ARTICLE 22:

Constitutional Provisions Regarding Protection Against Arrest And Preventive Detention

Personal liberty of every individual holds significance in a free society like ours. No
person can be detained without legal sanction. The right to personal liberty is a basic
human right. There are three rights that stand independent of each other- the right to be
made aware of the reason for arrest as soon as an arrest is made, the right to be produced
before a Magistrate within twenty-four hours and the right to be defended by a lawyer of
own choice. Besides these rights there is a general declaration that no person shall be
deprived of his personal liberty except by procedure established by law, that insists on
legality of action. The rights given by Article 22(1) and (2) are absolute in themselves
and do not depend on other laws.7 Even though Articles 21 and 22 go together they
cannot be treated as interrelated or interdependent. In a way Article 22 advances the
purpose of Article 21, as it not only specifies some guaranteed rights available to persons
arrested or detained but also lays down the manner to deal with persons detained
preventively. 8 Art. 22 (3) & (4) enact two exceptions to the fundamental rights otherwise
guaranteed to the arrested persons under Clause (1) & (2), i.e., these protections are not
available in case of an enemy alien and a person arrested or detained under any law
providing for preventive detention.

Rights of An Arrested Person

The Supreme Court in D.K. Basu v State of West Bengal laid down some basic
guidelines as preventive measures to be observed in all cases of arrest and detention with
a view to prevent custodial violence:

1. The police personnel carrying out the arrest and handling the interrogation of the
arrestee should bear accurate, visible and clear identification and name tags with their
designation and their particulars must be recorded in a register.

2. A memo of arrest shall be prepared by the police officer at the time of arrest, which
shall be attested by at least one witness, who may either be a family member of the
arrestee or a respectable person of the locality from where the arrest is made. The memo
shall be countersigned by the arrestee and it shall also contain the time and date of arrest.

3. The arrestee or the detenu who is in custody in a police station or interrogation center
or other lock-up, shall be entitled to have a friend, relative or other person known to him
or having interest in his welfare to be informed, as soon as practicable, about his arrest or
detention at a particular place.

4. If the next friend or relative of the arrestee lives outside the district/town, the police
must notify the time, place of arrest and venue of custody of an arrestee to the police
station of the area concerned. This should be done telegraphically within a period of 8 to
12 hours after the arrest.

5. The arrestee must be made aware that the moment he is arrested or detained he has the
right to give this information to someone.

6. The arrest of the person disclosing the name of his/her next friend who has been
informed about the arrest, the names and the details of the police officials in whose
custody the arrestee is, must be entered in the diary at the place of detention.

7. The arrestee, as per his request, shall be examined at the time of his arrest. Any major
or minor injuries if present on his/her body must be recorded at that time. The “inspection
memo” must be signed both by the arrestee and the police officer effecting the arrest. A
copy of the same is to be provided to the arrestee.

8. A trained doctor on the panel of approved doctors appointed by the Director, Health
Services, should be conducting a medical examination of the arrestee every 48 hours
while he is detained in custody.

9. Copies of all above stated documents should be sent to Illaqa Magistrate for his record.

10. Permission may be given to the arrestee to meet his lawyer during interrogation, but
not throughout the interrogation.

11. The police officer causing the arrest should be communicating the information
regarding the arrest to a police control room at all district and state headquarters, within

12 hours of making the arrest. This information should be displayed on a conspicuous

notice board at the police control room.
A plain reading of first part of Article 22 of the Constitution of India, clearly indicates
that a person who is arrested cannot be detained in custody without being informed, as
soon as may be, of the grounds for such arrest. It means that he is to be informed of the
grounds for his arrest. The personal liberty being the cornerstone of our social structure,
the legal provisions relating to arrests have special significance. Article 22 makes the
minimum procedural requirements which must be included in any law enacted by
legislature in accordance with which a person is deprived of his personal liberty. A person
when arrested is undeniably deprived of his personal liberty. Some of the procedural
protections have been provided to a person to be arrested in Sections 50, 50-A 11, 55 and
75 of the CrPC. Section 50 casts a strict duty on the part of the police officer making the
arrest immediately to communicate the grounds of arrest to the arrested person.

