Article 22 in Constitution of India

 

Article 22 in Constitution of India

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 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:

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 sub-clauses (a) and (b) of clause (7).

(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).Editorial Comment - Article 22 of the Indian Constitution provides certain safeguards regarding arrests and detentions. It aims to protect the rights and liberties of individuals who are arrested or detained by the authorities. 

Protection against Arrest and Detention - Article 22 safeguards individuals against arbitrary arrest and detention. It ensures that no person can be arrested or detained without being informed of the grounds for such arrest or detention.

Right to be Presented before Magistrate - Article 22 guarantees that an arrested person must be produced before the nearest magistrate within 24 hours of their arrest. This provision aims to prevent unlawful and prolonged detention without proper judicial oversight.

Right to Consult a Legal Practitioner - Article 22 grants the right to an arrested person to consult and be defended by a legal practitioner of their choice. This right helps ensure that individuals have proper legal representation during the process of arrest and detention.

Communication of Grounds for Arrest - An arrested person must be informed of the grounds for their arrest and detention. They have the right to know the reasons behind their arrest, enabling them to effectively exercise their legal rights.

Preventive Detention - Article 22 also addresses the issue of preventive detention, which allows the authorities to detain individuals for preventive reasons, such as the maintenance of public order or national security. It imposes certain additional safeguards, such as the requirement for the grounds of detention to be communicated and the provision for a review by an advisory board.

It's important to note that Article 22 provides certain exceptions during times of emergency, such as during a proclamation of Emergency by the President of India. In such circumstances, certain restrictions on the rights and safeguards under Article 22 may be imposed.

In the case, D.K. Basu v. State of West Bengal (1997), ​ A Public Interest Litigation was filed by Dr Dilip Kumar Basu related to a case of Custodial violence. The Supreme Court laid down strict guidelines related to custodial violence and deaths. These guidelines are to be followed in all cases of arrest and detention until legal provisions are made for the safeguard of a person in custody.ReferencesIndianKanoon Social Law Today Academic Article

[Editorial comment-The Constitution (Forty-Fourth Amendment) Act, 1978, repealed Article 19 (1) (f) and also took out Article 31(1) has been taken out of Part III and made a separate Article 300A in Chapter IV of Part XII. This amendment may have taken away the scope of speedy remedy under Article 32 for the violation of Right to Property because it is no more a Fundamental Right. Making it a legal right under the Constitution serves two purposes: Firstly, it gives emphasis to the value of socialism included in the preamble and secondly, in doing so, it conformed to the doctrine of basic structure of the Constitution. Also Refer]