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Notes On Article 22 of The Indian Constitution

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Notes On Article 22 of The Indian Constitution

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HOME / CLAT PG / Notes on Article 22 of the Indian Constitution

Notes on Article 22 of the Indian Constitution

Ruchika Mohapatra | Apr 06, 2023 | 6 min read

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TABLE OF CONTENTS

Introduction

Clauses under Article 22

Landmark Cases on Article 22

Important Questions on Article 22

Conclusion

Introduction

Article 22 of the Indian Constitution pertains to the protection of a


person’s right to personal liberty and safeguards against detention
or arrest without proper legal procedure. This article is considered
to be one of the fundamental rights guaranteed to citizens of India.

Article 22 applies to both citizens and non-citizens and protects


individuals in cases of arrest and detention in certain cases by
providing certain important rights. The core object behind this
clause is to ensure the personal liberty of individuals is maintained
by preventing arbitrary arrests and detention. These safeguards
are, however, not applicable to

Enemy aliens

People arrested under preventive detention law.

Clauses under Article 22

Article 22(1) states that any person who is arrested and detained
shall be informed of the grounds for such arrest and shall have the
right to consult and be represented by a legal practitioner of their
choice. This provision ensures that an arrested person is not kept in
the dark about the reason for their arrest and has the right to legal
assistance.

The first right states that the person who has been arrested or
detained needs to be informed of the grounds of such arrest or
detention thereby ensuring that the arrest/ detention is not
arbitrary. In the case of Joginder Kumar v. State of U.P. it was held
that a detained person should know the cause of his detention and
is entitled to let any third person know the location of his detention.

The second right enables the arrested person/detenu to get a


chance to be represented by a legal practitioner of their choice.
This right is available right from the moment a person has been
arrested. This enables the arrested person to get a fair trial. The
Supreme Court in Hussainara Khatoon v. State Of Bihar has held
that the right to a speedy trial is a constitutional right.

Article 22(2) states that any person who is arrested and detained
must be produced before the nearest magistrate within 24 hours of
their arrest, excluding the time required for transportation. This
provision is aimed at preventing arbitrary detention and ensuring
that the detained person is produced before a judicial authority
within a reasonable time.
This clause also finds support in Section 56 of CrPc and Section
167 of CrPc.

This clause also states that no person who is arrested should be


detained for more than 24 hours without being produced before a
magistrate or judicial authority and getting the detention authorized
as mentioned in Section 167. These 24 hours are not inclusive of the
time of travel from the place of arrest to the magistrate’s court.

Article 22(3) is an exception to clauses (1) and (2) of Article 22 and


it states that none of the rights mentioned in clause 1 and 2 of the
Article would be applicable for a person who is deemed to be an
enemy alien and anybody who is arrested or detained under the law
providing for preventive detention.

Article 22(4) states that no law providing for preventive detention


shall be made except in cases specified in Article 22(3) and (4).
Preventive detention refers to the detention of a person to prevent
them from committing a crime in the future. This provision ensures
that preventive detention is not misused by the government to
suppress dissent or opposition.

Article 22 (5) states that 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.

Parliament may by law prescribe the circumstances under 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.

Article 22(6) states that Clause (5) doesn’t require the authority
issuing any such order to disclose information that it deems to be
contrary to popular opinion and interest.

Article 22(7) states that the Parliament may prescribe by law-


(a) the circumstances and classes of cases in which detention of
persons for more than 3 months of detention time while under the
law requires preventive detention without trying to obtain the
opinion of an Advisory Board in accordance with the provisions of
clause (4) sub-clause (a).

(b) the maximum period of detention under any law providing for
preventive detention in any class or classes of cases.

(c) the process that an Advisory Board must use when conducting
an investigation under clause (4) subclause (a).

Landmark Cases on Article 22

Several important cases have been heard by the Indian courts


with regards to Article 22.

In the case of A.K. Gopalan v. State of Madras, the Supreme Court


held that the right to personal liberty was limited to the procedure
established by law and that the court could not go beyond the
provisions of the law to examine the merits of an arrest or
detention. This decision was widely criticized as being too
restrictive of individual rights.

In the case of Menaka Gandhi v. Union of India, the Supreme Court


held that the right to personal liberty was not limited to the
procedure established by law but also included substantive due
process. This decision was a significant departure from the
Gopalan decision and was seen as a major victory for individual
rights.

In the case of State of West Bengal v. Anwar Ali Sarkar, the


Supreme Court held that the right to legal representation was a
fundamental right and that the state was obligated to provide legal
aid to a person who could not afford it. This decision was
significant in ensuring that the right to legal representation was
available to all, regardless of their financial means.
In the case of D.K. Basu v. State of West Bengal, the Supreme Court
issued guidelines for the arrest and detention of a person, including
the requirement that the arresting officer must inform the person of
their right to legal representation and that a relative or friend of the
person must be informed of their arrest. This decision was
significant in ensuring that the arrest and detention of a person was
conducted in a humane and fair manner.

Conclusion

In conclusion, Article 22 of the Indian Constitution is an essential


component of individual rights and protects against arbitrary arrest
and detention. The provision for legal representation and the right
to be produced before a magistrate within a reasonable time
ensures that the detained person is not left in the dark and has
access to legal assistance. The provision for restriction on
preventive detention ensures that a person is not kept in custody
indefinitely and that preventive detention is not misused by the
government. The various court decisions have helped to clarify and
strengthen the protection of individual rights under Article 22.

Important Questions on Article 22

1. A was arrested by a police party from his house and kept in a


secluded building for three days, without informing any person
about the arrest or the place of his detention. For all these days
A was neither told about the reasons or grounds of his arrest
now permitted to contact any person. After three days
confinement A was released and informed that he was free to
go anywhere. What are the illegalities involved in the above
arrest process? [Punjab 2001]

2. What protections against arrest and detention have been


provided to a person in the Constitution of India? [RJS 1986,
MPJS 2012]

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