like A.K. Gopalan vs. State of Madras (narrow interpretation of ‘procedure established by law’ under Article 21, linkage between 19, 21, 22) and Maneka Gandhi vs. Union of India (expansive interpretation of Article 21, concept of ‘due process of law’, interrelationship of Fundamental Rights) have shaped the understanding and application of Article 22, particularly its relationship with Article 21. D.K. Basu vs. State of West Bengal laid down specific guidelines for police regarding arrest and detention, which are now part of the Code of Criminal Procedure (CrPC).
Summary
Article 22 of the Indian Constitution provides essential protections for individuals against arbitrary arrest and detention. For persons arrested under ordinary law, it guarantees the right to be informed of the grounds of arrest, the right to consult and be defended by a legal practitioner of choice, and the right to be produced before a magistrate within 24 hours, prohibiting detention beyond this period without judicial authority. These rights do not apply to enemy aliens or those detained under preventive detention laws. For individuals subjected to preventive detention, the article provides limited safeguards, including the right to be informed of the grounds for detention and the earliest opportunity to make a representation. It also regulates the maximum period of preventive detention, generally limiting it to three months unless reviewed by an Advisory Board, and empowers Parliament to legislate on specific aspects of preventive detention, such as maximum periods and procedures. While providing critical checks on state power concerning personal liberty, the provisions regarding preventive detention remain a subject of debate due to their inherent nature of detention without trial.