ARTICLE 22

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Introduction

The right to personal liberty is protected by Article 22 of the Indian Constitution, which also provides protections against unlawful detention or arrest. One of the essential rights that Indian citizens are given is this one, according to this article.

Both citizens and non-citizens are covered by Article 22, which offers certain crucial protections in the event of an arrest or detention. This clause’s principal goal is to guarantee that arbitrary arrests and detentions do not violate people’s personal liberties. However, these protections do not apply to

(a) hostile aliens
(b) people detained in advance under the statute.

What does Article 22 states ?

 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 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

(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 ) Right against Exploitation.

Clauses of Article 22
  • According to Article 22(1), anybody who is arrested and imprisoned has the right to be informed of the reasons for their detention as well as the right to contact and be represented by a lawyer of their choosing. This clause guarantees that an arrested individual has the right to legal representation and that they are not kept in the dark regarding the cause of their detention.
  • According to the first right, the person who has been arrested or detained must be notified of the reason(s) for the arrest or detention in order to ensure that it was not arbitrary.
  • In the case of Joginder Kumar v. State of U.P., it was determined that a person who is imprisoned should be aware of the reason for his custody and has the right to disclose the location of his incarceration to any third party.

The second right gives the detained individual the opportunity to choose the lawyer who will defend them in court. A person has access to this right as soon as they are placed under arrest. As a result, the individual who was arrested can get a fair trial. In Hussainara Khatoon v. State of Bihar, the Supreme Court determined that the right to a prompt trial is a fundamental constitutional right.

  • According to Article 22(2), anybody who is imprisoned after being arrested shall appear before the closest magistrate within 24 hours of their detention, discounting the time needed for transportation. This clause aims to avoid arbitrary detention and guarantee that the person in custody is brought in front of a judicial authority within a reasonable amount of time.

Both Section 56 and Section 167 of the IPC support this provision.

This provision also specifies that no individual who has been arrested should be held for more than 24 hours without first appearing before a magistrate or other judicial official and obtaining Section 167 authorization for the detention. The time spent traveling from the scene of arrest to the magistrate’s court is not included in these 24 hours.

  • A person who is deemed to be an enemy alien and anyone who is arrested or detained under a law providing for preventive detention are exempt from the rights mentioned in clauses 1 and 2 of Article 22, according to Article 22(3), which is an exception to those clauses.
  • According to Article 22(4), preventative detention is only permitted in the situations listed in Articles 22(3) and (4). A person is held in a preventive detention setting in order to stop them from committing a crime in the future. This clause makes guarantee that the government won’t abuse preventative detention to crush dissent or resistance.
  • According to Article 22(5), when someone is detained as a result of an order made under a law that permits preventive detention, the authority issuing the order must promptly inform that person of the reasons for the order’s creation and provide him with the earliest opportunity to object to it.

In any statute allowing for preventative detention, Parliament may by law specify the conditions under which a person may be held for more than three months without first seeking the advice of an advisory board.

  • According to Article 22(6), Clause (5) does not oblige the authority making any such order to reveal material that it considers to be in opposition to the general public’s interest and opinion.
  • According to Article 22(7), the Parliament may impose by law-

(a) the situations and categories of instances in which detaining someone for more than three months while they are in custody necessitates preventive detention without first attempting to seek the advice of an advisory board in accordance with clause (4) sub-clause (a).

(b) the maximum amount of time that may be held in accordance with any law that permits preventative detention in any class or classes of instances.

Landmark cases on Article 22
  • In the case of A.K. Gopalan v. State of Madras, the Supreme Court ruled that the right to personal liberty was restricted to the legal process and that the court was not authorized to review the legality of an arrest or imprisonment in any other way. Many people condemned this decision for being excessively limiting to individual liberties.
  • The Supreme Court ruled in Menaka Gandhi v. Union of India that the right to personal liberty encompassed substantive due process in addition to the legal process as well. This judgment was viewed as a big win for individual rights since it marked a considerable change from the Gopalan judgment.
  • The Supreme Court ruled in State of West Bengal v. Anwar Ali Sarkar that the access to legal counsel is a basic right and that the government is required to offer legal assistance to those who cannot pay it. This choice played a key role in guaranteeing that everyone, regardless of resources, had access to legal representation.
  • The Supreme Court issued guidelines for the arrest and detention of a person in the case of D.K. Basu v. State of West Bengal, which included the requirements that the arresting officer must inform the person of their right to legal representation and that they must be informed of their arrest by a relative or friend. This choice was crucial in ensuring that an individual was arrested and detained in a fair and compassionate way.

2 COMMENTS

  1. […] provision comes into play in the absence of legislation enacted by the Parliament, as mandated by Article 22(7). Until such legislation is enacted or until one year from the commencement of the Constitution, […]

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