Article 22 of the Indian Constitution

 Article 22 of the Indian Constitution

Article 22 enshrined in Part III of Indian Constitution deals with protection against arrest and detention. One of the most important dangers to the democracy is detention and arrest because it is an eclipse on other fundamental rights also. Hence, realizing this fact our Constitution makers have provided adequate provisions in Constitution ensuring protection against arrest and detention. Article 22 is available to citizens as well as non-citizens. 

Article 22: Protection against arrest and detention in certain cases 

Article 22(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. 

Thus, three rights included in this clause are-

a) Right to be informed of grounds of arrest:

This is necessary to enable the arrested person to know the grounds of his arrest and to prepare for his defence. 

In the case of Joginder Kumar 🆚 State of UP, 1994 SC, SC laid down guidelines regarding arrest of a person during the intoxication. This is intended to strike a balance between the needs of Police on one hand and the protection of human rights of citizens from oppression and injustice at the hands of law enforcing agencies. SC further observed that a person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the police officer effecting the arrest that such arrest was necessary and justified. 

b) Right to consult with the lawyer of his own choice 

c) Right to be defended by a lawyer of his own choice

In case of Hussainara Khatoon 🆚 Home Secretary, State of Bihar, 1979 SC, SC held that it is the constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indeligence or incommunicado situation, to have free legal aid to him by the State ans State is under constitutional duty to provide a lawyer to such person if the needs of justice so required. If free legal services are not provided, the trial itself may be vitiated as contravening Article 21.

Resolution of Bar Council not to defend some persons in criminal cases:

Case: AS Mohammed Rafi 🆚 State of Tamil Nadu, 2011

The Bar Association of Coimbatore has passed a resolution that no member of the Coimbatore Bar would defend the accused Policeman in a case. 

Held: The Court held that the resolution of several Bar Associations all over India that they would not defend a particular person or persons in particular criminal case are wholly illegal against all traditions of Bar and professional ethics. 

Article 22(2): Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 224 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. 

Thus, rights provided to arrested person under this clause are-

a) Right to be produced before a Magistrate - 

The arrested person must be produced before the Magistrate within 24 hours of his arrest. 

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

If there is necessity of detention beyond 24 hours, it is only possible under judicial custody. The expression "arrest and detention" in Article 22(1) and22(2) was held not to apply to a person arrested under a warrant issued by the court on a criminal or quasi- criminal complaint or under security proceedings. 

Case: State of Punjab 🆚 Ajab Singh, 1953 SC

Held: SC held valid the Abducted Person (Recovery and Restoration) Act, 1949 under which an abducted person could be arrested and delivered to the officer-in-charge of the nearest camp. The arrest of an abducted person under the Act was held not to constitute "arrest and detention" because the person was not accused of any offense of a criminal or quasi-criminal nature. 

Case: CBI 🆚 Anupam J Kulkarni, 1992 SC

Held: SC held that when a person is arrested under Section 57 of CrPC, he should be produced before the nearest Magistrate within 24 hours. Under Section 167 of CrPC, the judicial Magistrate can authorise the detention of the accused in police custody or judicial custody from time to time but the total period of detention in police custody can't exceed 15 days in the whole. After the expiry of the first period of 15 days, the further remand can only be in judicial custody as per provision of Section 167 of CrPC. The Court can not further remand the accused in the police custody even if investigation is not completed. 

Exceptions - 

Article 22(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. 

An enemy alien may, however, seek tge protection under clauses (4) and (5) of Article 22, if arrested under a law of Preventive Detention, but subject to law passed by the Parliament. 

Constitutional safeguards against Preventive Detention Laws-

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

a) Review by Advisory Board ;

b) Communication of ground to the detenue;

c) Detenue's right of representation. 

Article 22(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:

Case- Shibban Lal vs State of UP, 1954 SC

Held: If in the opinion of Advisory Board the detention was not justified, the Government was bound to revoke the detention order. 

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 subclauses (a) and (b) of clause (7).

Case: Hitendra Vishnu Thakur 🆚 State of Maharashtra 

Held: The designated court has no power to remabd a Terrorist and Disruptive Activities (Prevention) Act, accused to custody if the police fails to complete investigation within 6 months to 1 year. 

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.

Thus, two rights are guaranteed under this clause:

a) To know the grounds of detention;

b) To make representation against order. 

Right to know the grounds of arrest - 

Case: Kubic Daruz vs Union of India, 1990 SC

Held: SC held that the grounds are verbally explained to the detenue and nothing in writing is left with him in a language which he understands, the purpose is not served and the constitutional mandate in Article 22(5) is infringed. 

One of the grounds unsustainable - 

Case: Shafique Ahmad 🆚 District Magistrate, Meerut, 1990 SC

Held: SC held that eeven one of the grounds found to be bad and unsustainable, is a detention under National Security Act, was held to be not vitiated if remaining grounds are valid. 

Detention of a person already in custody - 

Case: Huidrom Konungjapo Singh 🆚 State of Manipur, 2012 SC

Held: There is no prohibition in law to pass the detention order in respect of a person who is already in custody in respect of criminal case. However, if the detention order is challenged, the detaining authority has to satisfy the court that the authority was fully aware of the fact that the detenue was in custody. 

Detenue's right of representation 

Case: KM Abdullah 🆚 Union of India, 1991 SC

Held: SC held that there is no constitutional mandate under clause 5 of article 22 to consider the representation made by the detenue before confirmation of detention order and in the absence of any statutory provision requiring consideration of representation prior to confirmation of detention order, it can be considered after the confirmation of detention order. 

Article 22(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. 

Case: Puran Lal Lakhan Lal 🆚 Union of India, 1958 SC

Held: SC held that under Article 22(6) disposal of the fat which are considered to be against public interest may not be furnished to the detenue. Hence, it follows that both the obligations to furnish particulars and the duty to consider whether the disclosure of any fact involved there in is against public interest are vested in the detaining authority. 

Article 22(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 in accordance with the provisions of sub-clause (a) of clause (4);

Sub-clause (a) shall stand omitted by the Constitution (44th Amendment Act), 1978,(which is yet not in force, date to be notified later on).

(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

Sub -clause (b) shall stand relettered as sub-clause (a) by s. 3, ibid. (date yet to be notified). 

(c) the procedure to be followed by an Advisory Board in an inquiry under [sub-clause (a) of clause (4)].

                                 - Anjali Singh & 

                                   Deepak Kumar 

                           (University of Allahabad)