Protection Against Arrest and Detention
ARTICLE 22
(Target For IQ – 7500110314)
▪ Article 22 grants protection to persons who are arrested or detained. Detention is of
two types, namely, punitive and preventive. Puni- tive detention is to punish a person
for an offence committed by him/her after trial and conviction in a court. Preventive
detention, on the other hand, means detention of a per- son without trial and
conviction by a court. Its purpose is not to punish a person for a past offence but to
prevent him/her from com-mitting an offence in the near future. Thus, preventive
detention is only a precautionary measure and based on suspicion.
▪ The Article 22 has two parts-the first part deals with the cases of ordinary law and
the second part deals with the cases of preventive detention law.
a) The first part of Article 22 confers the fol-lowing rights on a person who is
arrested or detained under an ordinary law:
1. Right to be informed of the grounds of arrest.
2. Right to consult and be defended by a legal practitioner.
3. Right to be produced before a mag- istrate within 24 hours, excluding
the journey time.
4. Right to be released after 24 hours unless the magistrate authorises
further detention.
▪ These safeguards are not available to an enemy alien or a person arrested or detained
under a preventive detention law.
▪ The Supreme Court also ruled that the arrest and detention in the first part of Article
22 do not cover arrest under the orders of a court, civil arrest, arrest on fail-ure to
pay the income tax, and deportation of an alien. They apply only to an act of a
criminal or quasi-criminal nature or some activity prejudicial to public interest.
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b. The second part of Article 22 grants pro-tection to persons who are arrested
or detained under a preventive detention law. This protection is available to
both citizens as well as aliens and includes the following:
1. The detention of a person cannot exceed three months unless an
advisory board reports sufficient cause for extended detention. The
board is to consist of judges of a high court.
2. The grounds of detention should be communicated to the detenu.
However, the facts considered to be against the public interest need not
be disclosed.
3. The detenu should be afforded an opportunity to make a representa-
tion against the detention order.
▪ Article 22 also authorises the Parliament to prescribe (a) the circumstances and the
classes of cases in which a person can be detained for more than three months under
a preventive detention law without obtaining the opinion of an advisory board; (b)
the maximum period for which a person can be detained in any classes of cases
under a preventive detention law; and (c) the procedure to be followed by an
advisory board in an enquiry.
▪ The 44th Amendment Act of 1978 has reduced the period of detention without
obtain-ing the opinion of an advisory board from three to two months. However,
this provision has not yet been brought into force, hence, the original period of
three months still continues.
▪ The Constitution has divided the legisla-tive power with regard to preventive deten
tion between the Parliament and the state legislatures. The Parliament has exclusive
authority to make a law of preventive deten-tion for reasons connected with
defence, foreign affairs and the security of India. Both the Parliament as well asthe
state legisla-tures can concurrently make a law of preven-tive detention for reasons
connected with the security of a state, the maintenance of public order and the
maintenance of supplies and services essential to the community.
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▪ The preventive detention laws made by the Parliament are:
a) Preventive Detention Act, 1950. Expired in 1969.
b) Maintenance of Internal Security Act (MISA), 1971. Repealed in 1978.
c) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act
(COFEPOSA), 1974.
d) National Security Act (NASA), 1980.
e) Prevention of Blackmarketing and Maintenance of Supplies of Essential
Commodities Act (PBMSECA), 1980.
f) Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985. Repealed
in 1995.
g) Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act
(PITNDPSA), 1988.
h) Prevention of Terrorism Act (POTA), 2002. Repealed in 2004.
i) Unlawful Activities (Prevention) Act (UAPA), 1967, as amended in 2004,
2008, 2012 and 2019.
▪ It is unfortunate to know that no demo-cratic country in the world has made pre-
ventive detention as an integral part of the Constitution as has been done in India.
It is unknown in USA. It was resorted to in Brit- ain only during first and second
world war time. In India, preventive detention existed even during the British rule.
For example, the Bengal State Prisoners Regulation of 1818 and the Defence of
India Act of 1939 provided for preventive detention.
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Important Case Laws Related to Article 22 of the Indian Constitution
(Protection Against Arbitrary Arrest and Detention)
Article 22 of the Indian Constitution provides protections related to arrest and
detention. It covers two types of protections:
1. Protection Against Ordinary Arrest (Clauses 1-2):
o Any arrested person must be presented before a magistrate within 24
hours.
o The person has the right to legal representation and a fair defense.
2. Protection in Preventive Detention (Clauses 3-7):
o The government can detain a person without trial for a maximum of
3 months under preventive detention laws.
o Beyond three months, an Advisory Board must review the detention.
Here are some landmark case laws interpreting Article 22:
1. A.K. Gopalan v. State of Madras (1950 AIR 27)
Facts: A.K. Gopalan, a communist leader, was detained under the Preventive
Detention Act, 1950. He challenged the detention, arguing that it violated Article
21 (Right to Life) and Article 22.
Judgment: The Supreme Court held that preventive detention is
constitutional, and Article 22 should be read independently from Article 21.
Significance: This was the first major case to validate preventive detention in
India.
2. Ramesh Thakur v. Union of India (1955 AIR 648)
Facts: The petitioner was detained without being given a chance to defend
himself.
Judgment: The Supreme Court ruled that a detained person must be
informed of the grounds of detention so they can defend themselves.
Significance: This case emphasized transparency and due process in
preventive detention.
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3. Meenu Sehgal v. Delhi Administration (1983 AIR 1073)
Facts: The petitioner’s husband was detained under suspicion of illegal
activities, but no clear reason was provided for his detention.
Judgment: The Supreme Court held that a person cannot be detained
arbitrarily without valid legal grounds.
Significance: Strengthened legal safeguards under Article 22, ensuring that
detentions are legally justified.
4. Joginder Kumar v. State of West Bengal (1969 AIR 219)
Facts: The petitioner was detained under a preventive detention order, but the
reasons for his detention were not communicated promptly.
Judgment: The Supreme Court ruled that a person must be informed of the
charges against them under Article 22(5).
Significance: Ensured the right to know the reasons for detention and seek
legal remedies.
5. Maneka Gandhi v. Union of India (1978 AIR 597)
Facts: The government seized Maneka Gandhi’s passport without explanation,
restricting her right to travel.
Judgment: The Supreme Court ruled that Article 21 and Article 22 must be
read together, ensuring fair legal procedures in all cases of detention and
restrictions on liberty.
Significance: Expanded the scope of personal liberty and due process in
Indian law.
6. Addam J. Erabi v. Union of India (2004 AIR SC 2714)
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Facts: A foreign national was detained in India under suspicion but was not
allowed to meet a lawyer.
Judgment: The Supreme Court ruled that even non-citizens have the right to
legal representation under Article 22(1) and (2).
Significance: Reinforced equal legal rights for all detained individuals,
regardless of nationality.
7. Pritam Nath Huda v. State of Haryana (2021)
Facts: The petitioner was detained by the police without being presented before
a magistrate within 24 hours.
Judgment: The Supreme Court declared that detention beyond 24 hours
without judicial oversight is unconstitutional under Article 22(2).
Significance: Ensured strong judicial review in cases of arbitrary detention.
