Protection against arrest and detention under article 22

Protection against arrest and detention under article 22

Introduction

Article 22 provides us the right against arrest and detention. It is in a way safeguard our fundamental right under Article 21(right to life and personal liberty) but in another way restrict the same. As there is difference between arrest and detention, in arrest a person is already accused of an offence,” A person arrested under a warrant issued by the court is not “arrested” within the meaning of clause (1) and (2) of article 22.” AIR 1953 SC 10(15), but in detention a person is detained under appreciation that the persons can cause chaos in the society. The Article got attacked over the course of time but the worst attack was at the time of the National Emergency 1975.

Article 22(1)

Ground of Arrest– any person who is arrested under ordinary Law have the right to know the ground of arrest and it is the duty of the policeman to tell him about the ground of arrest, if the policeman fails to do so the arrest would be illegal.

  • Merely informing the arrested person the section of a penal statute under which the offence is alleged to have been committed is not a sufficient compliance. AIR 1956 All 56(59,61)
  • The ground must have to be communicated to the detenu in a language he/she understand and when the grounds are communicated in writing, should be in a script which that a detenu can understand.
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Legal Aid- Article 22 clause (1) gives the right to the accused to be defended by a lawyer of his/her choice. A person who is not able to appoint the lawyer on his/her expense, then the state is under a constitutional mandate to provide a lawyer,” if the lawyer is not provided to the accused, the trial itself may run into the risk of been vitiated as contravening Article 21.” AIR 1973 SC 1377
Where an accused has been arrested, his right under clause (1) to be defended by a pleader is not affected by the fact that the court before whom he is tried has no power to pass a sentence of imprisonment. AIR 1966 SC 1910(1922)

Sometimes there is a situation in which the Bar Association passes a resolution not to defend a person in court, this we have seen sometimes, as example when the Hyderabad Bar Association passed a resolution not to defend the four accused of rape.
The supreme court in the case of A.S. Mohammed Rafi vs State of Tamil Nadu 2010, held that such a resolution is wholly illegal and it is against the professional ethics. However, wicked a person maybe, he has a right to be defended in the court of law.

Article 22(2)

This Article gives right to a person who is arrested to be produced before the nearest magistrate within 24 hours excluding the time of travel. When he is produced before the court it is the duty of the magistrate to confirm whether he was informed about the ground of arrest and if the magistrate is satisfied by the reasoning he has to direct accordingly.

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Article 22(3)

Article 22 clause (3) talks about the exception of Article 22 clause (1) and (2). The right available to a person can be curtailed when the person is an alien enemy or who is arrested under preventive detention laws. No person can be kept in preventive detention for more than two months, if he has to be kept beyond two months then an advisory board have to be constituted which have to be satisfied and recommend the same.

Article 22(4)

Article 22 clause (4) talks about the constituent and eligibility of a person in the advisory board. It also limits the power of the Parliament to make law in respect to preventive detention, that is if the law is made which provide a preventive detention for a person more than 2 months then an advisory board should be constituted according to the provision of clause 4(a) and the board should be satisfied for increasing the time limit of a person detained.

  • The advisory board shall consist of chairman;
  • Advisory board should not have less than two members;
  • A chairman should be a judge of an appropriate high court;
  • The second person has to be a retired or serving judge of a high court.

Article 22(5)

This Article talks about the right of a person detained under preventive detention law. That the detenu have to be informed of the ground of arrest as soon as possible so that the detenu can exercise his right to approach to the court of law. The writ of habeas corpus can be filed in this case.

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Article 22(6)

This Article talks about the exception that are imposed on Article 22 clause (5). The exception reads as” 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 consider to be against the public interest to disclose.”

• “Absolute immunity can be claimed by the detaining authority as to the decision arrived and it is open to the courts to see whether there has been due to proper application of mind and that all the relevant and vital materials for the purpose have been noticed, adverted to and considered.” AIR 2002 SC 1460(1467)

• “Clause (6) of Article 22 gives right to the detaining authority not to disclose facts, which they considered not desirable to be disclosed in Public Interest but that does not mean that what is not stated or considered to be withheld on that ground must be disclosed, and if not disclosed, there is a breach a fundamental right.” AIR 1951 SC 157(163)

Article 22(7)

Article 22 clause (7) talk about the power of the Parliament to make law related to preventive detention.

Conclusion

Through this article we get to know about the protection that are available to a person when he/she is arrested or detained. A problem with preventive detention law is that its scope is very wide without any specific limitation, with gives a chance to make many interpretations.

Author: Devanshu Jain,
SLS Nagpur

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