Article 22

Article 22 of the Constitution of India provides essential procedural safeguards to individuals in matters relating to arrest and detention. It is designed to protect personal liberty while allowing the State to maintain public order and national security when necessary. Article 22, therefore, represents a careful constitutional balance between individual rights and state authority.

Constitutional Context and Scope

Article 22 falls under Part III of the Indian Constitution, which enumerates the Fundamental Rights. It applies to all persons, including citizens and non-citizens, with specific exceptions in certain cases. The Article is divided into seven clauses, addressing two distinct situations:

1. Ordinary Arrest and Detention – covered by Clauses (1) and (2).
2. Preventive Detention – governed by Clauses (3) to (7).

While Clauses (1) and (2) uphold fundamental safeguards available to any person under arrest, the subsequent clauses provide for preventive detention, a measure intended to prevent potential offences rather than to punish past acts.

Safeguards in Ordinary Arrest and Detention

Article 22(1) and (2) provide procedural rights to individuals who are arrested under ordinary circumstances.

• Right to be Informed: Every person who is arrested must be informed, as soon as possible, of the grounds for arrest. This ensures transparency and guards against arbitrary detention.
• Right to Legal Representation: The arrested individual has the right to consult and be defended by a legal practitioner of their choice. This embodies the principle of fair trial and natural justice.
• Production Before a Magistrate: Under Clause (2), a person arrested must be produced before the nearest magistrate within 24 hours of the arrest. The period of travel from the place of arrest to the magistrate is excluded from this time limit.
• Limit on Police Custody: No one can be detained beyond 24 hours without the magistrate’s authorisation. This safeguard prevents abuse of police powers and upholds judicial oversight.

These guarantees are reinforced by various judicial pronouncements, ensuring that law enforcement agencies adhere strictly to due process.

Preventive Detention: Meaning and Provisions

Preventive detention refers to the imprisonment of a person without trial, based on the anticipation that they might commit an act prejudicial to public order, national security, or the interests of the State. While this concept is exceptional in democratic societies, the framers of the Indian Constitution retained it due to India’s complex socio-political and security concerns.
Under Clauses (3) to (7) of Article 22, preventive detention laws are constitutionally permitted but subject to procedural checks:

• Clause (3): The safeguards mentioned in Clauses (1) and (2) do not apply to enemy aliens or individuals detained under preventive detention laws.
• Clause (4): No person shall be detained under preventive detention for more than three months unless an Advisory Board approves the extension. The Board must consist of judges who have been or are qualified to be High Court judges.
• Clause (5): The detained person must be informed of the grounds for detention as soon as possible and allowed to make a representation against it.
• Clause (6): However, the authority may withhold facts from the detainee if disclosing them is considered against the public interest.
• Clause (7): Parliament is empowered to determine by law the maximum period of preventive detention and the procedures of the Advisory Board.

Advisory Board and Legislative Framework

The Advisory Board serves as a constitutional check against misuse of preventive detention powers. It reviews detention orders to ascertain whether there is sufficient cause for continued detention.
Parliament, under Article 22(7), has enacted several laws governing preventive detention, including:

• The National Security Act (NSA), 1980 – allows detention of individuals to maintain public order and national security.
• The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974 – addresses economic offences related to smuggling.
• The Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980.

These legislations outline the maximum period of detention, review procedures, and the rights of detainees under preventive detention.

Judicial Interpretation and Landmark Judgments

The Supreme Court of India has consistently examined Article 22 in the light of fundamental rights, particularly Article 21 (Right to Life and Personal Liberty), to ensure that preventive detention laws do not erode the essence of liberty.

• Kanu Sanyal v. District Magistrate, Darjeeling (1973): The Court clarified that preventive detention laws are preventive, not punitive, and procedural fairness must be maintained.
• A.K. Roy v. Union of India (1982): The Court upheld the constitutional validity of preventive detention laws but emphasised the necessity of procedural safeguards.
• Maneka Gandhi v. Union of India (1978): Expanded the interpretation of Article 21 and Article 22, stressing that any procedure depriving liberty must be just, fair, and reasonable.
• D.K. Basu v. State of West Bengal (1997): The Supreme Court issued detailed guidelines for arrest and detention, including the right to inform relatives, medical examination, and maintenance of arrest records to prevent custodial abuse.

These rulings collectively reinforced the judiciary’s role in safeguarding civil liberties against arbitrary state action.

Exceptions and Public Interest Considerations

Article 22(3) carves out exceptions for enemy aliens and individuals detained under preventive detention laws. In such cases, ordinary procedural protections like immediate production before a magistrate or right to counsel may not apply.
However, even in preventive detention, the Constitution imposes limitations to prevent indefinite or arbitrary detention. The requirement of Advisory Board review and communication of detention grounds ensures a minimum standard of fairness and accountability.

Relationship with Other Fundamental Rights

Article 22 operates in conjunction with Articles 19 and 21. Together, they form the constitutional triad that upholds personal liberty, freedom of movement, and protection from arbitrary state action. While Article 21 protects life and liberty, Article 22 provides procedural mechanisms to secure that protection during arrest and detention.
Preventive detention laws, although exceptional, must satisfy the tests of reasonableness, proportionality, and necessity under constitutional scrutiny.

Contemporary Relevance and Criticism

Preventive detention continues to be a subject of debate in India. Critics argue that it contradicts democratic ideals by allowing detention without trial, leading to potential misuse by authorities. Concerns over human rights violations, custodial torture, and political misuse have prompted calls for stricter oversight and periodic review.
Nevertheless, the State justifies preventive detention as a security measure in cases involving terrorism, organised crime, and threats to public order. The judiciary, while recognising its necessity, insists on procedural fairness and periodic judicial review to prevent excesses.
In the modern context, preventive detention laws such as the National Security Act (1980) remain active, especially in matters of national integrity and public safety. Courts continue to stress the importance of procedural compliance to maintain the constitutional balance between liberty and security.

Significance

Article 22 remains one of the most critical provisions safeguarding individual rights in India’s criminal justice system. It ensures that arrests and detentions, though sometimes necessary for maintaining order, are conducted within constitutional boundaries. By combining rights-based protections with state security provisions, Article 22 underscores the democratic principle that liberty may be restrained, but never without lawful and just cause.