Article 22 - Protection against Arrest and Detention in Certain Cases | Constitution of India

Article 22 provides safeguards against arbitrary arrest and detention. It prescribes the minimum procedural requirements that must be included in any law enacted by the legislature in accordance with which a person may be deprived of his life and personal liberty. If a law contravenes the conditions or limitations prescribed by Art. 22, the law would be a nullity. Art. 21 has to be read as supplemented by Art. 22.

Art. 22 is designed to give protection against the act of executive or order of non-judicial authorities and applies to a person who has been accused of a crime or of offence of criminal or quasi-criminal nature or some act prejudicial to the State or public interest.

Detention is of two types, namely, punitive and preventive.

1. Punitive Detention – It is to punish a person for an offence committed by him after trial and conviction in court.
2. Preventive Detention – It refers to detention of a person without trial and conviction by a court; in order to prevent him from committing an offence in the near future.

While the object of the punitive detention is to punish a man for having done something, the object of preventive detention is to intercept him before he does it and to prevent him from doing it. No offence is proved nor is any charge formulated. The sole justification of such detention is suspicion or reasonable probability of the detenu committing some act likely to cause harm to society or endanger the security of the Government, and not criminal conviction which can only be warranted by legal evidence.

Arrests in cases of a civil nature (such as civil imprisonment for failing to pay a debt or income tax) are not covered by the constitutional safeguards provided under Article 22 of the Indian Constitution. Those protective rights apply strictly to criminal or quasi-criminal actions and preventive detention. The safeguards under this Article are available to both citizens as well as non-citizens. However, it cannot be availed by an enemy alien.

Clauses of Art. 22

1. Art. 22(1) – It provides the following safeguards to an individual: -

1. Right to be informed ‘as soon as may be’ of grounds of arrest; and
2. Right to consult and defended by a legal practitioner of his own choice.

2. Art. 22(2) – It provides the following safeguards to an individual: -

1. Right to be produced before a Magistrate within 24 hours of his arrest (excluding the time of journey); and
2. No detention beyond 24 hours except by the order of Magistrate.

3. Art. 22(3) – Clause (3) acts as an exception to clauses (1) and (2). It states that nothing in clauses (1) and (2) shall apply –

1. to any person who for the time being is an enemy alien; or
2. to any person who is arrested or detained under any law providing for preventive detention.

An enemy alien may, however, seek the protection under clauses (4) and (5) of Art. 22 if arrested under a law of preventive detention, but subject to the law made by the Parliament.

Clauses (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.

India is a peculiar country having a multi-ethnic, multi-religious and multilingual society. Caste and communal violence is still a common feature in Indian society. Thus, various preventive detention laws have been enacted e.g. Preventive Detention Act, 1950 (Repealed); MISA (Maintenance of Internal Security Act, 1971) (Repealed); Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, NSA (National Security Act, 1980); COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974); TADA, POTA (Prevention of Terrorism Act, 2002); UAPA (Unlawful Activities (Prevention) Act; etc.

The preventive detention laws because of their nature are capable of being abused by authorities. The abolition of TADA and POTA is a case in the point. Thus, safeguards against these laws are necessary to mitigate their harshness, by placing fetters on legislative power conferred on the Legislature.

4. Art. 22(4) - No law providing for preventive detention shall authorise the detention of a person for a longer period than 3 months unless –

1. 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

2. 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. Art. 22(5) – Clause (5) gives two rights to the detenue –

1. the authority making the order of detention must “as soon as may be” communicate to the person detained the grounds of his arrest i.e. the grounds which led to subjective satisfaction of the detaining authority;
2. to give the detenu “the earliest opportunity” of making a representation against the order of detention i.e. to be furnished with sufficient particulars to enable him to make a representation.

6. Art. 22(6) – It states that disclosure of facts which are considered to be against public interest may not be furnished by the authority to the detenu. [Exception to Clause (5)].
7. Art. 22(7) – It provides that the Parliament may by law prescribe –
   1. Circumstances under which a person may be detained for more than three months, without obtaining any opinion of the Advisory Board;
   2. Maximum period of detention under such law;
   3. Procedure to be followed by an Advisory Board in an inquiry as per clause 4 of Article 22.

Important Case Laws

1. A.K. Gopalan v. State of Madras (1950) – In this case, it was observed that preventive detention laws are repugnant to democratic Constitutions. Preventive detention laws are not found in any of the democratic countries of the world. It was resorted to in England during the war time. The Indian Constitution, however, recognises preventive detention in normal times also.
2. State of Bombay v. Atma Ram (1954) – In this case, it was held that Art. 22(5) cast a duty on detaining authority to inform the detenu while serving the order of detention that he has a right to make representation against the order of detention and also a right to be heard by the Advisory Board. The ‘materials and documents’ relied on in the order of detention must be supplied to the detenu along with 'grounds'. It is important to note that the grounds of detention must be existent at the time of making the order. No part of such ground can be held back nor can new ground be added thereto.
3. Joginder Kumar v. State of Uttar Pradesh (1994) – In this case, the Supreme Court has laid down guidelines governing arrest of a person during the investigation. The court held that a person is not liable to arrest merely on the suspicion of complicity (involvement) in an offence. There must be some reasonable justification in the opinion of the police officer effecting the arrest that such arrest was necessary.

The Supreme Court mandated three immediate procedural rights:

1. Right to Inform a Friend/Relative: An arrested person has the absolute right to have a friend, relative, or person known to them informed of their arrest and the exact location where they are being detained.
2. Duty of the Police Officer: The police officer must explicitly inform the arrested person of this right as soon as they are brought to the police station.
3. The Diary Entry: The officer must record in the police station diary exactly who was informed of the arrest, at what time, and which police official made the notification. These entries must be produced before the Magistrate during the initial remand hearing to ensure strict compliance.