Art 22

INTRODUCTION
• The protection of the individual from oppression and abuse by the
police and other enforcement officers is a major interest in a free
society.
• Arrest and detention in police lock-up may be very traumatic for a
person. It can cause him incalculable harm by way of loss of his
reputation. Denying a person of his liberty is a serious matter.
• Art. 22 guarantees the minimum rights which any person who
is arrested will enjoy
• 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 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
• RULE 1: INFORMATION ABOUT GROUNDS OF ARREST
• The reason behind the rule requiring communication of grounds to the
person arrested is to enable him to prepare his defence, and to move the
court for bail, or for a writ of habeas corpus
• Failure to inform the person arrested of the reasons for his arrest would
entitle him to be released.
• If information is delayed, there must be some reasonable grounds
justified by circumstances
• For purposes of this rule, it is not necessary to furnish him with full
details of the offence, but the information should be sufficient to enable
him to understand why he has been arrested and to give him an idea of
theoffence which he is alleged to have committed. The grounds given to
the arrested person should be intelligible
RULE 2: RIGHT TO CONSULT A
LAWYER
• Rule 2 postulates that there is an accusation against the person arrested
against which he should be enabled to defend himself by engaging a
legal practitioner of his choice. This is mandatory.
• New judicial view as to providing legal aid to an accused at his trial
has been promoted by insertion of Art. 39A, as a Directive Principle,
amendment of S. 304(1) , Cr.P.C., 1973 and the Supreme Court’s new
stance as to the interpretation of Art. 21 post Maneka Gandhi
judgement.
RULE 3: PRODUCTION OF THE
ARRESTED PERSON BEFORE A
MAGISTRATE
• An arrested person to be produced before a magistrate within 24 hours of his
arrest. It thus ensures that a judicial mind is applied immediately to the legal
authority of the person making the arrest and regularity of the procedure
adopted by him
• The provision for production of an arrested man before a magistrate is not to
be treated as a mere formality but as purposeful and designed to enable the
person arrested to be released on bail, or other provision made for his
proper custody, pending investigation into the offences with which he is
charged pending an enquiry or trial
• The magistrate is not to act mechanically but should apply judicial mind to
see whether the arrest of the person produced before him is legal, regular
and in accordance with law
EXCEPTIONS
• Art. 22(3) makes two exceptions.
• Arts. 22(1) and 22(2) do not apply to:
(a) enemy aliens, and
(b) to persons arrested or detained under a law
providing for preventive detention
PREVENTIVE DETENTION(PD)
• PD means detention of a person without trial and conviction by a court, but
merely on suspicion in the mind of an executive authority.
• PD is fundamentally and qualitatively different from imprisonment after
trial and conviction in a criminal court
• PD has found its presence in other democratic countries like Britain,
U.S.A. and Canada, but only as a war-time, and not a peace-time, measure.
• In India, the Constitution itself visualizes the possibility of a law of
preventive detention. In spite of all the emphasis on individual liberty, it
has been found necessary in India to resort to preventive detention during
peace-time because of unstable law and order situation in the country
• Art 22(4) to (7) further prescribe safeguards and minimum procedures
pertaining to PD
(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
INFORMATION ABOUT GROUNDS OF DETENTION
• Art. 22(5) has two limbs.
• One, the detaining authority is to communicate to the detenu the grounds of
his detention 'as soon as may be’.
• Two, the detenu is to be afforded 'the earliest opportunity' of making are
presentation against the order of detention.
• This is natural justice woven into the fabric of preventive detention
by the Constitution.
• The Supreme Court has emphasized in multiple judgments that Art.
22(5) vests a real, and not an imaginary or illusory, right in the
detenu.
• The communication of grounds is the cornerstone of his right of
representation and an order of detention passed on uncommunicated
materials is unfair and illegal
• The Court has ruled in this case that the word "grounds" used in Art.
22(5) mean not only the narration or conclusions of facts, but also all
materials on which those facts are conclusions which constitute the
"grounds" are based.
• The words 'as soon as may be' in Art. 22(5) indicate a positive action
on the part of the detaining authority in supplying the grounds of
detention. This means that the detaining authority must communicate
the grounds to the detenu within reasonable time.
