Protection against Arrest and Preventive Detention

Legal provision

• Article 22(1): a person arrested shall not be detained in custody without being told, as soon as may be, the grounds of arrest. He shall not be denied the right to consult and be defended by a legal practitioner of his choice.
• Article 22(2): an arrested person must be produced before the nearest magistrate within twenty-four hours, excluding the journey time. He cannot be held longer without the magistrate's authority.
• Article 22(3): clauses (1) and (2) do not apply to an enemy alien or to a person arrested or detained under a preventive detention law.
• Article 22(4): a preventive detention law cannot authorise detention beyond three months, unless an Advisory Board of persons who are, have been or are qualified to be High Court Judges reports sufficient cause. The exceptions are in a law made by Parliament under clause (7).
• Article 22(5): the authority must tell the detained person the grounds of the order as soon as may be and give the earliest chance to make a representation.
• Article 22(6): the authority need not disclose facts it considers against the public interest to disclose.
• Article 22(7): Parliament may prescribe the cases where detention beyond three months is allowed without an Advisory Board, the maximum period of detention, and the Board's procedure.
• Not in force: the 44th Amendment (1978) would substitute clause (4) to reduce the period to two months and to change the Board. The repo footnote says the date is yet to be notified, so the original text applies.

Meaning and definition

Article 22 covers two situations. An ordinary arrest follows an alleged offence and leads to a trial. Preventive detention is detention without trial to stop a future act. It is not a punishment for a past offence. For this reason the Constitution gives it its own rules in clauses (3) to (7).

Detailed explanation

Step 1: safeguards on ordinary arrest, clauses (1) and (2)

The words are "no person", so citizens and non-citizens are covered. Four rights follow.

1. To be told the grounds of arrest as soon as may be.
2. To consult a lawyer of his choice.
3. To be defended by that lawyer.
4. To be produced before the nearest magistrate within 24 hours, excluding the journey.

Step 2: guidelines on arrest

In Joginder Kumar v. State of U.P., a 28-year-old advocate was held for five days by the Senior Superintendent of Police, Ghaziabad, with no record of arrest. The Court said that "No arrest can be made because it is lawful for the police officer to do so". An officer must be able to justify the arrest after some investigation. On request, an arrested person may have one friend or relative told of the arrest and the place of detention. An entry is made in the diary, and the Magistrate must check that this was done. The officer must record the reasons for the arrest in the case diary.

In D.K. Basu v. State of West Bengal, the Court acted on letters about deaths in police lock-ups. It held that custodial violence breaches Article 21, and it allows compensation under Articles 32 and 226. It laid down eleven requirements for every arrest and detention until Parliament legislates.

• Police personnel making the arrest must wear clear name tags, recorded in a register.
• An arrest memo is prepared at the time of arrest. It is attested by a family member or a respectable local person and countersigned by the arrested person.
• A friend or relative is informed, and a relative outside the district is told within 8 to 12 hours.
• An entry is made in the diary at the place of detention.
• The arrested person is examined at the time of arrest and every 48 hours by an approved doctor.
• Copies of the documents go to the area Magistrate.
• He may meet his lawyer during interrogation, though not throughout.
• A police control room gets the information within 12 hours.

A breach exposes the officer to departmental action and to contempt of court.

Step 3: who is outside clauses (1) and (2)

Clause (3) excludes two groups: an enemy alien (a national of a country at war with India) and a person arrested under a preventive detention law.

Step 4: preventive detention, clauses (4) to (7)

The detaining authority must give the grounds and the earliest opportunity to make a representation. It may withhold facts that are against the public interest (clause 6). After three months the Advisory Board must report sufficient cause. Parliament, not a State Legislature, may prescribe the longer periods and the Board's procedure (clause 7).

In A.K. Roy v. Union of India, a sitting Member of Parliament detained under the National Security Act, 1980 challenged the Act. A five-Judge Bench upheld it. Preventive detention is a distinct mechanism, and weaker safeguards than a criminal trial do not make it invalid. A detenu has no absolute right to a lawyer or cross-examination before the Advisory Board, though the Board must act fairly. The Court also confirmed that the 44th Amendment's change to clause (4) had not been brought into force.

In K.V. Subba Rao v. State of Andhra Pradesh, the Andhra Pradesh High Court (1966) heard a challenge to a detention under Rule 30 of the Defence of India Rules. It held that a detention order can be challenged for malice, but the detenu must plead and prove it. The petition was dismissed.

Don't confuse: arrest and preventive detention

Common mistakes

• Saying Article 22 applies only to citizens. It says "no person".
• Applying clauses (1) and (2) to a person under preventive detention. Clause (3)(b) excludes him.
• Saying the 44th Amendment's two-month period applies. It has not been notified.
• Saying every arrested person is produced in 24 hours including travel. The journey time is excluded.
• Saying D.K. Basu is a statute. It is a set of binding guidelines from the Court.

Apply it

Leading case laws

• Joginder Kumar v. State of U.P. (1994)

  Facts. A 28-year-old advocate was held for five days by the police at Ghaziabad.

  Principle. An arrest needs justification beyond lawful power. On request, a friend or relative must be told, and the entry is made in the diary.

  Why it matters. It stops routine arrest.

• D.K. Basu v. State of West Bengal (1996)

  Facts. Letters and newspaper reports pointed to deaths in police custody.

  Principle. The Court laid down eleven binding requirements for arrest and detention and allowed compensation for custodial violence.

  Why it matters. It guards against custodial violence.

• A.K. Roy v. Union of India (1982)

  Facts. A Member of Parliament was detained under the National Security Act, 1980.

  Principle. The Act is valid. There is no absolute right to a lawyer before the Advisory Board. The 44th Amendment's change to clause (4) is not in force.

  Why it matters. It is the leading case on preventive detention.

• K.V. Subba Rao v. State of Andhra Pradesh (1966)

  Facts. A man was detained under Rule 30 of the Defence of India Rules in 1965.

  Principle. A detention order can be challenged for malice, which must be pleaded and proved. The petition was dismissed.

  Why it matters. It shows how hard it is to prove malice.

How to write this answer in the exam

Key points to remember

• Clauses (1) and (2): grounds, lawyer, magistrate in 24 hours excluding travel.
• Clause (3): enemy aliens and preventive detainees are outside clauses (1) and (2).
• Clause (4): three months, then the Advisory Board. The 44th Amendment's change is not notified.
• Clause (6) allows withholding facts against the public interest. Clause (7) lets Parliament make longer rules.
• Joginder Kumar (1994): no routine arrest; a friend or relative informed.
• D.K. Basu (1996): eleven binding requirements; compensation for custodial violence.
• A.K. Roy (1982): no absolute right to a lawyer before the Advisory Board.

Quick self-test

Related topics

• Right to Life and Personal Liberty
• Privilege against Self-incrimination
• Right to Education