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Article 22 of Indian Constitution

Posted by Manoj Vats on January 23, 2015 | Comment

Article 22 is one of the groups of Articles in Part III (Fundamental Rights) of the Constitution of India, which have been collected together under the sub-heading Right to Freedom. The subject-matter of the Article is personal liberty. This Article proceeds to guarantee certain fundamental rights to every arrested person. These rights being guaranteed by the Constitution are of a higher status than rights which are merely conferred by the ordinary law and have no such constitutional guarantee.

Article 22 of the Constitution of India

In fact, Article 22 did not exist in the Draft Constitution. It was added towards the end of the deliberations of the Constituent Assembly. Because the Article 21 had been violently criticised by the public outside as Parliament was being given carte blanche to make and provide for the arrest of any person under any circumstances.

Meaning of Article 22

The procedural safeguards against arbitrary arrest and detention, provided in clause (1) and (2) of Article 22 are that no person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds for such arrest. No such persons shall be denied the right to consult, and to be defended by, a lawyer of his choice. And, every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24-hours of arrest. 

The above safeguards are not available to an enemy, alien or a person arrested or detained under a law providing for preventive detention. The Constitution, however, imposes certain safeguards against the abuse of power. 

Preventive Detention Law in Article 22 

The Article 22 assumes the possibility of law for preventive detention. If there is no such law, the Executive cannot, of its own responsibility, detain any person in custody. Any law relating to preventive detention must in order to be valid, satisfy the requirements of clauses (4) to (7) of this Article.

The Fundamental Rights, guaranteed by clauses (4) to (7) to persons detained under any law for prevention detention, relate to the maximum period of detention, the provision of an Advisory Board to consider and report on the sufficiency of the cause for detention, the right to be informed of the grounds of detention and the right to have the earliest opportunity of making a representation against the order of detention.

The power of preventive detention is thus hedged in by diverse procedural safeguards to minimise as much as possible the danger of its misuse. It is for this reason that this Article has been given a place in the chapter on Fundamental Rights.

Amendments to Article 22

The Preventive Detention Act, 1950 was, passed by the Indian Parliament but it was a temporary Act, originally passed for one year only. Several times since then the term of the Act was extended until it expired in 1969.

The revival of anarchist forces led Parliament to enact a new Act, named the Maintenance of Internal security act (MISA) in 1971, having provisions similar to those of the Preventive detention Act, 1950. In 1974, Parliament passed the Conservation of Foreign Exchange and Prevention of Smuggling activities Act (COFEPOSA), aimed at anti-social activities like smuggling, racketing in foreign exchange and the like. MISA was repealed in 1978 but COFEPOSA still remains.

The Janata Party Government sought to alleviate the rigours of the procedure for preventive detention, by effecting changes in Clause (4) and (7)  of Article 22 by enacting the Constitution 44th Amendment Act in 1978. Paradoxically, however, before any such notification could be issued, the Janata Government had its fall and Indira Gandhi returned to power in January, 1980. So, her government refused to issue such notifications. As a result, the original clauses relating to Preventive Detention in Art.22 subsist till today.