• The efficacy of the above norms regarding communication of grounds
and facts to the detenu is diluted to some extent by Art. 22(6) which
permits the detaining authority to withhold those facts which it
considers not desirable to disclose in public interest.
• RIGHT TO MAKE REPRESENTATION
• The Courts have emphasized that the right to make representation given to the
detenu by the Constitution is not 'illusory’.
• The detenu should be placed in a position so that he can make an effective
representation against his detention order and he cannot do so unless the grounds of
detention are communicated to him in clear and unambiguous terms giving as much
In
• In Icchu Devi v. Union of India, a smuggler detained under COFEPOSA challenged
his detention on several grounds, of which one proved to be fatal, viz. the detaining
authority had not served on the detenu copies of several documents on which the
authority had relied in the grounds of detention. The high water of this case is the
deep concern expressed by the Supreme Court for the upholding of personal liberty.
• The Court ruled that, in the instant case, continued detention of the petitioner
became illegal because of non-compliance with statutory and constitutional
requirements particulars as possible
• Art. 22(5) does not say as to whom the representation is to be made, or, what is to
be done with it. However, in order to make Art. 22(5) meaningful and convert it into
a safeguard to the detenu, the Supreme Court has interpreted Art. 22(5) to mean that
the government must consider the detenu's representation before sending it to the
advisory board.
• This consideration of representation by the detaining authority is independent of the
reference to the Advisory Board.
• The Supreme Court has emphasized that if the representation is received before the
case is referred to the advisory board, the same must be considered before the
matter is referred to the advisory board.
• Thus, there are two distinct obligations, independent of each other, imposed on the
government:
(1) to give the detenu the earliest opportunity to make a representation and consider it
expeditiously,
(2) to refer the case to an advisory board and obtain its report
 Jaynarayan Sukul v. State of West Bengal, 1970 SCR (3) 225
• Writ petition challenging the PD
• Broadly stated, four principles are to be followed in regard to representation of
detenus.
• First, the appropriate authority is bound to give an opportunity to the detenu to make a
representation and to consider the representation of the detenu as early as possible.
• Secondly, the consideration of the representation of the detenu by the appropriate
authority is entirely independent of any action by the Advisory Board including the
consideration of the representation of the detenu by the Advisory Board.
• Thirdly, there should not be any delay in the matter of consideration. It in true that no
hard and fast rule can be laid down as to the measure of time taken by the appropriate
authority for consideration but it has to be remembered that the Government has to be
vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the
State.
• Fourthly, 'the appropriate Government is to exercise its opinion and judgment on the
representation before sending the case along with the detenu's representation to the
Advisory Board.
ADVISORY BOARD
• Another safeguard is provided by Art. 22(4) to a detenu under preventive detention.
• Under Art. 22(4), preventive detention for over three months is possible only when
an advisory board holds that, in its opinion, there is sufficient cause for such detention.
• The board must report before the expiry of three months. If the report is not made within
three months of the date of detention, the detention would become illegal.
• The board is to consist of persons who are, or have been, or are qualified to act as the
High Court Judges.
• For preventive detention up to three months, no reference to such a board is necessary.
• Under Art. 22(7)(c),Parliament is authorized to prescribe the procedure to be followed by
an advisory board.
• From the tenor of Art. 22(4)(a), it is clear that a law of preventive detention may provide
for detention up to three months without the safeguard of an advisory board
• Under Art. 22(7)(a), Parliament may by law prescribe "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"
without referring his case to an advisory board under Art. 22(4)(a).
• Art. 22(4)(a) says that no person can be detained beyond the
maximum period prescribed by any law made by Parliament. Under
Art. 22(7)(b), Parliament may by law prescribe the maximum period
of detention for which any person can be detained
LAWS AUTHORISING PREVENTIVE
DETENTION
• A law for preventive detention can be enacted by Parliament
exclusively under entry 9, List I, for reasons connected with defence,
foreign affairs, or the security of India.
• Further, under entry 3, List III, Parliament as well as the State
Legislatures can concurrently make a law for preventive detention for
reasons connected with security of a State, maintenance of public
order, or maintenance of supplies and services essential to the
community.
