Article 22: Symbiosis Law School, Pune

Article 22
Symbiosis Law School, Pune.

Protection Against Arrest
 Article 22 was initially taken to be the only safeguard
against the legislature in respect of laws relating to
deprivation of life and liberty protected by Art. 21.
 Impact of Maneka’s Judgment.
 Earlier “the procedure established by law” for depriving a
person of his life or liberty under Art. 21 drew its
minimum contents from Article 22.
 Position reversed: The matter now on which Article 22 is
silent now draw their contents from Article 21.
 All preventive detention laws are required to confirm the
requirements of Article 21 and 22 both.
Rights of Arrested Person [clauses (1) and
(2) of Art. 22]
 Clauses (1) and (2) confer four rights upon a person who
has been arrested.
 Firstly, he shall not be detained in custody without being
informed, as soon as may be, of the grounds of his arrest.
 Secondly, he shall have the right to consult and to be
represented by a lawyer of his own choice.
 Thirdly, every person who has been arrested has the right
to be produced before the nearest magistrate within 24
hours of his arrest. ..excluding the time required for
journey.
 Fourthly, he is not to be detained in custody beyond the
said period of 24 hours without the authority of the
court.
 If the remand orders are obtained by the police from the
magistrate or a judge without producing the arrested
person before magistrate within 24 hours, Article 22(2) is
violated.
 Article 22(1) is meant to afford the earliest opportunity
to the arrested person to remove any mistake,
misapprehension or misunderstanding in the mind of the
arresting authority and also to know accusation against
him, so that he can exercise his second right as to
consulting a legal practitioner of his choice and to be
defended by him.
 Jogindar kumar v. State of UP, (1994) 4 SCC 260…Court
provided guidelines as to the recognition and protection
of these rights.
 Clause (2) of Art. 22 provides the next and most material
safeguard that the arrested person must be produced
before a magistrate within 24 hours of such arrest so that
magistrate without delay would apply his mind to the
case. .. Can stand as a justification as to further detention
in jail.
 Section 56 and 303 of Cr P C are analogous to this
Constitutional guarantee.
 Taking into consideration wide misuse of power of arrest
and detention SC in D. K. Basu vs. State of W.B.(1997)1
SCC416…issued directions and guidelines for arrest and
detention in police custody… Court has also recognized
the right of arrestee against torture and entitlement of
compensation for its violation.
 State of M P v. Shbharam, AIR 1966 SC 1910… in this case
respondents were arrested on a complaint of criminal
trespass… arrest was effected under the provisions of
the code of Criminal procedure and the trial was held in
Nyaya Panchayat, functioning under MP Panchayat Act
which sentenced them to a fine of Rs 75 each.
 H. C. quashed the conviction in revision on the ground
that S. 63 of the said Act is ultra vires in as much as it
provided that no lawyer could plead a case before a
Nyaya Panchayat.
 Hidayatullah, J. pointed out that “A person arrested and
put on his defense against a criminal charge which may
result in penalty, is entitled to the right to defend himself
with the aid of counsel and any law that takes away this
right offends against the Constitution. ”
Exception: Clause (3) of Art. 22
 Clause enacts two exceptions… the fundamental right

guaranteed to arrested persons by clauses (1) and (2) do
not apply;
 (a) to enemy aliens, and
 (b) to persons arrested or detained under any law
providing for preventive detention.
Preventive detention: Clause (4) to (7) of Art.
22
 Clauses (4) to (7) relate to preventive detention…
subject of preventive detention is mentioned under Union
List (Sch. VII, List I, Entry 9) as well as in the Concurrent
List (Sch.VII, List III, Entry 3).
 Both Center and State can legislate. However, the
Center’s ambit is larger than that of the States as the
Center can have a preventive detention law for reasons
connected with defense, foreign affairs and security of
India, in addition to security of a state, the maintenance
of public order or of supplies and services essential to
the community.
 Though the Constitution recognizes the necessity of laws
as to preventive detention, it also provides in clauses (4)
to (7) certain safeguards to mitigate their harshness by
placing fetters on legislative power conferred on the
legislature and to prevent misuse of the power by the
executives.
Safeguards
 Various safeguards provided to the detenus under clauses
(4) to (7) of Art. 22.
 (1) Review by Advisory Boards:
 A detenu under preventive detention is not detained after
trial and conviction of an offence by a competent court.
 To provide safeguards against arbitrary detention, clause
(4) states that no law providing for preventive detention
shall authorize detention…more than three months
unless an Advisory Board constituted of persons who are,
or have been, or are qualified to be High Court Judges
has reported before the expiration of the said period of
three months, that there is sufficient cause for such
detention.
 If advisory board … reports… not justified … Govt. is
duty bound to revoke it. .. Once reported that it is
justified then detaining authority determine the period of
detention. .. Board has no say in determining the period
of detention. ... The use of term ‘such detention’ reflects
it.
 It is clear from (4) and (7) that, except where there is a
Central Act to the contrary passed under clause 7(a), to
permit detention for a period of three months only and
detention in excess of that period is permissible only in
those cases, where an advisory board is setup under
relevant statute, has reported to the sufficient cause for
such detention.
 Clause 4(b) lays down that detention cannot exceed in
any case beyond the maximum period prescribed by a law
of Parliament for that class of detenu.
 In case the opinion of the board is not obtained within 3
months of detention, detention becomes illegal and the
detenu is entitled to be released.
 In A. K. Gopalan’s Case, majority held that clauses (4) and
(7) provides for two powers which are alternative or
independent. (1) to make law providing for longer
detention with provision of Advisory Board. (II) to make
law providing for a longer detention without an advisory
Board.
 This view was rejected by SC in Shambhu Nath Sarkar vs.
State of W. B. (1973)1 SCC 856… It was observed that if
this view is accepted, clause 4(a) would be totally nullified
by clause 4(b) read with clause 7 (a)… the construction
under which clause 4(b) read with clause (7) lays down an
exception to clause 4(a) harmonises both the clauses and
brings out the true intention in enacting the two clauses.

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Article 22

Symbiosis Law School, Pune.

 Clause enacts two exceptions… the fundamental right

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