Right To Be Informed of the Grounds Of Arrest

A person's personal liberty cannot be curtailed by arrest without informing him about the
reason of his arrest, as soon as possible. In case of arrest by warrant/order, as the case
may be, the warrant or the order itself must tell him, and where there is no warrant or
order the person making the arrest must give him that information.The basis of this rule is
to enable the arrested person to prepare his defence, and to move the court for bail. A
citizen's liberty cannot be curtailed except in accordance with law. When a person
arrested without warrant alleges by affidavit that he was not communicated with full
particulars of the offence leading to his arrest in the face of such affidavit, the police
diary cannot be perused to verify the police officer's claim of oral intimation of such
particulars. Even if such oral communication was made, whether full particulars were
communicated not being known the arrest and detention of the person is illegal.

Right To Be Produced Before The Magistrate Within 24 Hours

Article 22 (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. Art.22(2) provides one of the most material
safeguard that the arrested person must be produced before a magistrate within 24 hours
of such arrest so that an independent authority exercising judicial powers may without
delay apply its mind to his case. The corresponding provisions in the CrPC are Sections
56 and 303. But the constitution makers were anxious to make these safeguards an
integral part of the fundamental rights.This is a mandatory provision and is based on the
policy of law that the magistrate before whom a prisoner is produced must be in a
position to bring an independent judgement to bear on the matter. This provision is not to
be treated as a mere formality. Its purpose is to enable the person arrested to be released
on bail, or other provision made for his proper custody, while the investigation is pending
for the offences with which he is charged pending an enquiry or trial. 14 The magistrate
should apply judicial mind to see whether the arrest of the person produced before him is
legal, regular and in accordance with law. He is not expected to act mechanically. The
requirement to produce an arrested person before a magistrate may come to an end if he
is released on bail.

Right To Legal Assistance Article 22 (1). – No person who is arrested shall be detained
in custody without being informed, as soon as may be, of the grounds of such arrest nor
shall he be denied the right to consult, and to be defended by, a legal practitioner of his
choice.

When a person is arrested in relation to a cognizable offence and is first produced before
a magistrate, he becomes entitled to the right to access to legal aid, to consult and to be
defended by a legal practitioner. It is obligatory for such magistrate to make the arrestee
fully aware of his right to consult and be defended by a legal practitioner and, that one
would be provided to him from legal aid at the expense of the State if he has no means to
engage a lawyer of his choice. A lawyer has to be provided at the commencement of the
trial to every accused who is unrepresented by one, and is to be engaged to represent him
during the entire course of the trial. It is the Constitutional duty of the court to provide
him with a lawyer before the commencement of the trial even if the accused never asks
for it or he remains silent, and this obligation is absolute. The failure to fulfil this
obligation at the commencement of the trial would have the effect of vitiating the trial,
the resultant conviction and sentence, if any, given to the accused. However, the failure to
provide a lawyer to the accused at the pre-trial stage may not have the same consequence
of vitiating the trial Such a fundamental right given under this Article is not fettered by
any reasonable restrictions. Any law that takes away this right offends against the
Constitution. He becomes entitled to consult and to be defended by a legal practitioner of
his choice as soon as he is arrested and continues so long as the effect of the arrest
continues.

In NandiniSathpathy v. P.L.Dhani, it was observed that the spirit and sense of Art.22 (1)
is that it is fundamental to the rule of law that the services of a lawyer shall be available
for consultation to any accused person under circumstances of near custodial
interrogation. The Court however, clarified that the lawyer cannot harangue the police,
but may help his client and complain on his behalf.

In Poolpandi the Court did not accept that a person summoned for interrogation is
entitled to the presence of his lawyer during questioning.

In D.K. Basu v State of West Bengal, the Supreme Court issued directions to be followed
as preventive measures in all cases of arrest or detention to the effect that the arrestee
may be permitted to meet his lawyer during interrogation, though not throughout the
interrogation.

