- INTRODUCTION
What is Article 22 of the Indian Constitution about?
What is the scope of Article 22?
How was the scope of Article 22 before, and how was it expanded later?
This blog examines the meaning behind Article 22, to whom Article 22 is applicable and up to what extent it is applicable, expansion of the scope of Article 22 and its implications.
- ARTICLE 22
- Article 22: It protects the rights of people who are arrested or detained
Under this Article there are two types of detentions: –
- Punitive Detention:
Is to punish a person for an offence committed by him after trial and conviction in court.
- Preventive Detention:
It is the detention of a person without any trial and conviction. Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the future.
- Article 22 (1) & (2) deals with Punitive Detention and 22 (4 to 7) deals with Preventive Detention.
- Article 22(3): Exception to clauses (1) & (2). Article 22(1) & 22(2) prevails preventive detention.
- Article 22(1): Provides two safeguards in the form of rights to a person who is arrested / detained
- Right to be informed of grounds of arrest.
- Right to consult and be defended by a legal practitioner of his choice.
- Article 22(2): People who are arrested/ detained must be produced before the nearest magistrate within 24 hours of arrest / detention excluding the time taken for the journey from the place of arrest to the court. A person who is arrested or detained must not be detained beyond 24hours without the authority of a magistrate. The detention can be extended only by the order of Magistrate.
- Article 22(3): Exceptions to clause (1) & (2)
Nothing in clauses (1) & (2) will apply to two types of people: –
- Enemy Alien
- A Person who is arrested or detained under preventive detention laws.
- Violation of Article 22 (4 to 7), is considered as violation of fundamental rights.
- To hear preventive detention cases an Advisory Board will be formed and the members of board must be qualified to be appointed as Judges of High Court, are judges of High Court.
- Article 22 (4): The detention of a person under any detention law must not be longer period more than 3 months unless: –
The members of the advisory board before the expiration of the period of three months have reported that in their opinion, it has sufficient cause for such detention. The detention of any person must not be beyond the maximum period mentioned by any law made by Parliament under sub-clause (b) of Article 22(7).
- Article 22(5): When a person is detained under any detention law, the authority who is detaining must inform as soon as possible to the detainee on which grounds he has been detained and also the detainee has a right to make a representation against his detention.
- Article 22(6): Exception to clause (5), which states that the authority who is detaining does not need to disclose grounds of detention to the detainee in case the grounds are against the public interest.
- Article 22(7): Parliament has the power to: –
- Prescribe the circumstances under which a person may be detained without the permission of the advisory board.
- Decide the maximum period of detention under such laws and the procedure to be followed by the advisory board in an inquiry order.
- ANALYSIS OF THE SCOPE OF ARTICLE 22 THROUGH CASE LAWS
- A.K. Gopalan vs. State of Madras
- Facts of the Case:
- The appellant in this case A.K. Gopalan was a leader of an Indian communist party. He was detained under the Preventive Detention Act, 1950.
- He stated that he was imprisoned in jail for 4 years from 1947 without any trial. He complained that the principles of natural justice was not followed. As there is no fair hearing.
- Later, the appellant filed a writ of Habeas Corpus under Article 32 of the Indian Constitution by challenging the legality of the order made under the Preventive Detention Act, 1950. He also stated that his fundamental rights under Article 19 and 21 are being violated, and he was not informed about the grounds of his arrest which has violated his fundamental right under Article 22 of the Indian Constitution.
- Issues of the Case:
- Whether the detention made under the Preventive Detention Act, section 3(1) has violated the fundamental rights provided under Article 14, Article 19 and Article 21 of the Indian Constitution?
- Whether the Preventive Detention Act, 1950 provisions are accordance with Article 22 of the Indian Constitution?
- Judgement:
The Supreme Court in this case dismissed the writ petition of the petitioner and held that the Preventive Detention Act, 1950 has not violated and in conflict with Article 19 of the Indian Constitution. The court further held that there is no link between Article 19 and Article 21 and cannot be read together. Also held that there is no violation of principles of natural justice in this case.
In this case the Supreme Court has given narrow meaning to the rights under Article 19, Article 21, and Article 22.
- Maneka Gandhi vs. Union of India
- Facts of the Case:
- In this case the petitioner Maneka Gandhi’s Passport was confiscated. She asked the reason behind the confiscation of her passport but the Ministry of External Affairs declined to inform any reasons as it is against the interest of public.
- Afterwards the petitioner had files a writ petition under Article 32 of the Indian Constitution before the Supreme Court by stating that the seizure of her passport was violating of her fundamental rights provided under Article 14, Article 19 and Article 21.
- Issues of the Case:
- Is there any link or connection between the rights guaranteed under Article 14, Article 19, and Article 21?
- Whether the government by confiscating the passport of the petitioner without providing her any reasons for doing so and detained her within the country is violative of Article 22?
- Judgement:
The Court in this case has overruled the decision taken in A.K. Gopalan vs. Union of India Case and stated that there is a connection between Article 14, Article19, Article 21 and introduced the concept of the golden triangle. And it was stated that every law must pass the golden triangle test (Articles 14, 19, and 21) for just, fair and reasonability. In this case the scope of Articles 19 and 21 has been expanded. To correct its mistake in A.K. Gopalan case in which the court stated that Article 19 and Article 21 are separate and must not be read together. But in this case, it was stated that Articles 14, 19, and 21 are dependent on each other and cannot be separated.
- Joginder Kumar vs. State of U. P
In this case the Supreme Court has stated the misuse of arrest powers and highlighted the importance of protecting individual rights during the process of arrest. It has observed that even policer officer has legal authority to arrest it doesn’t mean that he can misuse it and arrest any one with out any justification. Wrongful detention will lead to severe damage to individuals’ dignity and reputation. An individual cannot be arrested merely on general allegation on them. There must be a proper check and inquiry after investigation if the allegations came true then only that particular individual can be arrested.
- D.K. Basu vs. State of West Bengal
It is a landmark case pertaining to Article 22. In this case the Supreme Court held that the prisoner’s fundamental rights under Article 21 must not be taken away. Their enjoyment of rights can only be restricted if it permitted by law. The Supreme Court in case has laid down 11 guidelines pertaining to the arrest and detention. And violation of these guidelines will lead to severe action.
- CONCLUSION
Article 22 plays a major role for the protection of Individuals from wrongful detention and protects the fundamental rights of arrestee or detainee. Here we can see how the scope of Article 22 has been expanded through various interpretation of the court from A.K. Gopalan vs. Union of India to D.K. Basu vs. State of West Bengal. How the rights of arrested / detained were recognised and protected. How the golden triangle concept was introduced and how every law must be pass the golden triangle test for fairness.
Author: G.V.L. Prashasti 5th Year B.A.LL.B (HONS) Student of GITAM School of Law
