Article 22 – Indian Constitution [with Explanation]

This article is a compilation of Article 22 as it is. You can understand it well, that’s why its explanation is also given below, you must read it. Its explanation is also available in Hindi, for this you can use the link given below;

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📖 Read This Article in Hindi

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📜 Article 22

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 of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. (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: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7). (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 — 1(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); 2(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 3(c) the procedure to be followed by an Advisory Board in an inquiry under 4sub-clause (a) of clause (4). —————– * (4) shall stand substituted by the Constitution (Forty-fourth Amendment) Act, 1978, s. 3 (date yet to be notified) as— “(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than two months unless an Advisory Board constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court has reported before the expiration of the said period of two months that there is in its opinion sufficient cause for such detention: Provided that an Advisory Board shall consist of a Chairman and not less than two other members, and the Chairman shall be a serving Judge of the appropriate High Court and the other members shall be serving or retired Judges of any High Court : Provided further that nothing in this clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause (a) of clause (7). Explanation —In this clause, “appropriate High Court” means, — (j) in the case of the detention of a person in pursuance of an order of detention made by the Government of India or an officer or authority subordinate to that Government, the High Court for the Union territory of Dehli, (ii) in the case of the detention of a person in pursuance of an order of detention made by the Government of any State (other than a Union territory), the High Court for that State; and (ii) in the case of the detention of a person in pursuance of an order of detention made by the administrator of a Union territory or an officer or authority subordinate to such administrator, such High Court as may be specified by or under any law made by Parliament in this behalf: ————- 1. Sub-clause (a) shall stand omitted by the Constitution (Forty-fourth Amendment) Act, 1978, s. 3(b)(i) (date to be notified). 2. Sub-clause (b) shall stand re-lettered as sub-clause (a) by s. 3(b)(ii), ibid. (date to be notified). 3. Sub-clause (c) shall stand re-lettered as sub-clause (b) by s. 3(b)(iii), ibid. (date to be notified). 4. Sub-clause (a) of clause (4) shall stand substituted as “clause (4)” by s. 3(b)(iii), ibid. (date to be notified).

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🔍 Explanation

Freedom means the absence of external restrictions on an individual. In other words, to have control over one’s own life and destiny and to have the opportunity to freely express one’s desires and activities is freedom.

Talking about India, freedom is a fundamental right here. Actually part 3 of Indian constitution is about fundamental rights. From Article 19 to Article 22 of this, “right to freedom” has been discussed. (As you can see in the chart) We are going to understand Article 22 here;

right to freedom

⚫ Article 19 – Protection of six rights; (1) Expression (2) Conference (3) Association (4) Transmission (5) Residence (6) Trade ⚫ Article 20 – Protection in respect of conviction for offenses ⚫ Article 21 – Life and personal liberty ⚫ Article 21A – Right to elementary education ⚫ Article 22 – Protection from arrest and detention

| Article 22 – Protection against arrest and detention in certain cases

Article 22 can be divided into two parts,

The first part [Articles 22 (1 to 2)] deals with a person who has been arrested at common law or who is known to have committed an offence.

The second part [Article 22 (3 to 7)] deals with matters of preventive detention.

Let us understand this in detail; But before that let us understand what is meant by detention;

निरोध (detention)

Detention means deprivation of liberty. There are mainly two types of detention – (1) Punitive detention – It means depriving a person of liberty by arresting him after a crime. (2) Preventive detention – It means that no person may commit a crime in the future, therefore, arresting him in advance and depriving him of his liberty.

first part :

Clauses 1 and 2 of Article 22 lay down the procedure or authority to be followed while arresting a person. There are mainly three things here –

(a) the right to be informed of the grounds of arrest,

• This right is available so that the arrested person can apply for bail in the appropriate court or think of ways to save himself.

