Article 22: Protection Against Arrest

Notes

Art. 22 gives protection to persons who are arrested or detained. It covers two kinds of detention.

A. Ordinary arrest (Art. 22(1) and 22(2))

Right to be informed of the grounds of arrest as soon as may be.
Right to consult and be defended by a legal practitioner of choice.
Must be produced before the nearest magistrate within 24 hours (excluding journey time).
No detention beyond 24 hours without the magistrate's authority.
These rights do not apply to (i) enemy aliens and (ii) persons arrested or detained under a preventive detention law.

B. Preventive detention (Art. 22(3) to 22(7))

Detention without trial to prevent a person from acting in a prejudicial way (unlike punitive detention, which punishes a crime already committed).
Detention up to three months without any Advisory Board. Beyond three months only if an Advisory Board (persons who are, have been, or are qualified to be High Court judges) reports sufficient cause.
Authority must communicate grounds as soon as possible and give the earliest opportunity to make a representation; it may withhold facts it considers against public interest.
Art. 22(7): Parliament may prescribe the circumstances and the maximum period of detention. The 44th Amendment (reducing the period to two months and requiring a sitting High Court judge as chair) was never brought into force.
Legislative power: Union List Entry 9 (defence, foreign affairs, security of India); Concurrent List Entry 3 (security of the State, public order, supplies and services). Both Parliament and State legislatures can legislate.

Preventive detention laws: Preventive Detention Act 1950 (lapsed 1969), MISA 1971 (repealed 1978), COFEPOSA 1974, National Security Act (NSA) 1980, PITNDPS Act 1988, UAPA 1967 (as amended), and State laws.

Landmark judgments

A.K. Gopalan (1950): upheld the Preventive Detention Act; Art. 22 viewed as a complete code. Overruled in Maneka Gandhi (1978).
Joginder Kumar v State of UP (1994): arrest should not be routine; police must justify it.
D.K. Basu (1997): detailed arrest guidelines, including a memo of arrest and informing a relative.
Arnesh Kumar v State of Bihar (2014): automatic arrest in offences punishable up to seven years is discouraged.
Pankaj Bansal v Union of India (2023) and Prabir Purkayastha (2024): grounds of arrest must be communicated in writing.

Key Points

24-hour production before a magistrate; right to a lawyer.
Ordinary arrest protections are not available to enemy aliens or preventive detainees.
Preventive detention up to three months without an Advisory Board.
Parliament sets the maximum period under 22(7).
Art. 22 is available to citizens and non-citizens alike (except enemy aliens, for 22(1),(2)).

MCQs

Q1. Under Art. 22, an arrested person must be produced before a magistrate within:
(a) 12 hours
(b) 24 hours
(c) 48 hours
(d) 72 hours
Ans: (b). Excluding the time of travel.

Q2. Preventive detention beyond three months requires the approval of:
(a) President
(b) Advisory Board
(c) Supreme Court
(d) Parliament
Ans: (b).

Q3. Art. 22(1) and 22(2) rights are NOT available to:
(a) Citizens
(b) Women
(c) Enemy aliens and persons under preventive detention
(d) Foreigners
Ans: (c).