ARTICLE 22

Article 22. Protection against arrest and detention in certain cases

(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

(2) Every person who is arrested and detained in custody shall be produced before the
nearest magistrate within a period of twenty four hours

(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

(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:

(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

(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

(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 );
(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)

In the case of State of Madhya Pradesh v Shobharam , 1966 it was held that the rights
given by Article 22(1) and (2) are absolute in themselves and do not depend on other laws.
Even though Articles 21 and 22 go together but they cannot be treated as inter-related or
inter-dependent. 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. Art. 22 (3) specifies 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.

It has been held, in the case of Hussainara Khatoon vs. State of Bihar,1979 that right to
free legal aid at the cost of the State(Article 22) to an accused who cannot afford legal
services for reasons of poverty, indigence or incommunicado situation is a part of fair, just
and reasonable procedure under Article 21 of the Indian Constitution.It was also held that he
right to speedy trial is an inalienable right under Article 21 of the Indian Constitution.

In the case of D.K. Basu vs. State of West Bengal,1997 the Supreme Court laid down the
guidelines to be followed by the Central and the State investigating authorities in all cases of
arrest and detention.

 The petitioner wrote a letter addressed to the Chief Justice drawing his attention to
certain news items published in the Telegraph and the Indian express, regarding
deaths in police lockups and custody and this letter was treated as a writ petition by
the Court.

 The court not only issued the guidelines but, also went to the extent that any failure by
the officials to comply to such guidelines would not only subject them to
departmental actions but would also amount to contempt of Court.
Some basic guidelines were:

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 counter-signed by the arrestee and it shall

also contain the time and date of arrest.

3. The arrestee or the detenue who is in custody in a police station or

interrogation centre 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 medical examination of the arrestee

every 48 hours while he is detention 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.

In NandiniSathpathy v. P.L.Dhani 1978 , 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.

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.
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. In the matter of
A.K.Gopalan v State of Madras AIR 1950 it was stated that: 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.

The Constitution (Forty-Fourth Amendment) Act, 1978 amended Article 22 for

(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 and 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.

Sophia GulamMohd. Bhan v State of Maharashtra 1999 held: An effective representation

In Sunil Batra v. Delhi Administration, the petitioner was sentenced to death by the Delhi
session court and his appeal against the decision was pending before the high court. He was
detained in Tihar Jail during the pendency of the appeal. He complained that since the date of
conviction by the session court, he was kept in solitary confinement. It was contended that
Section 30 of Prisoners Act does not authorize jail authorities to send him to solitary
confinement, which by itself was a substantive punishment under Sections 73 and 74 of the
Indian Penal Code, 1860 and could be imposed by a court of law and it could not be left to
the whim and caprice of the prison authorities. The Supreme Court accepted the argument of
the petitioner and held that imposition of solitary confinement on the petitioner was violative
of Article 21.

A. K. Roy, Etc. v/s Union of India 1981, The petitioner in the present case is Shri AK Roy
who is a Marxist member of the parliament, while the respondent is the Union of India. The
Supreme Court was approached through Article 32 of the Indian Constitution whereby the
validity of the National Security Ordinance, 1980, which was passed in order “to provide for
preventive detention in certain cases and for matters connected therewith” The Act was held
to be validbut court issued some guidelines:

 Inform his relatives or friends in writing about his detention along with place of
detention.
 Must be detained in place he resides habitually and at some other place in exceptional
circumstances only
 No punitive treatment
 He is entitled to his books, writing material, home food, friends.