Constitutional Framework GS Paper II

Protection against arrest and detention in certain cases: Article 22

Article 22 Protection against arrest and detention in certain cases ,Constitution of India, 1950Fundamental RightsArticle 22

(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 subclauses (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).

Debate Summary

Draft Article 15A was debated on 15th and 16th September 1949. It was not part of the Draft Constitution, 1948. Instead, the Chairman of the Drafting Committee proposed to insert the following as Draft Article 15A:

’15A. (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 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 this article shall apply-

(a) to any person who for the time being is an enemy alien; or

(b) to any person who is arrested under any law providing for preventive detention;

Provided that nothing in sub-clause (b) of clause (3) of this article shall permit 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, or

(b) such person is detained in accordance with the provisions of any law made by Parliament under clause (4) of this article.

 (4) Parliament may by law prescribe the circumstances under which and the class or classes of cases in which a person who is arrested under any law providing for preventive detention may be detained for a period longer than three months and also the maximum period for which any such person may be so detained.’

The Draft Article provided safeguards for arrested or detained persons, and also carved out exceptions for persons subject to preventive detention.

The Chairman of the Drafting Committee stated that Draft Article 15A was introduced to compensate for dropping ‘due process’ from Draft Article 15 (Article 21). He declared this new Draft Article turned statutory safeguards for detainees into constitutional guarantees, thereby protecting personal liberty from arbitrary action.

Some members felt the Draft Article did not go far enough. One proposed a series of amendments, one of which gave the accused the right to be defended by a lawyer of their choice. He argued that this was necessary to bring the Draft Article in line with the existing statutory provisions. This was accepted by the Assembly.

Other members were concerned about the lack of safeguards for preventively detained persons. Several wanted to reduce the permissible time period for this detention, to periods ranging from two months to fifteen days to twenty four hours. One member wanted to extend the right to be informed of grounds for one’s arrest to such detainees, arguing that this would restrain police officers from indiscriminately arresting people. All of these amendments were rejected by the Assembly.

Members pointed out that the provisions relating to the Advisory Board were vague and did not contain guidelines for its functioning or safeguards for the rights of detained persons. In response to these concerns, the Chairman proposed to amend clause (4) to give Parliament the power to frame laws setting out the procedure to be followed by the Advisory Board. This was accepted by the Assembly.

The amended Draft Article was adopted on 16th September 1949.

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