In a recent case Directorate of Revenue Intelligence v Jugal Kishore Samra, the Court did
not accept the contention that the respondent is entitled as of right, to the presence of his
lawyer at the time of his interrogation in connection with the case. The right to consult
and be defended by a legal practitioner is not to be interpreted as sanctioning or
permitting the presence of a lawyer during police interrogation. The role of a lawyer, as
per our legal system, mainly focuses on court proceedings. It is only for the purpose of
resisting remand to police or judicial custody and for granting of bail; the accused would
need a lawyer to explain to him the legal repercussions in case he intended to make a
confessional statement in terms of Section 164 CrPC; to represent him in the court after
the charge sheet is submitted by the police and to decide, upon the future course of
proceedings, both at the stage of the framing of charges; and beyond that, for the trial.
The Criminal Procedure Code provides for the right to be defended by counsel, but not as
a guaranteed right. The framers of the Constitution have made it a constitutional right by
putting it beyond the power of any authority to alter it without the Constitution being
altered. This condition cannot be altered by any authority even on grounds of public
interest.

Preventive Detention

The history of preventive detention pre-dates the Constitution and can be traced back to
the Bengal State Prisoners Regulation, 1818, ever since 1950, the centre has been having
preventive detention laws except for two brief gaps, between January 1970 and May 1971
and then from March 1977 till September 1980. In September 1980 the President
promulgated the National Security Ordinance, 1980 which ultimately became the
National Security Act, 1980. In addition to that there are other Central and State laws
which provide for preventive detention. The Parliament has wide legislative jurisdiction
in the matter of preventive detention under entry 9, List I, for reasons connected with
defence, foreign affairs, or the security of India. Under entry 3 List III, Parliament as well
as the State Legislatures can concurrently make a law for reasons connected with security
of State, maintenance of public order, or maintenance of supplies and services essential to
the community. Parliament can also enact law on preventive detention in exercise of its
residuary power on any other ground.

Nature And Scope

Preventive detention means detention of a person without trial and conviction by a court,
merely on the basis of suspicion or reasonable probability in the mind of an executive
authority that the detenue has the potential of committing prejudicial act. Preventive
detention has been regarded as „sinister-looking‟ feature out of place in a democratic
Constitution, necessarily designed to prevent the abuse of freedom by anti-social and
subversive elements which might imperil the national welfare. It is a drastic power to
detain a person without trial and in many countries it is not allowed to be exercised
except in times of war or aggression. Preventive detention has not been unknown in other
democratic countries like Britain, U.S.A. and Canada, but limited as a war time measure.

The Indian Constitution recognises preventive detention in peace time also. It is

preventive, not punitive, in theory. The purpose of preventive detention is not to punish
an individual for any wrong done by him, but to curtail his liberty, with a view to
pre-empt him from indulging in conduct injurious to the society. The power of preventive
detention is a frightful and awesome power with drastic consequences affecting personal
liberty, which is the most cherished and prized possession of man in a civilized society.
The law of preventive detention must, therefore, pass the test not only of Article 22 but
also of Article 21. It is a power to be exercised with the greatest care and caution and the
courts have to be ever vigilant to see that this power is not abused or misused, inasmuch
as the preventive detention is qualitatively different from punitive detention and their
purposes are different. In case of punitive detention, the person has fullest opportunity to
defend himself, while in case of preventive detention, the opportunity that he has for
contesting the action of the Executive is very limited. Therefore, the "restrictions placed
on a person preventively detained must, consistently with the effectiveness of detention,
be minimal". The Constitution (Forty-Fourth Amendment) Act, 1978 amended Article 22
for introducing a few more safeguards in case of preventive detention which are as
follows:
(i) The maximum period for which a person may be detained without obtaining the
opinion of the advisory board has been reduced from three to two months. In all cases of
preventive detention beyond two months, advisory board is to be consulted. There will be
no preventive detention beyond two months unless the advisory board reports that there is
in its opinion sufficient cause for such detention.

(ii) An advisory board is to consist of a chairman and not less than two other members,
the chairman being a serving Judge of the appropriate High Court and the other two
members being the serving or retired High Court Judges. The board is to be constituted in
accordance with the recommendations of the Chief Justice of the appropriate High Court.

(iii) No person is to be kept in preventive detention beyond the maximum period

prescribed by any law made by the Parliament. However, the changes have not yet been
notified.

