Article 22 of the Indian Constitution

Article 22 of the Indian Constitution provides protection to individuals against arbitrary arrest and detention. It ensures certain fundamental rights

Article 22 of the Indian Constitution: Protection of Rights in Case of Arrest and Detention

Article 22 of the Indian Constitution provides protection to individuals against arbitrary arrest and detention. It ensures certain fundamental rights for people who are arrested or detained under normal laws as well as preventive detention laws.

This article is crucial because it balances individual liberty with the need for state security.

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Key Provisions of Article 22

Article 22 consists of two major parts:

1. Rights of an Arrested Person (Clauses 1 & 2) – Protects individuals from arbitrary arrest under ordinary law.
2. Preventive Detention (Clauses 3 to 7) – Grants the government power to detain individuals without trial in exceptional cases.

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1. Rights of an Arrested Person (Clauses 1 & 2)

If a person is arrested under ordinary law, they are granted the following protections:

(a) Right to Be Informed of the Grounds of Arrest (Article 22(1))

• Any arrested person must be informed of the reason for their arrest as soon as possible.
• Prevents secret arrests and ensures transparency.

(b) Right to Consult and Be Defended by a Lawyer (Article 22(1))

• The arrested person has the right to hire a lawyer of their choice.
• If they cannot afford one, the State must provide a legal aid lawyer.

Landmark Case: Hussainara Khatoon v. State of Bihar (1979) – The Supreme Court ruled that the right to free legal aid is a fundamental right under Article 21 and Article 22.

(c) Right to Be Produced Before a Magistrate Within 24 Hours (Article 22(2))

• Any arrested person must be presented before a magistrate within 24 hours of arrest.
• This prevents illegal detention and police torture.

(d) Protection Against Detention Beyond 24 Hours Without Judicial Approval (Article 22(2))

• A person cannot be detained beyond 24 hours without the permission of a magistrate.
• This prevents police from misusing power to keep someone in custody indefinitely.

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2. Preventive Detention (Clauses 3 to 7)

What is Preventive Detention?

• Ordinary arrest happens after a crime is committed.
• Preventive detention happens before a crime is committed, to prevent a person from acting against national security or public order.

Article 22(3) to 22(7) deal with preventive detention.

(a) No Rights for Preventive Detention (Article 22(3))

• If a person is detained under preventive detention laws, they do not have the rights mentioned in Article 22(1) and 22(2).
• This means they can be detained without being told the reason or without being presented before a magistrate.

(b) Maximum Period of Preventive Detention (Article 22(4))

• A person cannot be detained for more than 3 months unless:
  1. An Advisory Board, led by a judge, approves the detention.
  2. Parliament passes a law allowing a longer detention period.

(c) Right to Know the Reasons for Detention (Article 22(5))

• Even under preventive detention, the detained person must be informed of the reasons as soon as possible.
• However, the State can refuse to disclose facts if it affects public interest.

(d) Right to Make a Representation (Article 22(5))

• A detained person has the right to appeal against their detention.

(e) Parliament’s Power to Prescribe Maximum Preventive Detention Period (Article 22(7))

• Parliament can make special laws allowing preventive detention beyond 3 months without an Advisory Board’s approval.

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Preventive Detention Laws in India

Some major preventive detention laws include:

✔ National Security Act (NSA), 1980 – Allows detention up to 12 months if a person threatens national security.
✔ Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA), 1974 – Prevents smuggling and foreign exchange violations.
✔ Unlawful Activities (Prevention) Act (UAPA), 1967 – Prevents terrorist activities and unlawful organizations.
✔ Preventive Detention Act, 1950 – Was one of the first laws for preventive detention in India (now repealed).

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Landmark Cases on Article 22

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

• The Supreme Court initially upheld preventive detention and ruled that Article 22 was independent of Article 21 (Right to Life).

2. Maneka Gandhi v. Union of India (1978)

• Overruled A.K. Gopalan and held that preventive detention must meet the principles of natural justice.

3. ADM Jabalpur v. Shivkant Shukla (1976) (Habeas Corpus Case)

• During the Emergency (1975-77), the Supreme Court ruled that preventive detention cannot be challenged in court.
• Later overturned, recognizing that right to life and liberty cannot be suspended.

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Criticism of Article 22

🔴 Weakens personal liberty – Preventive detention allows detaining people without proof.
🔴 Misuse by governments – Many governments use preventive detention laws to silence dissent.
🔴 Lack of accountability – No judicial review in early stages of preventive detention.

Example: Several journalists and activists have been detained under NSA and UAPA for political reasons.

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Conclusion

Article 22 aims to protect personal liberty but also allows preventive detention in exceptional cases. While it provides safeguards against arbitrary arrest, the preventive detention clauses weaken individual rights. Over time, courts have tried to ensure greater accountability in preventive detention cases.

Key Takeaways:

✔ Ordinary Arrest – Right to lawyer, information, and judicial oversight.
✔ Preventive Detention – No immediate rights, but limited detention period.
✔ Courts have gradually strengthened protection against misuse.