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SAFEGUARDS AGAINSTR
ARREST AND T O ARBITRARY

T U DETENTION
(ARTICLE 22)

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 RELATION BETWEEN ARTICLE 21 AND
ARTICLE 22

• Article 21 states that no person shall be deprived of his life and personal liberty except in accordance
to procedure established by law and on the other hand Article 22 provided certain basic procedural

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requirement which must be adopted before a person’s liberty is deprived.
• Hence Article 21 and Article 22 complement each other. For the larger interest of the public and

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maintaining rule of law, there is a need to restrain people’s liberty on sound grounds.

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 SCOPE OF ARTICLE 22

• Article 22 grants protection to persons who are arrested or detained.

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• Article 22 deals with:

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a) Persons arrested under ordinary laws – Article 22(1) to Article 22(3)

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b) Persons detained under Preventive detention laws – Article 22(4) to Article 22(7)

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 RIGHTS OF PERSONS ARRESTED
UNDER ORDINARY LAWS

• Clauses(1) and (2) of Article 22 guarantees following four rights on a person who is arrested for
any offence under an ordinary law:

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i) Right to be informed of the ground of arrest – Any person who is arrested, cannot
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be detained in custody without being informed of the grounds of any such arrest as soon as

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possible.

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 In Joginder Kumar v State of U. P., the SC laid down guidelines governing arrest of a person

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during the investigation. The court held that a person is not liable to be arrested merely on the
suspicion of complicity in an offence. There are must be some reasonable justification in the
opinion of the police officer effecting the arrest that such arrest was necessary and justified.

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ii) Right to be defended by a lawyer of his own choice – Any person who is arrested
has the right to consult at all times and be defended by a lawyer of his own choice.

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 In Hussainara Khatoon v Home Secretary, State of Bihar, SC held that it is the constitutional

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obligation to provide free legal aid to every indigent person under trial. Although this right is not

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mentioned under the purview of Article 22, it is provided under Article 39(A) and is implicit in

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Article 21 of our constitution.

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 In AS Mohammed Rafi v State of Tamil Nadu, where the Bar Association of Coimbatore passed a
resolution that none of its members would defend the policemen who had allegedly assaulted some
lawyers. Such resolutions stood illegal as the court observed that every person, regardless of the type

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of accusations on him, had a right to be defended in a court of law.

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iii) Right to be produced before a Magistrate – When a person is arrested, the person or
police officer making the arrest should bring the arrested person before a magistrate or judicial officer

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without any unnecessary delay. This is also supported by Section 56 of the CrPC. This right protects
the accused from being detained on wrong or irrelevant grounds.

iv) No
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detention beyond 24 hours except by order of the Magistrate

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 EXCEPTIONS TO THE RULE
CONTAINED IN ARTICLE 22(1) AND
ARTICLE 22(2)

i) An enemy alien

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ii) A person arrested and detained under a Preventive Detention law.

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 PERSONS DETAINED UNDER
PREVENTIVE DETENTION LAWS

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

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• Preventive detention means detention of a person before the said offence is actually comitted. Its
purpose is not to punish a person for a past offense but to prevent him from committing an offense in

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the near future.

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• The sole justification of such detention is suspicion or reasonable probability of the detenu committing

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some act likely to cause harm to the society or endanger the security of the Government.

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• A.K Gopalan v State of Madras – Justice Patanjali Shastri explained the necessity of such provision
and stated that it is designed to prevent the abuse of freedom by anti-social and subversive elements

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which might imperil the national welfare.

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 CONSTITUTIONAL SAFEGUARDS AGAINST
PREVENTIVE DETENTION LAWS

• Clauses (4) to (7) guarantee the following safeguards to a person arrested under Preventive Detention Law :

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i) Review by advisory board – Clause 4 of the article states that no law framed for preventive

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detention gives authority to detain any person for more than 3 months unless an advisory board reports a

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sufficient cause for such detention. The people on the advisory board should be equally qualified as that of

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a judge of the high court. The report needs to be submitted before the expiration of said 3 months.

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However, Parliament may be law prescribe circumstances in which a person may be detained for a period

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longer than 3 months

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ii) Communication of grounds of detention to detenu - Clause 5 of the article states that any
authority while detaining any person under law providing for preventive detention shall communicate the

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grounds of detention to the person as soon as possible. The ground of detention should have a rational

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connection with the object which the detenu is prevented from attaining. The communication should
provide all the material facts related to the ground and should not be a mere statement of facts. However,
The detaining authority is under no obligation to provide the grounds of detention to detenu prior to his
arrest nor the authority is required to disclose such facts which such authority considers to be against the
public interest to disclose.
iii) Detenue’s Right of representation: Clause 5 of the article also states that the grounds
of the detention should be communicated as soon as possible in order to enable the right of

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representation to the person.

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 SUPREME COURT’S GUIDELINES RELATING TO
DETENTION UNDER PREVENTIVE DETENTION
LAWS

A.K.Roy v UOI (1982) :

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 Family members of the detenue should be informed

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 Detenu must be detained in a place where he habitually resides unless exceptional situation requires
detention at some other place.

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 Detenu must be entitled to books, writing materials, own food and visit from family and friends.

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 Detenu must be treated according to the civilized norms of human dignity.
 Detenu must be kept separate from those who are convicted.

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Maneka Gandhi v UOI – Article 22 is not a complete code in regard to laws providing for
preventive detention. A law relating to preventive detention must satisfy not only the requirements

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of Article 22 but also the requirements of Article 21 of the Constitution. In other words, the
procedure prescribed under the preventive detention law must be just, fair and reasonable.

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