Article 22 of Indian Constitution: Top Rights & Legal Safeguards Against Arbitrary Arrest”

Article 22 of the Indian Constitution

Article 22 of the Indian Constitution is a unique and often debated provision that provides crucial safeguards to individuals against arbitrary arrest and detention.¹ It functions as a procedural bulwark, ensuring that the State’s power to curtail personal liberty, as permitted under Article 21, is exercised with fairness and accountability.² The article is distinctive for its two-part structure: the first part deals with rights afforded during ordinary arrests (punitive detention), while the second, more contentious part, lays down a constitutional framework for preventive detention, a measure allowing detention without trial.

Part 1: Rights in Case of Ordinary Arrest [Clauses (1) and (2)]

The first two clauses of Article 22 establish four fundamental procedural rights for any person arrested or detained under an ordinary law.⁴ These safeguards are designed to prevent custodial abuse and ensure immediate access to legal recourse.⁵

1. Right to Be Informed of the Grounds of Arrest: Clause (1) mandates that no person shall be detained in custody without being informed, “as soon as may be,” of the reasons for their arrest.⁶ This is not a mere formality. The Supreme Court has repeatedly affirmed that the grounds must be communicated in a clear and understandable manner, enabling the arrested person to prepare their defence and apply for bail.⁷
2. Right to Consult and Be Defended by a Legal Practitioner: The same clause guarantees the right of an arrested person to consult and be defended by a lawyer of their choice.⁸ This right is vital for ensuring a fair trial and protecting the individual from the coercive atmosphere of police custody. It underpins the principle of legal aid and ensures that the complexities of the law do not overwhelm the accused.
3. Right to Be Produced Before a Magistrate: Clause (2) provides that every arrested person must be produced before the nearest magistrate within 24 hours of their arrest.⁹ This is a critical check on the power of the police, transferring the authority for continued detention from the executive to the judiciary. The magistrate can then assess the legality of the arrest and decide whether further detention is warranted.
4. Right to Not Be Detained Beyond 24 Hours Without Judicial Authority: Complementing the previous right, this clause explicitly prohibits detention beyond the 24-hour period without the authorisation of a magistrate. The “24 hours” excludes the time necessary for the journey from the place of arrest to the magistrate’s court, but it establishes a strict timeline to prevent illegal police detention.¹⁰

The Supreme Court, in the landmark case of D.K. Basu v. State of West Bengal (1997), built upon these constitutional foundations by issuing a comprehensive set of guidelines to be followed during arrest and detention.¹¹ These include requirements for police to wear clear identification, prepare an arrest memo attested by a witness, inform a friend or relative of the arrest, and grant the detainee a medical examination, among others. These guidelines have become an essential part of criminal procedure in India.

Part 2: The Controversial Framework of Preventive Detention [Clauses (3) to (7)]

Article 22(3) carves out a significant exception: the safeguards mentioned in clauses (1) and (2) do not apply to (a) enemy aliens and (b) persons arrested or detained under any law providing for preventive detention.¹²

Preventive detention is the detention of a person not for a crime they have committed, but to prevent them from committing a crime in the future.¹³ The Constitution, while permitting this extraordinary measure, lays down a specific framework to regulate it and provide some minimal safeguards.¹⁴

• Limited Period of Detention: Clause (4) states that no law providing for preventive detention shall authorise the detention of a person for more than three months.¹⁵
• Role of the Advisory Board: Detention beyond three months is only possible if an Advisory Boardreports that there is, in its opinion, sufficient cause for such extended detention.¹⁶ This Advisory Board must consist of persons who are, or have been, or are qualified to be appointed as, judges of a High Court. This provides a semblance of independent review of the executive’s decision.
• Rights of the Detainee: Clause (5) grants two important rights to a person held under preventive detention:¹⁷
  1. Right to Know the Grounds: The detaining authority must, as soon as possible, communicate the grounds on which the detention order has been made.¹⁸
  2. Right to Make a Representation: The detainee must be given the earliest opportunity to make a representation against the detention order.¹⁹
• Exception to Disclosure: Clause (6) allows the detaining authority to withhold facts that it considers to be against the public interest to disclose.²⁰ This has been a point of criticism, as it can hinder the detainee’s ability to make an effective representation.
• Parliament’s Power: Clause (7) empowers Parliament to legislate on preventive detention, including prescribing the maximum period of detention and the procedure to be followed by Advisory Boards.²¹This has led to the enactment of several stringent laws over the years, such as the National Security Act (NSA), 1980.

A Necessary Evil or an Illiberal Provision?

Article 22 occupies a complex and contested space within the Indian Constitution. Its first part provides indispensable rights that are fundamental to due process and the rule of law.²² The second part, permitting preventive detention, has been described by critics as a colonial relic and an “illiberal” provision that sits uneasily within a democratic framework. The judiciary has often walked a tightrope, upholding the necessity of such laws for national security while insisting on strict procedural compliance to prevent their misuse. Ultimately, Article 22 reflects the unique challenges and priorities perceived by the Constitution’s framers, creating a dual-faced provision that both protects liberty and, under exceptional circumstances, permits its curtailment without trial.