Protection against Arrest and Detention

Arrest is a legal procedure that revokes personal liberty, which is otherwise recognized as a basic right and guaranteed to all people. Article 22 establishes legal protections against arbitrary detention and arrest. An arrest has significant consequences and may only be performed with the permission of the law and in compliance with the law. In a free and civilized society, an individual must be safeguarded against police atrocities and abuse in order for criminal justice to be administered effectively.

All people have the right to liberty and security, and it is the responsibility of the state to uphold these rights in order for all other rights to have value. However, violations of these rights are prevalent, and unjustified arrests and detentions are common. Numerous procedural safeguards have been established in the Criminal Procedure Code in order to secure the right to security and liberty, and Article 22 includes various other corresponding/incidental protections to make these essential rights a reality.

Rights of Arrested Persons under Ordinary Law

Article 22 clauses (1) and (2) give four rights to anybody detained for any offence under ordinary law. Except for those arrested and held under preventive detention regulations, who are covered by clauses 4–7 of the article, these rights are applicable to both citizens and non-citizens.

The following are the fundamental rights granted to eligible people under clauses (1) and (2) −

Right to be Informed of the Grounds of Arrest

According to Article 22(1), any arrested person who is being held in the custody of the authorities has the right to be informed of the reasons for his detention. Every individual who is kept in the custody of any authorized authority after being arrested has the right to be informed of the circumstances, allowing him to apply for bail or issue a writ of habeas corpus more easily.

This is significant because it allows the accused individual to prepare his defence in order to legally represent himself. The provision functions as an instruction to the arresting authority to communicate the reason for the arrest to the individual.

The court in the case of Tarapada De v. State of West Bengal found that the term "as soon as may be" employed in the article means as closely as is reasonable in the circumstances of a particular instance. If the cause for the arrest is not disclosed immediately, it must be justified.

Right to be Defended by a Lawyer of his Own Choice

Article 22(1) grants an accused individual the right to speak with or be defended by a legal practitioner or lawyer of his choosing in order to represent himself in court. Prior to Maneka Gandhi's case, the court was not required to give legal assistance unless a request was made. However, given the Supreme Court's decision in the Maneka Gandhi case and a number of instances that followed, it is obvious that the courts will be required to offer the help of a lawyer who has been detained in accordance with ordinary law as well.

In the case of Mohammed Amir Kasab aka Abu Mujahid v. State of Maharashtra, the detained person was a Pakistani who was provided the services of a lawyer upon his detention. However, having declined the same as well as the services of any Indian counsel, he sought the services of a lawyer from his native country. After being denied assistance from his native nation, he requested a counsellor, which he received instantly. As a result, his constitutional right was preserved in accordance with Article 22 (1).

Right to be Produced before a Magistrate

Article 22(2) strikes the correct balance between the interests of justice and the detained person by granting him the right to be brought before the nearest magistrate's court as a matter of legal obligation within twenty-four hours of his arrest.

To make it more effective and applicable in the social scene, exclude the time necessary for transportation from the point of arrest to the magistrate. As a result, as a basic right, every detained individual has the right to be produced before a magistrate within 24 hours after his arrest.

No Detention beyond 24 hours except by an Order of a Magistrate

Article 22(2) protects the arrested person from the brutality of the police by granting him the right not to be held in their custody beyond the set limit, either with prior authorization or with the authority of the court. If the detained individual must be held in custody beyond the time limit, he must be maintained in court custody rather than police custody.

Article 22 (2)'s reference to "arrest and detention" refers to someone who has been taken into custody according to an executive or extrajudicial order rather than someone who has been detained on a warrant for a crime, a quasi-crime, or another act that jeopardizes state security.

The Abducted Person (Recovery and Restoration) Act 1949, under which an abducted person could be arrested and delivered to the officer-in-charge of the nearest camp, was held valid in the case of State of Punjab v. Ajaib Singh and Others because the arrest did not constitute "arrest and detention" because the person was not accused of a criminal offence.

Preventive Detention Laws

Articles 22(4) to (7) describe the procedures that must be followed when a person is arrested and held under any preventive detention statute. In Indian law, preventative detention is not defined in any official sense, although it is defined in opposition to the term "punitive."

While the goal of punitive legislation is to punish someone who has already committed an offence, the goal of preventive detention is to intercept or prevent someone from doing anything that may be reasonably suspected of causing harm to society or threatening the government's security.

