Introduction

Article 21 of the Constitution requires some procedure established by law to deprive a person of his life or personal liberty. However, the procedure must not only be provided by a law, but it must also be just, proper, due, fair, appropriate and reasonable. Art. 22 of the Constitution contains some minimum procedural requirements which must be complied with by such procedure.

The protection of the individual from operation and abuse by the police and other enforcement officers is a major interest in a free society. Denying a person of his liberty is a serious matter. In view of this, it can be said that an illegal arrest of a person causes incalculable harm by way of loss of his reputation.

In State of M.P. v. Shobharam, (1966), the Supreme Court said that, Art. 22 does not apply to cases where arrest or detention is under a warrant of a Court. In such case, such arrest or detention is according to the procedure established by law.

Object of Article 22 : The object of Art. 22 is to safeguard rights of the people and to avoid any miscarriage of justice on the part of the State. It has provided certain procedural safeguards to an individual against the arbitrary power of the executive. Here object is to check or correct the use of power by the executive in arresting or detaining a person.

Protection against arrest and detention (Art. 22) :

Art. 22 is titled as ‘protection against arrest and detention in certain cases’. It incorporates procedural safeguards against arrest or detention which are available to an individual in following two cases.

(1) where the arrest is made under the ordinary law relating to commission of offences

(2) where the detention is made under a law providing for preventive detention.

Art. 22 : Protection against arrest and detention in certain cases :-

Clause (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

Clause (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

Safeguards against arrest – Art. 22(1) & (2) :

Clauses (1) and (2) of Art. 22 guarantee four rights to a person who is arrested for any offence under an ordinary law.

(a) Right to be informed, as soon as may be of the grounds of the arrest.

(b) Right to consult and to be defended by a legal practitioner of his choice.

(c) Right to be produced before the nearest magistrate within 24 hours of arrest.

(d) Right not to be detained in custody beyond 24 hours without the authority of the magistrate.

In Hussainara Khatoon v. State of Bihar, (1979), the Supreme Court has held that, if the accused person is unable to engage a lawyer because of poverty, then State should provide free legal aid to him at the expenses of the State. Right to free legal aid is a fundamental right under Art. 21 of the Constitution.

In a notable judgment in Joginder Kumar v. State of U.P., (1994), the Supreme Court laid down guidelines governing arrest of a person during the investigation. The Court has held that,the person is not liable to be arrested merely on the suspicion but there must be some reasonable justification in the opinion of the Police officer.

Before that, in a significant judgment in C.B.I. v. Anupam Kulkarni, (1992), The Supreme Court held that, there cannot be detention of a person in police custody after the expiry of fifteen days. If the investigation is not completed within 90 days in case of serious offences or 60 days in case of other offences, then the accused has to be released on bail as provided under section 167(2) of Criminal Procedure Code.

Clause (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

Exception – Art. 22 (3) :

Clause 3 of Art. 22 provides that the safeguards guaranteed by clauses (1) & (2) of Art. 22 are not available to the following persons.

(1) any person who is for the time being is an enemy alien.

(2) any person who is arrested or detained under any law providing for preventive detention.

Safeguards against detention – Art. 22 (4) to (7) :

Clauses (4) to (7) of Art. 22 provide procedure which is to be followed if a person is arrested under the law of preventive detention.

Preventive detention means the detention of a person without trial. It is contradistinction to the word ‘punitive’. It is not a punitive, but a precautionary measure which can be resorted with a view to prevent commission of an offence in future. If any person is causing danger to the society, then by detaining him he may be prevented from doing it.

Object :

The object of preventive detention is not to punish a man for having doing something, but to intercept(obstruct) him before he does it or to prevent him from doing it. The satisfaction of the concerned authority is a subject to satisfaction in such a matter.

Clause (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:

Clause (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

Clause (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

Clause (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)

Clauses (4) to (7) guarantee the following safeguards to a person arrested under the prevention detention law.

Review by Advisory board – Art. 22 (4) :

Clause (4) provided that, no law providing for prevention detention shall authorize the detention of a person for a longer period than three months unless the Advisory Board constituted of a person, who are or have been qualified to be High Court Judge has reported before the expiration of the said period of three months that there is, in his opinion, sufficient cause for such detention. (By the 44th Amendment Act, 1978, the maximum period of three months has been reduced to two months.)

The Supreme Court has held in Puranlal Lakhan Lal v. Union of India, (1958) that the Advisory Board’s function is not to determine the period of detention but only to determine whether the detention by itself is justified.

In A. K. Roy v. Union of India, (1982), Court held that the function of the Advisory Board is merely to report on the point whether there is sufficient cause for the detention. The Board is not concerned as to how long the person should be detained.

Rights of the detenu – Art. 22 (5) :

Art. 22 (5) has given two important rights to the detenu –

(1) The authority making the order of detention must as soon as may be communicate to the person detained the grounds of his detention.

(2) The detenu must be given the earliest opportunity of making a representation against the order of detention.

Thus, clause (5) imposes an obligation on the detaining authority to furnish to the detenu the grounds of the detention as soon as possible and he must have earliest opportunity of making a representation against the order of detention. The grounds of detention should be very clear and easily understandable by the detenu.

In Lallubhai Patel v. Union of India, (1981), the detenu did not know English, but was acquainted only with Gujarathi language. Supreme Court held that, no translation on the grounds of detention into Gujarathi to detenu is violative of Art. 22 (5) and hence the order of detention was invalid.

Again in Kubic Darinsz v. Union of India, (1990), the Court said that if the grounds are only verbally explained to the detenu and nothing in writing is left with him in a language which he understands, the purpose of Art. 22 (5) is not served.

In Shibban Lal v. State of UP (1954), the petitioner was supplied with two grounds of his detention. But later on the detaining authority revoked one of the grounds communicated to him earlier. The detenu challenged the detention as illegal. The court held the detention illegal.

In Ram Bahadur v. State of Bihar, (1975), it has been held that where the order of detention is founded on distinct and separate grounds, if any of the grounds is vague or irrelevant, the entire order must fail.

In Balchand Chorasia v. Union of India (1978), the representation was filed by the detenu through his lawyer. The Government did not consider the representation and approved the detention on the ground that it was not filed by detenu. The Court held that the High Court was wrong in construing that the representation was not made by the detenu himself but by his lawyer.

The SC said that, in matters where the liberty of the individual is concerned and a highly cherished right is involved the representation should be considered liberally and not technically so as to frustrate or defeat the concept of liberty which is guaranteed by Art 21 of the Constitution.

Exception – Art. 22 (6) : Clause (6) of Art. 22 is an exception to clause (5). According to clause (6), disclosure of the facts which are considered to be against the public interest may not be furnished to the detenu. Thus, detaining authority is having discretion whether to disclose the facts or not.

Power of Parliament – Art. 22 (7) :

Art. 22 (7) is exception to clause (4). According to Art. 22 (7), Parliament may by law prescribe the circumstance under which a person may be detained for a period longer than three months. It is to be noted that, clause (7) empowers only the Parliament and not a State legislature.