• NATIONAL SECURITY ACT
• Immediately after the inauguration of the Constitution, Parliament enacted the
Preventive Detention Act,1950. It was deemed to be a temporary measure but it
remained in operation till December 31, 1969, when it was allowed to expire. It was this
Act which gave rise to the famous (or, now infamous) Gopalan case.
• Then was enacted the Maintenance of Internal Security Act, 1971, (MISA). This Act
lasted until 1977.Thereafter, Parliament enacted the National Security Act, 1980, (NSA).
This is the prevailing law on preventive detention.
• The salient feature of NSA is that an order of preventive detention can be made by the
Central or State Government if it is satisfied with respect to any person that it is
necessary to do so to prevent him from acting in any manner prejudicial to the defence
of India, the relations of India with foreign powers, security of India, security of a State,
maintenance of public order, or the maintenance of supplies and services essential to the
community.
• Provisions have been made for communication of grounds to the detenu ordinarily not
later than five days and, in exceptional circumstances, and for reasons to be recorded in
writing, within 10 days of his arrest
• The constitutional validity of NSA came to be considered by the Supreme Court in A.K.
Roy v. Union of India
• The Court rejected the contention that preventive detention was basically impermissible
under the Indian Constitution.
• The major argument was that various phrases occurring in S. 3 of the Act such as
'defence of India', etc., are so vague, general and elastic that even conduct otherwise
lawful can be comprehended therein depending upon the "whim and caprice" of the
detaining authority.
• Accepting the proposition that the vagueness and the consequent uncertainty of a
preventive detention law bears upon its reasonableness, for a person "cannot be deprived
of his liberty by a law which is nebulous and uncertain in its definition and application,"
• The Supreme Court, nevertheless, refused to hold the NSA invalid on this ground.
According to the Court, the various expressions used in the Act relate to concepts“
which are difficult to encase within the strait-jacket of a definition", "are not of any
great certainty or definiteness," and are not capable of a precise definition, but they "do
not elude a just application to practical situations.
COFEPOSA ACT
• Besides NSA, Parliament has also enacted the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974, (COFEPOSA).
• The Act was enacted as violations of foreign exchange regulations and smuggling
activities were having an increasingly deleterious effect on the national economy and
thereby a serious adverse effect on the security of state. The Act became necessary
because ordinary laws did not prove effective enough to curb smuggling of goods into
India
• This Act provides for preventive detention with a view to prevent smuggling and to
prevent any one from acting in a manner prejudicial to conserving and augmenting
foreign exchange.
• The Act contemplates two situations for making orders of preventive detention(a) to
prevent violation of foreign exchange regulations;
and(b) to prevent smuggling activities
• Most of its provisions are similar to NSA. The Act fulfils all the requirements of Art.
22 as mentioned above
Union Of India vs Dimple Happy Dhakad

• Detenu Happy Dhakad is alleged to have abetted Nisar Aliyar in his illegal activities of receiving and
concealing smuggled gold and disposing it off through his jewellery outlets and is said to have played a vital
role.
• It is alleged that through multiple jewellery outlets owned by him and his relatives, detenu-Happy Dhakad
disposed of the foreign origin smuggled gold easily. Follow up searches were conducted at various offices and
residential premises of persons found connected with smuggling of gold. A total quantity of 110 kgs of gold
was recovered from these premises.
• The Detaining Authority-Joint Secretary (COFEPOSA), on being satisfied that the detenues have high
propensity to indulge in the prejudicial activities, with a view to prevent them from smuggling and concealing
smuggled gold in future, passed the orders of detention dated under Section 3 of the COFEPOSA.
• The High Court quashed the detention orders by holding that there was no application of mind by the
Detaining Authority in passing the detention orders.
• The HC’s order that set aside the PD was overruled by the Supreme Court
• The Supreme Court observed that order of detention is clearly a preventive measure and devised to afford
protection to the society. When the preventive detention is aimed to protect the safety and security of the
nation, balance has to be struck between liberty of an individual and the needs of the society.
• The court must be conscious that the satisfaction of the detaining authority is “subjective” in nature and the
court cannot substitute its opinion for the subjective satisfaction of the detaining authority and interfere with
the order of detention. It does not mean that the subjective satisfaction of the detaining authority is immune
from judicial reviewability