Safeguards Against The Order Of Preventive Detention

Art. 22 Clauses (4) to (7) lay down a few safeguards, and provide for minimum
procedure to be observed in case of preventive detention. Any law or administrative
action relating to preventive detention infringing these safeguards would be rendered
invalid as infringing the fundamental rights of the detainee. The scope and ambit of these
safeguards and those evolved by the judicial interpretation aim at protecting the liberty of
detenue against bureaucratic lethargy, insensitivity, red tape and casual approach.32

Communication Of Grounds Of Arrest Article 22 (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. Art. 22(5) casts a dual obligation on the
detaining authority:
(i) to communicate the grounds of detention to the detenu at the earliest;
(ii) to afford him the earliest opportunity of making a representation against the detention
order which implies the duty to consider and decide the representation when made, as
soon as possible.

But without getting information sufficient to make a representation against the order of
detention it is not possible for the detenue to make the representation. The import of Art.
22(5) is that all facts and particulars which influence the detaining authority in arriving at
its satisfaction must be communicated to the detenue. An effective representation is not
possible against the detention order unless copies of material documents considered and
relied upon by the detaining authority in arriving at his satisfaction to detain the detenue
were supplied to him. Grounds supplied to the detenue which are vague or in a language
with which he is not conversant would not provide him the effective knowledge of facts
and circumstances on which the order of detention was based. This will vitiate the order
of detention.

Non-consideration by the government of the representation filed by a counsel on behalf

of the detenue vitiates his detention. Representation by the counsel is representation by
the detenue himself and it ought to be considered by the authority concerned. The right of
a detenue to consult a legal adviser of his choice in not only confined for the purpose of
defence in a criminal proceeding but extends also for securing release from preventive
detention or filing a writ petition or prosecuting any claim or proceeding, civil or
criminal. This right is obviously included in the right to live with human dignity and is
also part of personal liberty. The detenue cannot be deprived of this right, except in
accordance with reasonable, fair and just procedure established by a valid law.

Delay In Making An Order Of Detention To Be Explained The right of representation

under Art. 22 (5) is a valuable constitutional right and is not a mere formality. Art. 22 (5)
makes it obligatory for the detaining authority to afford the earliest opportunity to the
detenue to make representation, and that must be necessarily construed to embody the
constitutional right to a proper and expeditious consideration of the representation by the
authority concerned. To make this right of representation effective it must be considered
and disposed of expeditiously by the concerned authorities otherwise the basic purpose of
affording the earliest opportunity of making the representation is likely to be defeated.

The court is required to be cautious and pragmatic while dealing with the question of
delay in making an order of detention. The Court has to identify live link between the
prejudicial activity and the order of detention. The only requirement is the satisfactory
explanation of the delay. The unexplained, undue long delay between the prejudicial
activity and making of the order of detention, renders the order of detention vulnerable,
liable to be quashed. There is no precise rule formulated in this regard. In case of undue
and long delay the court has to investigate whether the link has been broken in the
circumstances of each case. The delay in issuing the order of detention is a valid ground
for quashing an order of detention. Similarly, unsatisfactory and unexplained delay
between the date of order of detention and the date of securing the arrest of the detenue,
would throw considerable doubt on the genuineness of the subjective satisfaction of the
detaining authority. This may lead to a legitimate inference that the detaining authority
was not really and genuinely satisfied as regards the necessity for detaining the detenue
with a view to preventing him from acting in a prejudicial manner.

Effect Of Non-Application Of Mind When a person is enlarged on bail by a

competent criminal court, the validity of an order of preventive detention, based on the
very same charge which is to be tried by the criminal court, should be scrutinized with
great caution. In a case where a detenue is released on bail and is enjoying his freedom
under the order of the court at the time of passing the order of detention, such order of
bail must be placed before the detaining authority to enable him to reach at the proper
satisfaction. Otherwise, nonplacing and non-consideration of such vital material as the
bail order would vitiate the subjective decision of the detaining authority. The detention
order would be bad if the detaining authority is not made aware of the fact that the bail
application of the detenue was pending on the date when the detention order was passed.

