I was sitting in my drawing room, having a sumptuous dinner with my family, when there was a knock on the door. I got up to check who the unexpected guest was, when I noticed 3 policemen. They asked my name, and told me that they came to arrest me. I had so many questions to ask, but my voice was gone. They took me with them, without telling me why they arrested me. I could not call a lawyer, and they took me to a dark – pitch black room, where you could see nothing. I was told this is where I was going to spend the rest of my life, and all I had in my mind was the protection against illegal arrest and detention under Article 22 of the Constitution of India – even in my nightmares!
Let’s get into the roots of what the provision holds.
What is Article 22 of Constitution of India?
Article 22 extends fundamental right to an individual, which provides protection to everyone against arbitrary arrest and detention by the authorities (Police etc.). It states that nobody shall be arrested by Police arbitrarily without informing the cause of such action. The makers of Constitution of India included this safeguard to ensure that each individual can enjoy the right to live a life with dignity. Freedom and liberty of a person are the main essence of Article 22 of the Constitution.
What made the Constitution makers to include Article 22 in fundamental rights?
Historical Background: During the British regime, enormous power was given to the authorities or the Police to arrest or detain a person arbitrarily (without informing the cause of arrest). Specially the oppressive laws such as Rowlatt Act 1919, and Defence of India Act 1915 allowed detention of an individual without trial for suspected involvement in anti-government activities and authorized preventive detention during world war I to maintain national security respectively, had brutally suppressed individual’s right to liberty and freedom. The makers of the Constitution of India had all this in mind while crafting the provision of Article 22. It aims to protect a person against the illegal, and unlawful arrest or detention and guarantees personal liberty and freedom.
Article 22: Protection against illegal arrest and detention
Article 22 of Indian Constitution provides certain safeguard regarding arrest and detention. It aims to protect a person’s right to personal liberty and freedom against unlawful detention by the authorities. Article 22 protects both citizens of the country and foreigners, with some exceptions.
Communication for the ground of arrest
Article 22 of Constitution lays that no person after the arrest, shall be detained in the custody without informing him/or her of the ground of detention. An arrested person should be informed the ground of arrest and detention. They have all the rights to know on which ground he/ or she got arrested or detained, enabling them to use their legal rights effectively.
Right to be presented before the Magistrate
Every person who is arrested and detained in Police custody needs to be produced before the nearest Court of Magistrate, within 24 hours of such an arrest. The said 24-hour bar excludes the time necessary for travel from the place of arrest to the nearest Magistrate Court.
Right to legal representation
Every person who is arrested or detained shall have a right to consult legal practitioner of his choice. Article 22 of Constitution not only ensures legal representation, but also ensures representation by an advocate of choice.
Exceptions to Article 22 of Constitution
While Article 22 extends protection against illegal arrest and detention, the provision is not applicable to:
1) any person who for the time being an enemy alien i.e. a person who belongs to enemy country
2) any person who is arrested or detained under the preventive detention.
Preventive detention
Constitution of India Article 22 allows the authorities to arrest or detain a person merely on the occasion of causing any action which is against National security. The grounds for preventive detention are: State security, Public order, Foreign affairs, and Community service.
No person shall be kept in detention for more than 3 months unless an Advisory Board reports sufficient cause of detention. The order of the authority shall be communicated to the detenu, so that he/she can consult for legal representation against the order. If the authority finds that disclosing of facts may be against the public interest, in such case the authority can withhold certain facts to the detainee even if he/she is entitled to know the cause of detention.
Remedies provided under the Constitution: A person who is illegally detained by the authority, has right to file a writ petition of Habeas Corpus under the article 32 or 226 of the Constitution and has a right to consult any legal practitioner to challeng the detention orders.
Landmark Cases on Article 22 of Indian Constitution
A. K. Gopalan v. State of Madras
A.K. Gopalan was a communist leader, who was detained under the Preventive Detention Act 1950. He filed a writ petition, arguing it violated his fundamental rights under article 14, 19, and 21. The Supreme Court upheld the Preventive Detention Act and dismissed the writ petition of Gopalan, by citing the reason that under article 21 of the Constitution, State could deprive individual liberty as long as it followed a legal procedure. This judgement was criticized for the narrow interpretation of fundamental rights.
ADM Jabalpur v. Shivkant Shukla
The Supreme Court held that during an Emergency, when article 21 is suspended, detainees loose right to approach courts for Habeas Corpus petition. The detention order could not be challenged under Article 22 of Indian Constitution, even if they violated statutory provisions.
D.K. Basu v. State of West Bengal
The Supreme Court in this case established detailed guidelines for the procedure to be followed during arrest and detention:
- Mandatory guidelines for police to be followed while arresting or detaining any person;
- Required maintenance of arrest memos, notification to family members of detainee;
- These guidelines are enforceable by the Courts;
- Violation may lead to departmental action and contempt of Court proceedings
Misuse of Article 22 of Indian Constitution
There have been several cases of misuse of Article 22, particularly in to the name of preventive detention (arrest or detention of a suspected person who may cause threat to national security). Supreme Court of India has also observed that preventive detention poses a serious threat to any person’s liberty and freedom under the Article 21.
Section 35 of BNSS empowers the Police to arrest or detain a person without any orders or warrant from the Magistrate on the ground of a mere suspension that some wrong has been committed by a person prejudicial to the State and such an offence cannot be prevented without arrest.
Issues with Preventive detention
- Misuse: Preventive detention has been widely misused by political parties, such as arrest of a person for saying something against the Government or to punish members of the opposition party. After independence, it was first misused in Preventive Detention Act, 1950 as observed in very famous case of A.K. Gopalan, then again during the emergency period of 1975. Recently during COVID-19 pandemic, various States invoked National Security Act empowering government to detain a person, to prevent them from doing something which may disturb the public order or national security.
- Lack of clarity: In various State laws (under law and order subject), there is no clarity on what ground a person must be detained by Police. Sometimes, it has been observed that a person is detained for petty reasons. In some cases, a person has been detained and then found dead in custody, raising concerns about misuse of power by the Police and showing lack of accountability.
- Violation of Fundamental Right: Detaining a person on uncertain grounds is in clear conflict with the other fundamental rights, particularly those embedded in Article 19 (right to freedom) and Article 21(right to life and personal liberty).
Conclusion
Article 22 of Indian Constitution is important to protect the other fundamental rights guaranteed under the Constitution of India. The authorities must be trained in a way to avoid any misuse of the Preventive detention laws. Uniformity should be maintained in the State laws (regarding law and order subject) related to which crime should be included under this or not. The nature of crimes must be clearly stated to avoid any confusion with it. The law must not be used arbitrarily in any case. Their implementation needs to be done with caution to avoid violation of fundamental rights of an individual.
The Article 22 of Indian Constitution has been decoded by our intern, Ms Neha Patidar. She has been assisting the team in bringing informational legal blogs.
