Protection against Arrest and Detention under Article 22 of Indian Constitution


The Constitution of India holds the highest authority as the governing law of the country. The  document lays down the structure, procedure, powers, fundamental rights, fundamental duties  and freedoms of its citizens. Among these rights, Article 22 holds significant importance as it stipulates two basic rights- 

  • Rights in case of arrest under punitive detention, wherein a person is punished for an  offence committed by him after trial and conviction in the court. 
  • Safeguards and rights against preventive detention, in preventive detention there is no  trial or conviction in the court. The purpose is not to punish, but to prevent the person  from committing the crime.  

This article’s meaning has always been open to different understandings and can be misused,  which makes it hard for the article to be completely stable within the constitution. 

There are seven clauses under Article 22 

  1. If someone is arrested, they must be told why they are being arrested. They also have  the right to talk to a lawyer for help and defense. 
  2. If a person is arrested and kept in custody, they must be taken to a nearby judge within  24 hours. They cannot be kept in custody for more than 24 hours without the judge’s  permission. 
  3. The rules mentioned in points 1 and 2 don’t apply to two types of people: those who  are considered enemies of the country, and those who are arrested or held under a law  for preventive detention. 
  4. A law for preventive detention cannot keep a person detained for more than three  months, unless:
    1. A group of people, who are or have been judges, called an advisory board, says  there is a good reason for the detention before the three-month period ends. Nevertheless, this does not permit detention beyond the maximum duration  established by any legislation enacted by the parliament. 
    2. The person is detained according to a law made by the parliament. 
  5. When someone is detained under a law for preventive detention, the authority that  ordered the detention must tell them the reasons for the order as soon as possible. The  person must also be given a chance to speak against the order. 
  6. The authority making the order mentioned in point 5 doesn’t have to disclose  information that they believe should not be made public. 
  7. The parliament can make laws about:
    1. When and in which cases a person can be detained for more than three months  without asking an advisory board for an opinion.
    2. The maximum time a person can be detained in specific cases under a law for  preventive detention. 
    3. The process that the advisory board should follow when conducting an inquiry  under point 4(a). 


  1. Article 22 ensures that there are rules in place to protect people from being arrested or  detained by the government without a fair process. 
  2. This right is accessible to every person, regardless of their citizenship status. 

There are 2 types of detention- Punitive detention and Preventive detention  

  • Punitive detention refers to the act of punishing someone for a crime they have been  tried and convicted for in a court. 
  • In contrast, preventive detention entails holding an individual without a trial or verdict  from a court. Its purpose is not to punish the person for previous offenses, but rather  to prevent them from engaging in future wrongdoing. 
  • Both the central government and state governments have the authority to enact laws  regarding preventive detention. 
  • The initial section focuses on the context of regular laws. It grants the following  privileges to an individual who is arrested or held under such laws –
    1. The right to receive information about the reasons for one’s arrest. 
    2. The right to seek advice and be represented by a legal professional. c. The right to be presented before a magistrate within 24 hours, excluding travel  time. 
    3. The right to be released after 24 hours, unless the magistrate approves further  detention. 

DK Basu v. State of West Bengal 

The Supreme Court of India has formulated a comprehensive set of eleven guidelines and conditions pertaining to the process of arrests and detentions. These guidelines work in harmony with the existing constitutional and legal safeguards, reinforcing the overall protection offered to individuals. They operate as an additional safeguard in conjunction with the provisions stated in Article 22 of the Constitution. 

In addition to the guidelines established by the Supreme Court, a significant step was taken to enhance transparency and protect the rights of the arrested person. This was achieved through the introduction of Section 50A in the Criminal Procedure Code (Cr.P.C.). As per this section, it is now a legal obligation for the police to promptly inform the friends, relatives, or any other designated individuals about the arrest. They must also disclose the specific location where the arrested person is being held.

These measures not only contribute to the fairness and justice of the legal system but also ensure that the fundamental rights and liberties of individuals are upheld during the process of arrests and detentions. 

The first right states that the person who has been arrested or detained needs to be informed of the grounds of such arrest or detention thereby ensuring that the arrest/ detention is not arbitrary. In the case of Joginder Kumar v. State of U.P. it was held that a detained person should know the cause of his detention and is entitled to let any third person know the location of his detention.

The second right enables the arrested person/detenu to get a chance to be represented by a legal practitioner of their choice. This right is available right from the moment a person has been arrested. This enables the arrested person to get a fair trial. The Supreme Court in Hussainara Khatoon v. State Of Bihar has held that the right to a speedy trial is a constitutional right.


A prominent figure, Dr. B.R. Ambedkar who drafted the constitution of India, made an observation which was regarding the need for preventive detention in certain situations. 

He said “…in the present circumstances of the country, it may be necessary for the executive to detain a person who is tempering either with the public order or with the defence services  of the country. In such case, I don’t think that the exigency of the liberty of an individual shall be above the interest of the state.” 

Given their nature as a necessary evil, preventive detention laws should be employed by the state with utmost care and discretion. While they serve a purpose in maintaining public safety and protecting national security, it is crucial for the state to exercise prudence and adherence  to fundamental principles in their application.

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