Advisory Boards Another safeguard provided by Art.22(4) is that preventive detention

for over three months is possible only when an advisory board holds that, in its opinion,
there is sufficient cause for such detention. On a reading of clause (a) to Article 22(4) and
the proviso thereto and clause (b), it can be seen that what is prohibited is the detention of
a citizen for more than three months as per the law made by the State which contained no
provision for an Advisory Board as constituted as per clause (a) to Article 22(4) for
giving opinion as to whether the detention is with sufficient cause. Therefore, if the State
law contains no provision for such an Advisory Board, such law will be unconstitutional.
Article 22(4).- No law providing for preventive detention shall authorize the detention of
a person for a longer period than three months unless) 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
authorize 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). While interpreting Art. 22(4), the Supreme Court has spelled out the
rule that not only the advisory board should report about its opinion regarding sufficiency
of cause for the detention of the detenu within three months of the date of detention order,
but that the government should also confirm and extend the period of detention, beyond
three months, within the three months time limit. Clause (7) of Article 22 confers power
on the Parliament to make a law prescribing the maximum period for which any person
may, in any class or classes of cases, be detained under any law providing for preventive
detention. Article 22 (7)(a) came up for interpretation before the Supreme Court in
SambhuNathSarkar v State of West Bengal . Section 17- A of the Maintenance of Internal
Security Act that provided five of the six heads mentioned in the Constitution for which a
law of preventive detention could be made while dispensing the reference to an advisory
board, was declared to be unconstitutional by the Apex Court. It was clarified by the
Court that Article 22 (7)(a) being an exception to Article 22 (4) and also being a drastic
law by its very nature, should only be used in extraordinary and exceptional
circumstances. The Parliament, as per the Hon‟ble Court, was required to prescribe both
the “circumstances” under which and the “class of cases” in which the reference to the
Advisory Board could be dispensed with. It is to be noted that Artcle 22 (7)(a) empowers
only the Parliament and not a State Legislature for making such a law that does away
with the requirement of obtaining the opinion of the Advisory Board in appropriate cases.

Article 22 (7).- Parliament may by law prescribes

a) the circumstances under which, and the class or classes 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 in accordance with the
provisions of sub-clause (a) of clause (4);
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).

Conclusion
In order to maintain law and order, the police being the law enforcement agency have to
be given powers. Under the preventive detention legislation a person can be detained
without trial merely on the basis of reasonable suspicion in the mind of the executive of
having potential of committing prejudicial act. In order to avoid the probable chances of
misuse of this power against the accused or the detenue, as the case may be, certain
procedural safeguards have been afforded to the accused/detenue. Right to know the
grounds of arrest, right to consult and be defended by the lawyer of ones choice, right to
be brought before the magistrate within 24 hours, and in case of the detenue in preventive
detention the right of representation and the limit of three months detention etc. have
been provided as sufficient safeguards.
Summary
Protection is granted to the citizens of India against arrest and detention, as per Art.22.
However, in certain cases, in deviation from normal procedure, and subject to the further
provisions contained therein, arrest and detention can be affected. Arrest and detention
indubitably take away the right of personal liberty of a person which is a basic human
right. However, for the judicial process to take effect it becomes essential to curtail this
precious right. In order to keep a check on the police action and to delimit the power of
the state in enacting law relating to preventive detention, it becomes pertinent to have
some safeguards to ensure prevention of miscarriage of justice. The trinity of rights as
enshrined in Article 22(1) and (2) guarantee three basic rights to ensure fair trial -the
right to be made aware of the grounds of arrest as soon as an arrest is made, the right to
be produced before a Magistrate within twenty-four hours and the right to be defended by
a lawyer of own choice. Art. 22 (3) & (4) enact two exceptions to the fundamental rights
otherwise guaranteed to the arrested persons under Clause (1) & (2), i.e., these
protections are however, not available in case of an enemy alien and a person arrested or
detained under any law providing for preventive detention. Preventive detention means
detention of a person without trial and conviction by a court, merely on the basis of
suspicion or reasonable probability in the mind of an executive authority that the detenu
has the potential of committing a prejudicial act. Various safeguards have been provided
for the person detained under preventive detention legislations, like right of effective
representation, limit of three months period detention and opinion of advisory board to
consider cases where detention may be extended beyond three months. However, Clause
(7) of Article 22 confers power on the Parliament to make a law prescribing the
maximum period for which any person may, in any class or classes of cases, be detained
under any law providing for preventive detention, that too without the opinion of the
advisory board. This provision is not applicable to state legislations. The Forty-Fourth
Amendment sought to change the composition of the advisory board with a view to make
the board independent of the executive and to ensure objectivity while dealing with the
cases of preventive detention. However, these constitutional amendments have not yet
come into effect and Articles 22 (4) to (7) still continue to be the same as they stood
before the amendment.