Article 22. Protection against arrest and detention in certain cases.
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours.
(3) Nothing in clauses (1) and (2) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention.
(5) 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.
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
(7) Parliament may by law prescribe
(a) the circumstances under which, and the class or classes of cases in which, 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 in accordance with the provisions of sub clause (a) of clause (4);
(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of clause (4)
In the case of STATE OF MADHYA PRADESH V SHOBHARAM , 1966 it was held that the rights given by Article 22(1) and (2) are absolute in themselves and do not depend on other laws. Even though Articles 21 and 22 go together but they cannot be treated as inter-related or inter-dependent. In a way Article 22 advances the purpose of Article 21, as it not only specifies some guaranteed rights available to persons arrested or detained but also lays down, the manner to deal with persons detained preventively. Art. 22 (3) specifies two exceptions to the fundamental rights otherwise guaranteed to the arrested persons under Clause (1) & (2), i.e., these protections are not available in case of an enemy alien and a person arrested or detained under any law providing for preventive detention.
It has been held, in the case of Hussainara Khatoon vs. State of Bihar, 1979 that right to free legal aid at the cost of the State (Article 22) to an accused who cannot afford legal services for reasons of poverty, indigence or incommunicado situation is a part of fair, just and reasonable procedure under Article 21 of the Indian Constitution. It was also held that he right to speedy trial is an inalienable right under Article 21 of the Indian Constitution.
In the case of D.K. BASU VS. STATE OF WEST BENGAL, 1997 the Supreme Court laid down the guidelines to be followed by the Central and the State investigating authorities in all cases of arrest and detention.
The petitioner wrote a letter addressed to the Chief Justice drawing his attention to certain news items published in the Telegraph and the Indian express, regarding deaths in police lockups and custody and this letter was treated as a writ petition by the Court.
The court not only issued the guidelines but, also went to the extent that any failure by the officials to comply to such guidelines would not only subject them to departmental actions but would also amount to contempt of Court.
Some basic guidelines were:
1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designation and their particulars must be recorded in a register.
2. A memo of arrest shall be prepared by the police officer at the time of arrest, which shall be attested by at least one witness, who may either be a family member of the arrestee or a respectable person of the locality from where the arrest is made. The memo shall be counter-signed by the arrestee and it shall also contain the time and date of arrest.
3. The arrestee or the detenue who is in custody in a police station or interrogation centre or other lock-up, shall be entitled to have a friend, relative or other person known to him or having interest in his welfare to be informed, as soon as practicable, about his arrest or detention at a particular place.
4. If the next friend or relative of the arrestee lives outside the district/town, the police must notify the time, place of arrest and venue of custody of an arrestee to the police station of the area concerned. This should be done telegraphically within a period of 8 to 12 hours after the arrest.
5. The arrestee must be made aware that the moment he is arrested or detained he has the right to give this information to someone.
6. The arrest of the person disclosing the name of his/her next friend who has been informed about the arrest, the names and the details of the police officials in whose custody the arrestee is, must be entered in the diary at the place of detention.
7. The arrestee, as per his request, shall be examined at the time of his arrest. Any major or minor injuries if present on his/her body must be recorded at that time. The “inspection memo” must be signed both by the arrestee and the police officer effecting the arrest. A copy of the same is to be provided to the arrestee.
8. A trained doctor on the panel of approved doctors appointed by the Director, Health Services, should be conducting medical examination of the arrestee every 48 hours while he is detention in custody.
9. Copies of all above stated documents should be sent to Illaqa Magistrate for his record.
10. Permission may be given to the arrestee to meet his lawyer during interrogation, but not throughout the interrogation.
11. The police officer causing the arrest should be communicating the information regarding the arrest to a police control room at all district and state headquarters, within 12 hours of making the arrest. This information should be displayed on a conspicuous notice board at the police control room.
In Nandini Sathpathy v. P.L.Dhani 1978 , it was observed that the spirit and sense of Art.22 (1) is that it is fundamental to the rule of law that the services of a lawyer shall be available for consultation to any accused person under circumstances of near custodial interrogation. The Court however, clarified that the lawyer cannot harangue the police, but may help his client and complain on his behalf.
The Parliament has wide legislative jurisdiction in the matter of preventive detention under entry 9, List I, for reasons connected with defence, foreign affairs, or the security of India. Under entry 3 List III, Parliament as well as the State Legislatures can concurrently make a law for reasons connected with security of State, maintenance of public order, or maintenance of supplies and services essential to the community.
Preventive detention means detention of a person without trial and conviction by a court, merely on the basis of suspicion or reasonable probability in the mind of an executive authority that the detenue has the potential of committing prejudicial act. In the matter of A.K. Gopalan v State of Madras AIR 1950 it was stated that: Preventive detention has been regarded as sinister-looking feature out of place in a democratic Constitution, necessarily designed to prevent the abuse of freedom by anti-social and subversive elements which might imperil the national welfare.
The Constitution (Forty-Fourth Amendment) Act, 1978 amended Article 22 for introducing a few more safeguards in case of preventive detention which are as follows:
(i) The maximum period for which a person may be detained without obtaining the opinion of the advisory board has been reduced from three to two months. In all cases of preventive detention beyond two months, advisory board is to be consulted. There will be no preventive detention beyond two months unless the advisory board reports that there is in its opinion sufficient cause for such detention.
(ii) An advisory board is to consist of a chairman and not less than two other members, the chairman being a serving Judge of the appropriate High Court and the other two members being the serving or retired High Court Judges. The board is to be constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court. (iii) No person is to be kept in preventive detention beyond the maximum period prescribed by any law made by the Parliament.
However, the changes have not yet been notified and these constitutional amendments have not yet come into effect and Articles 22 (4) to (7) still continue to be the same as they stood before the amendment.
Sophia Gulam Mohd. Bhan v State of Maharashtra 1999 held: An effective representation is not possible against the detention order unless copies of material documents considered and relied upon by the detaining authority in arriving at his satisfaction to detain the detenue were supplied to him.
In Sunil Batra v. Delhi Administration, the petitioner was sentenced to death by the Delhi session court and his appeal against the decision was pending before the high court. He was detained in Tihar Jail during the pendency of the appeal. He complained that since the date of conviction by the session court, he was kept in solitary confinement. It was contended that Section 30 of Prisoners Act does not authorize jail authorities to send him to solitary confinement, which by itself was a substantive punishment under Sections 73 and 74 of the Indian Penal Code, 1860 and could be imposed by a court of law and it could not be left to the whim and caprice of the prison authorities. The Supreme Court accepted the argument of the petitioner and held that imposition of solitary confinement on the petitioner was violative of Article 21.
A. K. Roy, Etc. v/s Union of India 1981, The petitioner in the present case is Shri AK Roy who is a Marxist member of the parliament, while the respondent is the Union of India. The Supreme Court was approached through Article 32 of the Indian Constitution whereby the validity of the National Security Ordinance, 1980, which was passed in order “to provide for preventive detention in certain cases and for matters connected therewith” The Act was held to be valid but court issued some guidelines:
· Inform his relatives or friends in writing about his detention along with place of detention.
· Must be detained in place he resides habitually and at some other place in exceptional circumstances only.
· No punitive treatment.
· He is entitled to his books, writing material, home food, friends.
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