Article 22 of Indian Constitution: Protection against Arrest and Detention

Clauses (1) to (3) in practice

• Grounds of arrest: the person must know why he is held, so he can seek bail and prepare a defence. In Pankaj Bansal v. Union of India (2023, PMLA) and Prabir Purkayastha v. State (NCT of Delhi) (15 May 2024, UAPA) the Supreme Court said the grounds must be given in writing; an arrest without this is invalid.
• Lawyer of choice: the right starts from arrest. Free legal aid for those who cannot pay comes from Article 39A and Article 21 (Hussainara Khatoon 1979, Khatri 1981).
• 24 hours: the clock runs from the arrest, not from the time the police record it. Travel time to the court is excluded. Further custody needs a magistrate's order.
• Enemy alien: a citizen of a country at war with India. A foreigner from a friendly country gets the full protection of clauses (1) and (2).

From the Constitution to the police station

• Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, in force from 1 July 2024, writes these rules into law: section 47 (tell the grounds of arrest and the right to bail), section 58 (no custody beyond 24 hours without a magistrate), section 38 (meet a lawyer during interrogation). They replace sections 50, 57 and 41D of the old CrPC.
• Joginder Kumar v. State of UP (1994): arrest is not automatic; the police must justify the need, and a friend or relative must be told.
• D.K. Basu v. State of West Bengal (1997): guidelines against custodial violence: police wear name tags, an arrest memo signed by a witness and the arrested person, a relative informed, medical check-ups, and a police control room note of the arrest.
• Arnesh Kumar v. State of Bihar (2014): for offences punishable up to seven years, no routine arrest; police follow a checklist and first issue a notice to appear.

• What it is: detention of a person without trial, to stop him from doing something harmful in future. It rests on the subjective satisfaction of the detaining authority, not on proof of a crime.
• 22(4): the 3-month limit. No PD law can allow detention beyond three months unless an Advisory Board reports, before the three months end, that there is sufficient cause. The Board is made of persons who are, have been, or are qualified to be High Court judges.
• 22(5): grounds and representation. The detainee must get the grounds "as soon as may be" and the earliest opportunity to object. Courts insist the grounds are in a language he understands and with the documents relied on.
• 22(6): facts the authority considers against the public interest need not be disclosed. The grounds themselves cannot be withheld.
• 22(7): Parliament may say when detention can go beyond three months without a Board, fix the maximum period, and lay down the Board's procedure. Under the NSA the maximum is 12 months.

The Advisory Board: a quasi-judicial check

• A quasi-judicial body is not a court, but it decides a question in a court-like way: it looks at the material and hears the person. The Advisory Board is one such body.
• If the Board finds no sufficient cause, the Government must release the detainee. If it finds cause, the Government may continue the detention up to the legal maximum.
• The detainee has no right to a lawyer before the Board under most PD laws, though he may take a friend's help; the Supreme Court upheld this in A.K. Roy (1981).
• Under the NSA 1980: grounds within 5 days (10 days in exceptional cases), reference to the Board within 3 weeks, Board report within 7 weeks of detention, maximum detention 12 months.
• Courts can still test every detention through habeas corpus under Articles 32 and 226.

• Punitive detention looks back at a crime already done. Preventive detention looks forward at a harm that may happen.
• Because there is no trial, the Supreme Court calls preventive detention an exception to Article 21 that must be strictly construed (Rekha v. State of Tamil Nadu, 2011). If ordinary criminal law is enough, PD should not be used.
• Article 22 can be suspended during a National Emergency under Article 359; Articles 20 and 21 cannot (44th Amendment, 1978).

• Union List, entry 9: preventive detention for reasons connected with defence, foreign affairs or the security of India. Only Parliament.
• Concurrent List, entry 3: preventive detention for reasons connected with the security of a State, maintenance of public order, or maintenance of supplies and services essential to the community. Both Parliament and State Legislatures.
• So both the Centre and the States can make PD laws, but only Parliament can use clause (7) to allow detention beyond three months without an Advisory Board.

Law and order, public order, security of the State

• In Ram Manohar Lohia v. State of Bihar (1966) the Court drew three concentric circles: law and order is the widest, public order is inside it, and security of the State is the smallest. An act that only disturbs law and order (one fight, one cheating case) does not justify PD for public order.
• This test is used again and again to quash detention orders, as in Banka Sneha Sheela (2021).

• A.K. Gopalan v. State of Madras (1950): the first big PD case, under the Preventive Detention Act 1950. The Court read Article 22 as a complete code and "procedure established by law" narrowly. This view was later given up (R.C. Cooper 1970, Maneka Gandhi 1978).
• Ram Manohar Lohia v. State of Bihar (1966): law and order vs public order vs security of the State.
• ADM Jabalpur v. Shivkant Shukla (1976): during the Emergency the Court (4:1, Justice H.R. Khanna dissenting) held that detainees under MISA could not move courts for habeas corpus. The nine-judge bench in K.S. Puttaswamy (2017) declared it wrong and overruled it.
• A.K. Roy v. Union of India (1981): upheld the National Security Act; refused to force the Government to notify the 44th Amendment's PD changes.
• Joginder Kumar (1994), D.K. Basu (1997), Arnesh Kumar (2014): limits on arrest and custodial safeguards.
• Rekha v. State of Tamil Nadu (2011) and Banka Sneha Sheela (2021): PD is an exception; not a shortcut where ordinary law works.
• Pankaj Bansal (2023) and Prabir Purkayastha (2024): written grounds of arrest under Article 22(1).

• Myth: "A person in preventive detention loses the right to vote." Fact: section 62(5) of the Representation of the People Act 1951 bars voting by persons in prison or in police custody, but its proviso exempts preventive detainees. They vote by postal ballot. Convicts serving a sentence and undertrials in jail cannot vote.
• Myth: "UAPA and POTA are preventive detention laws." Fact: they are anti-terror laws under which people are arrested and tried. They have stricter bail rules, but they are not PD laws as such.

Points often made in UPSC answers

• Arguments given in support: India faced partition violence, insurgency, terrorism, smuggling and hoarding; some threats cannot wait for a crime to happen; the framers built in limits (Advisory Board, grounds, representation); courts review every order.
• Arguments given against: few democracies keep PD in their Constitution in peacetime; it rests on suspicion, not proof; orders are often quashed by courts, which shows misuse; long detention without trial affects liberty and family life; the 44th Amendment safeguards remain unnotified.
• Way forward (exam view): notify the 44th Amendment changes, give detainees legal help before the Board, publish data on PD orders and quashing rates, and use PD only where ordinary law truly fails, as the Supreme Court has said in Rekha and Banka Sneha Sheela.