Safeguards against arbitrary arrest and detention

 · 4 mins read

According to procedure established by law, no person can be deprived of his life or personal liberty. Article 21 of the Indian constitution provides this right. The negligible procedural requirements that must be met under any law implemented by the legislature dealing with the deprivation of an individual's life and personal liberty is specified in Article 22 of the Indian Constitution.

Article 22 provides both citizens and non-citizens with protection against arrest and detention. Detention is classified into two types: punitive detention and preventive detention. Pinnately, tension is used to punish a person for what he has already done, whereas the goal of preventive detention is to keep him from doing it if there is a reasonable suspicion that his actions will cause harm to society or endanger the government's security.

Article 22 clauses (1) and (2) provide rights or safeguards for people arrested under ordinary laws and held in punitive detention. They have the following rights:

  1. The right to be informed of the grounds for arrest or detention as soon as possible.

  2. The right to consult with and be represented by a legal practitioner of his choice.

  3. The right to appear in front of the nearest magistrate within 24 hours of arrest.

  4. The right not to be detained in custody for more than 24 hours without the authorisation of a magistrate.

Article 22 clause (3) discusses preventive detention, and Article 22 clauses (4) to (7) discuss the rights available to those detained under preventive detention laws.

Punitive detention is defined as detention after the crime has been committed and under ordinary laws. There are various safeguards available to the person arrested under ordinary law, which are provided in clauses (1) and (2) of Article 22 of the Indian Constitution. The following rights are explained:

This is required to inform the individual of the reason for his arrest. Article 22 is a directive to the arresting officer to immediately disclose the reason for the person's arrest. Article 22 (1) uses the phrase "as soon as possible." A person is not subject to arrest on suspicion of complicity in an offence.

Prior to Maneka Gandhi's case, the court held that it was not necessary to provide a lawyer unless the person specifically requested one. However, as a result of the Supreme Court's ruling and a series of cases, it is clear that the court will be obligated to provide legal assistance to anyone arrested under any ordinary law.

The Supreme Court ruled in Hussainara Khatoon v. Home Secretary, State of Bihar that it is the constitutional right of every accused person who is unable to hire a lawyer due to poverty, indigence, or an incommunicado situation to have a free legal service provided by the state.

If detention for more than 24 hours is required, it can only be done under judicial custody. In CBI vs. Anupam Kulkarni, the Supreme Court ruled that if an investigation cannot be completed, a person arrested under section 57 of the Cr.P.C. should be produced before the nearest magistrate within 24 hours. The judicial magistrate can authorise the detention of the accused in either police or judicial custody from time to time, but the total period cannot exceed 15 days.

Clause (3) of Article 22 provides an exception to clauses (1) and (2), stating that these do not apply to an enemy alien or someone arrested and detained under a preventive detention law. Article 22 Clauses (4)– (7) outline the procedure to be followed if a person is arrested under the preventive detention laws. The goal of preventive detention is not to punish a man for something he has done, but to intercept and prevent him from doing it again.

The procedural requirement is contained in clause 22(4) to 22(7) as follows:

  1. No detention for more than three months unless approved by the advisory board.

  2. The retaining authority must communicate the new grounds for such detention as soon as possible.

  3. The detainee must be given the earliest possible opportunity to file an appeal against the detention order.

  4. No detention for more than the maximum period prescribed by a law passed by Parliament under 7 (b).

The constitution's 44th amendment changed Clause (4) of Article 22 by substituting a new clause that reduces the maximum punishment for which a person may be detained without obtaining the opinion of the advice award from 3 months to 2 months.

Many cases have occurred in India in which a person has been arbitrarily arrested or detained, in violation of Article 21 of the Indian Constitution. Arbitrary arrest or detention violates a citizen's fundamental right under Article 21, so the constitution's authors included Article 22 to protect the right to life and personal liberty by protecting the person from arbitrary arrest and detention. According to the provisions of Article 22, a person can be arrested and detained if the proper legal procedure or procedure established by law is followed. As a result, Article 21 is referred to as the constitution's bedrock, and it serves as a foundation for many other articles, such as Article 22.