Safeguard Against Arbitrary Arrest and Detention- Article 22

Introduction
 Article 22 constituted within the right to freedom is one of the parts of the
fundamental rights guaranteed under the constitution. This article is covered in two
major parts,
 protection and rights granted in case of arbitrary arrest also known as punitive
detention,
 and safeguards against preventive detention.

Rights of arrested persons under ordinary laws

(a) Right to be informed of the grounds of arrest

Section 50 of CrPC states that it is the duty of every police officer or any other person
authorized to arrest any person without a warrant, to let the person being arrested know
the grounds of arrest immediately. Non-compliance with this provision renders the arrest
illegal.

Article 22(1) states that any person who is arrested, cannot be detained in custody without
being informed of the grounds of any such arrest as soon as possible.

Both these laws clearly portray that no arrest can be made because it is lawful for the police
to do so. Every arrest requires reason and justification, apart and distinct from the power to
arrest.

In view of this, it was held in the case of Joginder Kumar v. State of U.P. that a detained person
should know the cause of his detention and is entitled to let any third person know the
location of his detention.

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

Article 22(1) also states that any person who is arrested has the right to consult at all times
and be defended by a lawyer of his own choice. This right is expanded right from the moment
of the person’s arrest.

There are a few rights which are not explicitly mentioned but are interpreted by the Supreme
Court in certain cases.

In the case of Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar, the courts
observed that a large number of people were arrested awaiting their trial in a court of law.
The arrests were made irrespective of the charge and its graveness. The accused were under
arrest, deprived of their freedom even before the commencement of their trial and the
charge actually being proved which stands unreasonable. The Supreme Court showing
concern over the matter interpreted that speedy trial is a constitutional right although it is
nowhere explicitly mentioned. It was held that an investigation should be held as soon as
possible and in no case is the state permitted to deny speedy trial on any grounds.
Further, the court also holds a constitutional obligation to provide free legal aid to every
indigent person under trial. Although this right is not mentioned under the purview of Article
22, it still witnesses a direct mention under Article 39(A) and is implicit in Article 21 of our
constitution.

The right of the accused to be defended by a lawyer of his own choice was violated in the
case of A.S. 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 of accusations on him, had a right to be defended in a court of
law.

(c) Right to be produced before a Magistrate

Article 22(2) ensures the right of the accused 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 without any unnecessary delay.

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

Article 22(2) also states that no person who is arrested should be detained for more than 24
hours without being produced before a magistrate or judicial authority and getting the
detention authorized. The mentioned 24 hours exclude the time of travel from the place of
arrest to the magistrate’s court.

In the case of State of Punjab v. Ajaib Singh, this right was infringed and thus the victim was
provided compensation as constitutional remedy. It was held that cases of arrest without
warrant require greater protection and production of the accused within 24 hours ensures
the legality of the arrest, not complying with which would deem the arrest unlawful.

In the case of C.B.I. v. Anupam J. Kulkarni, it was questioned whether the accused can be
remanded to police custody after the expiry of first 15 days. It was held that the magistrate
could authorize the detention if he deems it fit and reasonable, but the custody cannot
increase the period of 15 days on the whole. It is now known that to detain beyond a period
of 15 days, an advisory board has to report sufficient cause for the extension of such
detention prior to the expiration period as mentioned in clause 4 of Article 22.

Exceptions
Clause 3 of the Article 22 clearly states that none of the rights mentioned in clause 1 and 2
of the Article would be applicable for a person who is deemed to be an enemy alien and
anybody who is arrested or detained under the law providing for preventive detention.

Preventive Detention Laws

A person can be put in jail/custody for two reasons. One is that he has committed a crime.
Another is that he has the potential to commit a crime in the future. The custody arising out
of the latter is preventive detention and in this, a person is deemed likely to commit a crime.
Thus Preventive Detention is done before the crime has been committed.

The Preventive Detention Acts

There have been a few acts in history which have been framed by law in order to fill in the
gaps and provide provisions of detention.

Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)

This law was anti-terrorism law which gave wide power to the authorities for dealing with
national terrorism and socially disruptive activities. This Act provided that a person can be
detained up to 1 year without formal charges or trial. A detainee can be in custody up to 60
days without being produced in front of a magistrate but instead maybe produced to
executive magistrate who is not answerable to high court. This Act allowed the authorities
to withhold the identities of witnesses and secret trials. The police were given enhanced
powers for detention of suspects and the Act shifted the burden of proof on the accused
which led to abuse of this Act and adverse effect on the democracy of the country. This Act is
now repealed.

National Security Act, 1980

The purpose of this Act was to provide for preventive detention laws and matters connected
therewith. The authorities, through this Act, obtain the power to detain any person who
poses a threat to the security of the nation in any prejudicial manner. They can also detain
any foreigner and regulate their presence in the country. Under this Act an individual can be
detained without a charge for up to 12 months if the authorities are satisfied that the person
is a threat to national security. The detenu can neither impose compulsion for knowing the
grounds of detention nor can get a lawyer during the trial. The NSA has repeatedly come
under criticism for the way it is used by the police. The Act differs from normal detention as
it abrogates all rights available to the detenu in normal circumstances.

Prevention of Terrorism Act (POTA), 2002

This Act aimed at strengthening anti-terrorism laws in India. This Act replaced TADA. It
defined what activities could constitute a terrorist act and who a terrorist was. In order to
ensure no violation of human rights and misuse of power, certain safeguards were also
installed within the Act. The provisions were all similar to the ones provided in TADA. Right
after the enactment of this Act it was alleged that this law was grossly abused, hence
repealing it after two short years.

Constitutional safeguards against Preventive Detention Laws

Article 22 further deals with certain rights which are provided in case of preventive
detention.

(a) Review by Advisory Board: Clause 4 of the article states that no law framed for
preventive detention gives authority to detain any person for more than 3 months unless;
an advisory board reports a sufficient cause for such detention. The people on the advisory
board should be equally qualified as that of a judge of the high court. The report needs to be
submitted before the expiration of said 3 months.

(b) 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 grounds of detention to the person as soon as possible.

A person already in custody can be detained when there are reasonable and sufficient causes
to do so. The focal problem being that in cases of preventive detention there is no way to
check whether the cause of detention is just and reasonable until it is presented to the
advisory board which is applicable after the stretch of 3 months.

(c) 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
representation to the person. The authority providing the detention order shall afford to the
person the earliest opportunity of making a representation against the order.

Conservation of Foreign Exchange, Prevention of Smuggling Activities Act (COFEPOSA),

1974 and Article 22(5)
This Act was brought into force in 1974 and it gave wide powers to the executive to detain
individuals on apprehension of their involvement in smuggling activities. The section 3 of
this Act is shared with clause 5 of Article 22 which states that the ground of detention should
be communicated to the detenu within minimum five or a maximum of fifteen days. In no
case should it be delayed beyond fifteen days. It must be completely furnished to the detenu,
including all the facts and should not be only bare recital of the grounds. Any lapse within
this provision would render the detention order void. This Act still stands valid.

No time limit prescribed for disposal of representation: The article does not provide any
information about the method of dealing or disposing the representation made by the
detenue..

Exception under Article 22(6)

Clause 6 of the article is similar in nature to clause 3 as it stands an exception to clause 5 and
states that the detaining authority is not mandatorily required to disclose any such facts
which it considers to be against the public interest to disclose.

Subjective satisfaction of the detaining authority

Clause 7 of the article is the most regressive of all clauses; it authorizes the parliament to
describe the circumstances and categories of cases where detention of a person may be
extended beyond three months without the opinion of the advisory board. It can also
regulate the maximum period for which anyone may be detained under laws providing for
preventive detention. The parliament also exercises hold on the methodology applied by the
advisory board in the enquiry of detention cases.