September 17, 2021

Article 22 of the Indian Constitution and Relevant Case Laws


Article 22 of the Constitution of India deals with protection in cases of arrest and detention. It comes under the realm of the fundamental rights as provided by the Constitution. Until the case of Maneka Gandhi,[1] this was considered as the sole protection against laws that deprived someone of their right to life and personal liberty. Under Article 22 (1) and (2), the rights of an arrested person has been laid out and are as follows – they have the right to know the reasons for their arrest, as soon as possible; has the right to be represented and consult lawyer of their choice; the arrested person should be presented before the Magistrate within 24 hours of the arrest; lastly, in the absence of court’s authority, the arrested person cannot be detained in custody for more than 24 hours of arrest.[2]

Significant Judgments

In A.K. Gopalan v State of Madras,[3] it was noted by the minority that Article 22 of the Constitution is not a complete code for protection against preventive detention. In clause (7)(a) of Article 22, the majority interpreted “and” as “or” and said that it was sufficient for the Parliament, if it either stated the circumstances or it prescribed the classes of cases for which the individual will get detained longer than three months without referring to the Advisory Board. So, from the perspective of the majority it was ruled that clause (4) and clause (7) of Article 22 were two independent powers and alternative of each other, which would mean as – option one being that enact a law providing with a longer period of detention with the provision of Advisory Board or option two being making law without having provision of the Advisory Board. [4]

The case of State of Punjab v Ajaib Singh,[5] the Apex Court held that the provision of section 4 under the Abducted Persons (Recovery and Restoration) Act, 1949 did not come under the scope of “arrest and detention” in Article 22 (1) and (2). This is because there was no accusation against the abducted person being taken into custody and getting delivered to the nearest camp by the police officer. The conditions for applying Article 22 (1) are that the arrested person will have this right when they have been accused of or is suspected to commit a crime and have been arrested under the warrant otherwise than given by the Court. The second requirement is that the arrested person should be taken into custody because of accusation or apprehension of commitment of a quasi-criminal or criminal nature or any other offence against the State.[6]

The judgment of Shibban Lal Saksena v State of UP,[7] deals with clause (5) of Article 22 of the Indian Constitution. For his detention, the petitioner was given two reasons, later the authority revoked one reason. The petitioner’s contention was that he should not be detained since now that one ground was revoked means he should be released. Whereas the State argued that the one reason was also enough for detention. However, the Supreme Court held that the detention was illegal and gave the rational for same that the one ground was insufficient to uphold the detention and when ground is not relevant to the objective of the Act, then the order will not sustain.

The Court in the case of Jayanarayan v State of West Bengal,[8] pronounced four principles with respect to representation of the detained person; 1) the concerned authority must provide the detinue to get himself represented and make it as soon as possible, 2) the authority’s consideration of allowing the detained person of representation is not to be dependent on the Advisory Board’s actions and deliberation of the same, 3) the consideration should not be delayed while not forgetting its citizens’ safety, 4) the Government should give its opinion and judgment regarding the representation before transferring it to the Advisory Board.

In State of West Bengal v Ashok Dey,[9] the legislation – West Bengal Preventive Detention Act’s constitutionality was challenged. It was held by the Apex Court that the subject of preventive detention came under the Concurrent List and as such the State Legislature could pass laws on this matter; however, it was subject to the limitations provided under Article 22 of the Constitution. Clause (4) provides for a limitation no laws can be enacted exceeding three months without confirming with the Advisory Board and clause (7) provides exception for the limitation, being that the Parliament can provide for laws which prescribe exceeded period of limitation without the opinion of the Advisory Board. The only time the State Legislature’s powers will be curbed is when the Parliament provides for a maximum period under clause 7(b). Nowhere in Article 22 is the State Legislature’s power curtailed to extend the period of detention for more than three months, where it can get the confirmation of the Advisory Board as under clause (4).[10]

However, later in Sambhu Nath Sarkar v State of West Bengal,[11] the Supreme Court rejected the majority holding in A.K. Gopalan case. The Court herein observed that if the powers are independent of each other than the safeguards the Constitution makers laid down would be left redundant. This is because then the Parliament can easily pass laws without the intervention of an Advisory board. Additionally, if clause (4)(b) is looked at then it is realized that it is supposed to be there to harmonize both the clauses.