(b) the right to consult and be defended by a legal practitioner of his choice,

(c) the right to appear before a Magistrate within 24 hours (excluding travel time),

• This right is given so that as soon as arrested, they can consult a legal advisor according to their wish.
• Under this, that person gets the right to talk to his lawyer and the funny thing is that the police cannot listen to such conversations.
• If a person does not have the capacity to hire a lawyer, the state will provide a lawyer for him.
  • However, remember here that there was no such system earlier. Article 39A was inserted in the Constitution by the 42nd Constitutional Amendment in 1976 and the State was directed to provide free legal aid at its own expense.
  • In Hussain Ara vs Home Secretary of 1979, the Supreme Court also said that if an accused is not able to engage a lawyer at his own expense, the state should provide him with a lawyer at its own expense.
  • And in this way the National Legal Services Authority Act was brought in 1987 and free legal aid was made available under it.
  • Read National Legal Services Authority: NALSA to understand in detail.

If this provision is not followed and 24 hours have elapsed, the arrested person is entitled to be set free immediately. This is called – Right not to be detained for more than 24 hours without the order of a Magistrate.

◾ If this is not followed and a person is arrested and put in jail, then a right arises to free that person by a habeas corpus petition.

A famous case related to this is Habeas corpus case 1976; Which is an important matter in the field of preventive detention. You must understand this;

◾ It may be remembered here that clauses 1 and 2 of Article 22 provide protection against arrest on the ground of criminal offense or any activity prejudicial to the interest of the State.

◾ It does not cover arrests made under a warrant issued by a court of law. Because before such arrest the person to be arrested is told the grounds of arrest.

The second part :

It deals with matters of preventive detention. Under which the following three protections are included –

(1) According to the fourth clause of Article 22, the custody or detention of a person cannot be extended beyond three months, unless the Advisory Board asks for such extension.

The Advisory Board consists of persons who are or have been judges of a High Court or are eligible to be appointed judges.

(2) According to the fifth clause of Article 22, on what grounds the detention has been done, the answer should be given to the concerned person. However, under section 6 it is not required to be disclosed against the public interest.

(3) Under section 5, the person detained has the right to make a representation against the order of detention.

◾ It is the duty of the government to consider the representation of the detainee without any delay. Apart from this, even if the advisory board said in its report that there is sufficient ground for detention, the government will not be bound by that agreement and if the government wants, considering the representation, it can release the detained person by refusing to confirm the detention order. .

Article 22(7), authorizes the Parliament to make any law providing for preventive detention, procedure to be followed by the Advisory Board in inquiry, etc.

Things to remember,

In case of preventive detention, no allegation is made, and no offense is proved. It is simply based on forecast.

◾ Firstly in 1950 the Preventive Detention Act (Preventive Detention Act 1950) was made. If you have read Article 21, you would remember that the AK Gopalan case was related to this Act. However, it was abolished in 1969.

For more information read – AK Gopalan Case 1950

◾ In 1971, when Indira Gandhi came back to power with absolute majority, she enacted the Internal Security Act in 1971, which became famous as MISA.

And in 1974 made the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974. Which came to be known as COFEPOSA.

And by the 39th Constitutional Amendment, both of these were put in the Ninth Schedule. However, when the Janata Party government came to power after the Emergency was over, they abolished MISA in 1978 but COFEPOSA was allowed to remain.

◾ After this, when Indira Gandhi’s government returned to power again in 1980, she made the National Security Act 1980 (National Security Act 1980). Which is also known as Rasuka.

Apart from this, we can also include UAPA 1967 in this. Although it was made in 1967 itself, it was further tightened after the 2008 Mumbai attacks.

So overall this is Article 22, I hope you have understood. To understand other paragraphs, you can use the link given below.

| Related Article

Hindi Articles	English Articles
⚫ अनुच्छेद 19 ⚫ अनुच्छेद 20 ⚫ अनुच्छेद 21 ⚫ अनुच्छेद 21A	⚫ Article 19 ⚫ Article 20 ⚫ Article 21 ⚫ Article 21A

⚫ Constitution ⚫ Basics of Parliament ⚫ Fundamental Rights ⚫ Judiciary in India ⚫ Executive in India

⚫ Constitution ⚫ Basics of Parliament ⚫ Fundamental Rights ⚫ Judiciary in India ⚫ Executive in India

Disclaimer - The articles and their interpretations presented here are based on the original Constitution (latest edition), DD Basu's commentary on the Constitution (mainly) and various scholars of the Constitution (whose writings are available in newspapers, magazines and audio-visuals on the Internet). We have just tried to make it interesting and easy to understand.