Article 22 of Indian Constitution

The Indian Constitution is revered as the supreme law of the land, enshrining the fundamental rights and liberties of its citizens. Among these rights, Article 22 occupies a crucial position by providing protection against arbitrary arrest and detention. It serves as a bulwark against state overreach and abuse of executive power, ensuring that no person is deprived of their liberty without due process of law. 

Text of Article 22 of Indian Constitution

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—

(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).

Detailed Analysis of Article 22 of Indian Constitution

Article 22 is a composite provision divided into several clauses, each addressing specific aspects of arrest and detention. A detailed understanding of its clauses is essential to appreciate the constitutional safeguards available to every individual.

Clause 1: Right to be Informed of the Grounds of Arrest

Article 22(1) unequivocally states that no person shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. This provision is fundamental because it mandates that the reasons for an arrest must be communicated to the arrestee in a clear and comprehensible manner. 

The purpose is to ensure that the person understands the basis of the state’s action against them and is thereby enabled to challenge the detention if it is arbitrary or unlawful. Moreover, the arrestee must also be informed of their right to consult, and to be defended by, a legal practitioner of their choice.

Clause 2: Production Before a Magistrate within 24 Hours

Article 22(2) complements the first clause by requiring that any person arrested or detained must be produced before the nearest Magistrate within 24 hours of arrest. This provision, which excludes the time necessary for travel, is critical in ensuring that judicial oversight is promptly exercised. 

It prevents prolonged detention without judicial scrutiny and is intended to act as a safeguard against the misuse of executive power. Should the detention continue beyond this period without judicial authorisation, it is rendered illegal.

Clause 3: Exceptions to Clauses 1 and 2

Clause 3 provides important exceptions to the protections guaranteed under the first two clauses. Specifically, it states that the rights to be informed and produced before a Magistrate do not apply to:

• Enemy aliens.
• Persons arrested or detained under any preventive detention law.

This exception recognises that in certain circumstances—especially those involving national security and public order—the state may need to detain individuals without adhering to the full spectrum of procedural safeguards. 

However, such exceptions are not without their own checks and balances, as subsequent clauses of Article 22 impose limitations on the duration and manner of detention.

Clause 4: Duration of Preventive Detention and Advisory Board Approval

Article 22(4) introduces a temporal limitation on preventive detention by stipulating that no person can be detained for more than three months under any preventive detention law unless the detention is justified by the opinion of an Advisory Board. 

This clause underscores the principle that even under preventive detention, where the state’s power to detain is exercised based on suspicion rather than proof of a crime, the detention must be subject to periodic review and accountability. The role of the Advisory Board is thus pivotal—it acts as a quasi-judicial body that assesses whether the extended detention is warranted.

Clause 5: Disclosure of Grounds and Right to Representation

Under Article 22(5), it is mandatory for the detaining authority to disclose the grounds for arrest or detention to the person concerned. Furthermore, the detained individual is afforded the opportunity to make a representation against the detention order. 

This clause is critical because it provides a mechanism for challenging the detention and ensures that the detainee’s voice is heard. Failure to disclose the grounds in a timely and clear manner can render the detention unconstitutional.

Clause 6: Exceptions for Public Interest

Article 22(6) empowers the detaining authority to withhold information if its disclosure is deemed to be against the public interest. While this exception allows for a degree of discretion in matters where revealing the full facts might jeopardise state security or public order, it is bounded by the need to ensure that the overall purpose of Article 22—to prevent arbitrary detention—is not undermined.

Clause 7: Parliamentary Empowerment to Prescribe Conditions

Finally, Article 22(7) vests the Parliament with the power to prescribe the circumstances or classes of cases in which a person may be detained for more than three months without the need for an Advisory Board’s opinion. This clause effectively bridges the gap between judicial safeguards and legislative discretion, allowing Parliament to enact laws that can extend detention under specified conditions. However, such laws must always be in consonance with the constitutional framework and the fundamental principles of justice and fairness.

Preventive Detention: Concept and Constitutional Safeguards

Preventive detention refers to the detention of an individual not for punishment after a conviction but as a precautionary measure to prevent the commission of an offence. The logic behind this measure is that if there is reasonable apprehension that a person may engage in activities prejudicial to the security of the state or public order, detaining that person temporarily might avert potential harm. However, unlike punitive detention, which is imposed after a trial, preventive detention bypasses the standard judicial process. This inherent deviation from the normal legal process necessitates robust safeguards, as embodied in Article 22.

Rights of an Arrested Person Under Article 22

Article 22 is not solely about preventive detention; it also lays down essential rights for every person who is arrested. These rights are designed to ensure that the process of arrest and subsequent detention is conducted in a manner that respects the dignity and freedom of the individual.

Right to be Informed of the Grounds of Arrest

At the core of Article 22 is the right of an arrested person to be informed, as soon as possible, of the grounds of their arrest. This provision is critical because it empowers the arrestee to understand why they are being deprived of their liberty and to mount a challenge if the arrest is found to be arbitrary. 

In the landmark case of Prabir Purkayastha v. State (2024), the Supreme Court held that failing to inform the individual of the grounds of arrest renders the detention illegal. In this case, the Delhi Police arrested Prabir Purkayastha without disclosing the reasons for his arrest in a timely manner, thereby violating Article 22(1).