In another case of Fagu Shaw v State of West Bengal,[12] the Court answered the issue whether the Parliament was bound to provide for a maximum period of detention while making preventive detention laws. In this case, the persons had been detained under the Maintenance of Internal Security Act, 1971. The judgement was a 3:2 where the majority ruled that Section 13 of this Act provided for maximum period of detention in continuance of state affairs and this was enough, as per Article 22 (7)(b) and stated that “maximum period” might be directed as in years, months or days or with regards to some event or continuation of some state of affairs.[13]

In Francis Coralie Mullin v UT of Delhi,[14]the Court stated that a detinue has the right to consult lawyer of its choice including for release from preventive detention. However, the Court in A.K. Roy v Union of India [15] never confirmed or rejected this holding. Instead, the Supreme Court held that when the Government or the detaining authority represents itself with legal aid or counsel, the detinue must also be given the same opportunity. Furthermore, the Court also stated that the detinue is also entitled to be assisted by a friend who is not a legal practitioner in the proceedings before the Advisory Board. However, the Board has no obligation to convey this entitlement to the detained person if it never asks for such aid or assistance.[16]

In Joginder Kumar v State of Uttar Pradesh,[17] the Supreme Court laid down guidelines for arrest of a person. The rights of an arrested persons are embodied in Articles 21 and 22 (1) of the Indian Constitution and that they must be safeguarded. To ensure the same, the Court stated that, firstly, if an arrested person, held in custody, requests for a relative or friend or anyone who interest in the welfare of the arrested person, to be told that where he has been detained. Secondly, the arrested person must told be about the above-mentioned right by the police officer and lastly, there has to be an entry made in the diary naming the person who was informed. The duty of the Magistrate is to make sure that these requirements have to be followed by the police officers. The Court pointed out that the guidelines are not exhaustive though.

Article 22 of the Constitution was discussed in D.K. Basu v State of West Bengal,[18] and reiterated the importance of the rights given to arrested person. It further observed that often the power of arresting someone and consequently detaining them, is misused a lot and therefore, laid a comprehensive list of directions during arrest and detention to be followed by the concerned authorities and in case of torture against the arrestee would be entitled to compensation.


Post Maneka Gandhi judgment, the position now is that Article 21 is the provision from which the Article 22 also silently lays its legislations. In the matters of preventive detention laws, not only Article 22 has to be conformed to but also Article 21. Article 22 of the Constitution may prima facie be seen as curtailment to the right of life as provided in Article 21. However, in actuality it is protection to those arrested and detained and provides as an extension to the right to life and personal liberty, with limitations under clauses (3) and (4). There are several statutes which provide for preventive detention on the grounds such as when someone does something that is in prejudice against the nation’s security, or when it is for public safety, and so on.

[1] Maneka Gandhi v Union of India, AIR 1978 SC 597.

[2] INDIA CONST. art. 22.

[3] AIR 1950 SC 27.

[4] Id.

[5] AIR 1953 SC 10.

[6] Id.

[7] AIR 1954 SC 179.

[8] AIR 1970 SC 675.

[9] AIR 1972 SC 1660.

[10] Id.

[11] AIR 1973 SC 1425.

[12] AIR 1974 SC 613.

[13] Id.

[14] AIR 1981 SC 746, 751.

[15] AIR 1982 SC 978.

[16] Phillipa Anne Duke v State of Tamil Nadu, AIR 1982 SC 1178.

[17] (1994) 4 SCC 260.

[18] AIR 1997 SC 610.

Author Details- Harshita Fatesaria (Jindal Global Law School)

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