Though the idea of preventative detention legislation is deemed anti-democratic, it nevertheless has a place in the Indian constitution as contrasted to other countries such as the United States or the United Kingdom. Patanjali Shastri emphasized the importance of this clause in the case ofA.K. Gopalan v. State of Madras as a nefarious aspect to prevent anti-social and subversive individuals from abusing the freedom afforded by the constitution and endangering the democracy and integrity of the Indian republic.

Constitutional Safeguards against the Laws of Preventive Detention

Though the constitution has instilled preventive detention provisions contrary to general democratic conceptions, it has also been balanced in order to decrease the severity and arbitrary nature of these regulations. The constitution has offered protections by emphasizing the legislative powers granted to the legislature. Article 22 being included in the chapter on guaranteed rights is due in part to this. Article 22 (4) to (7) gives the following safeguards to a person arrested and held under the rules of preventive detention:

Review by the Advisory Board

Prior to the Constitution (44th Amendment) Act, 1978 - Article 22(4) (a) stated that no one could be detained for more than three months under the preventive detention law unless an advisory board comprised of a person qualified to be a High Court judge had given their opinion that the cause of the detention was justified before the term of three months had expired.

If the advisory board determines that the detention is unwarranted, the government is required to remove the order. In a similar case, the detaining authority has the ability to choose the length of imprisonment.

However, in the latter situation, detention cannot be unlimited and must be limited to the maximum duration stipulated by any law established by the parliament for that class of detainees under clause (7) (b).

Under Section 7(a), any statute that provides for detention for more than three months without the previous consent of the advisory board must indicate the class or classes of detainees to whom it applies and the circumstances surrounding such an application. The detention mechanism outlined in Section 4 is subject to the terms of clause 7, which also outlines the advisory board's investigation procedure.

Communication of the Grounds of the Detention to the Detenu

Article 22(5) grants the detenu two fundamental rights:

• The authority making the detention shall provide the grounds that led to the subjective satisfaction of the detaining authority's decision to detain that individual as quickly as possible.

• The authority shall provide the detainee with the earliest chance to represent himself by providing him with appropriate particulars to do so.

The court held in Kubic Darusz v. Union of India that simply explaining the grounds verbally without providing it in writing in a language understood by him, where the detainee does not know good English, does not serve the purpose of article 22(5), and thus it is important for the communication to be clear and easily understandable by the detainee to make it a valid communication.

Detenu’s Right to Representation

The lack of any constitutional clause guaranteeing the detainee's right to counsel prior to the order of custody makes it clear that the detainee's representation is considered after the order of detention is confirmed. The detainee must be provided with the basic facts, information, and all documents considered by the detaining authority in reaching the custody decision.

These should be delivered to the detainee as quickly as feasible in order to provide him with the earliest chance for representation and to keep the detaining authority from using arbitrary and capricious power.

Subjective Satisfaction of detaining Authority

The regulations governing preventative detention state unequivocally that the power of custody is to be used for the subjective pleasure of the detaining authority. Normally, courts do not intervene in detention authority judgments, whether the grounds are substantial or not. However, this does not mean that it is immune to legal examination.

The courts have justified the use of their judicial minds by stating that subjective satisfaction is required prior to the exercise of Executive power, and they can analyses whether the authority has arrived at the necessary satisfaction for the order of detention. This is done to guarantee that authority is not misused.

The court stated in the matter of A.D.M. Jabalpur v. S. Shukla that even if the detainee establishes a prima facie case that the detention was unlawful, the affidavit of the authority will be the answer and the investigation will be ended. The courts cannot order the production of the file or rule that the detainee's case is undebatable due to the non-disclosure of the grounds for arrest.

Conclusion

Legislators need to take notice of the extreme arbitrariness and corruption involved in the issuance and utilization of orders for preventative detention. Though the courts believe the necessity is in the constitution, it is past time to enact tighter and more stable rules to ensure the appropriate and efficient execution of these laws in a social setting. Article 22 can help, but we still have a long way to go. With the current social setup, where crimes behind bars have escalated due to the harsh treatment of those caught and kept in police custody, it is necessary to go beyond this article and implement more balanced and better checks.

Frequently Asked Questions

Q1. Which law provides protection against arrest and detention?

Ans. Article 22 in the Constitution of India, protects the rights of an arrested person.

Q2. What is protection against arbitrary arrest and detention under the Constitution?

Ans. No detention for more than 24 hours unless ordered by a magistrate Article 22(2) protects the detained person from the brutality of the police by granting him the right not to be held in their custody beyond the set limit, either with prior authorization or with the authority of the court.