Right to Legal Representation

Equally significant is the right to consult and be defended by a legal practitioner of one’s choice. This ensures that an arrested person is not left to navigate the complexities of the legal system alone. 

Judicial pronouncements such as those in Hussainara Khatoon v. Home Secretary, State of Bihar (1979) and State of West Bengal v. Anwar Ali Sarkar (1952) have underscored that access to legal representation is a fundamental right. For individuals who cannot afford legal services, the State is mandated to provide free legal aid, failing which the trial could be rendered null and void as a violation of the right to life and liberty under Article 21.

Right to a Timely Judicial Hearing

Article 22(2) stipulates that every person arrested or detained must be produced before the nearest Magistrate within 24 hours, excluding the time necessary for travel. This requirement is designed to ensure that an independent judicial authority reviews the detention without undue delay. The timely judicial intervention acts as a critical check on the executive’s power and helps prevent prolonged or arbitrary detention.

Right to Fair Trial and Procedural Safeguards

Beyond the initial stages of arrest and detention, the broader framework of Article 22 is closely linked with the right to a fair trial. The principles enshrined in Article 22 are supported by other fundamental rights, particularly Article 21, which guarantees the right to life and personal liberty. 

Together, these provisions ensure that any deprivation of liberty is subject to a transparent process, replete with opportunities for legal redress and representation. Judicial guidelines, as laid down in cases like D.K. Basu v. State of West Bengal (1997), further detail the responsibilities of the police and the state in maintaining due process during arrests.

Landmark Judgements Related to Article 22

The practical application of Article 22 has been shaped significantly by the judiciary through a series of landmark judgements. These cases have not only clarified the scope of Article 22 but also highlighted the potential consequences of its breach.

A.K. Gopalan v. State of Madras (1950)

One of the earliest cases to address the issue of preventive detention, A.K. Gopalan v. State of Madras was pivotal in setting the stage for later debates on the balance between state security and individual liberty. In this case, the petitioner challenged the validity of the Preventive Detention Act on the grounds that it violated Articles 13, 19, 21, and 22 of the Constitution. 

While the majority opinion upheld the law, the judgement also acknowledged the need for strict adherence to the procedural safeguards outlined in Article 22 to prevent misuse.

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

In Joginder Kumar v. State of U.P., the Supreme Court elaborated on the procedural requirements that must be followed during an arrest. The Court laid down that an arrested person has the right to have a friend, relative, or any person likely to take an interest in their welfare informed of their arrest. 

Moreover, the police officer is under a duty to inform the arrestee of this right at the earliest possible opportunity and to ensure that proper entries are made in the police diary. This case reinforced the principle that the transparency and documentation of the arrest process are indispensable components of safeguarding individual rights under Article 22.

D.K. Basu v. State of West Bengal (1997)

The landmark judgement in D.K. Basu v. State of West Bengal is widely cited for its comprehensive guidelines on arrest procedures. The Court issued detailed directives to prevent custodial violence and abuse, emphasising that the arresting officer must inform the detainee of their right to legal representation, the right to inform a friend or relative, and must ensure that all procedural formalities are strictly followed. 

These guidelines have since become a benchmark for evaluating the legality and fairness of arrests.

Arnesh Kumar v. State of Bihar (2014)

The case of Arnesh Kumar v. State of Bihar further underscored the need for a systematic approach to arrest procedures, particularly in cases involving allegations under specific statutes such as Section 498A of the Indian Penal Code. The Supreme Court in this matter highlighted that police officers must adhere to a checklist and ensure judicial oversight during the arrest and remand process. 

The decision was a direct response to concerns about the misuse of arrest powers, especially in sensitive cases involving personal relationships and family disputes.

Recent Developments: Prabir Purkayastha v. State (2024)

A recent and significant case in the context of Article 22 is Prabir Purkayastha v. State (2024). In this case, the Supreme Court invalidated the arrest of Prabir Purkayastha, the founder-editor of Newsclick, on the grounds that the Delhi Police failed to inform him of the grounds for his arrest before taking him into custody. The police had taken him for a remand hearing at 6:30 am without prior notice, and his legal representatives were only informed after his insistence post-arrest. 

The remand application was deficient—it was unsigned and lacked critical details such as the time and reasons for the arrest. The judgement in this case serves as a potent reminder that the procedural mandates of Article 22(1) are not merely formal requirements but essential guarantees of justice.

Conclusion

Article 22 of the Indian Constitution stands as a testament to the framers’ commitment to protecting individual liberty against arbitrary state action. Its multifaceted provisions, ranging from the requirement to inform an arrestee of the grounds of arrest to the procedural checks on preventive detention, have been instrumental in safeguarding citizens from abuse of power. The evolution of judicial interpretations—from A.K. Gopalan to Joginder Kumar, D.K. Basu, and the more recent Prabir Purkayastha—demonstrates the dynamic nature of this provision and its enduring relevance in the Indian legal landscape.

Researcher: Harshita Fatesaria (Jindal Global Law School)

Author: Aishwarya Agrawal