UNIVERSITY SCHOOL OF LAW AND

LEGAL STUDIES, GGSIPU,

DWARKA

CONSTITUTIONAL LAW ASSIGNMENT

rights of arrested person under art 22(1)

and art 22(2)

SUBMITTED TO: DR. RAKESH KUMAR

SUBMITTED BY: AMBIKA TANWAR
ENROLLMENT NO. 044 BALLB (HONS),
3rd SEMESTER

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 ABSTRACT

The Constitution of India guarantees the rights of arrested persons under Article 22(1) and 22(2),
ensuring procedural fairness and safeguarding individual liberty. Article 22(1) provides the right
to legal representation and the right to be informed of the grounds of arrest, while Article 22(2)
mandates the production of the arrested individual before a magistrate within 24 hours to prevent
arbitrary detention. This paper examines the constitutional framework, legislative provisions, and
judicial interpretations surrounding these rights. It also highlights challenges in implementation,
such as lack of awareness, custodial violence, and inadequate legal aid. Comparative insights
from international practices underscore the need for reforms to enhance compliance. The paper
concludes with actionable recommendations to strengthen procedural safeguards and uphold the
rule of law in India.

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 INTRODUCTION

The right to personal liberty is a cornerstone of democratic governance and the rule of law,
enshrined as a fundamental right in the Constitution of India. Articles 221(1) and 22(2) stand as
vital protections against arbitrary state action, ensuring that the arrest and detention of
individuals are subject to procedural safeguards. While Article 22(1) guarantees the right to legal
counsel and the right to be informed of the grounds of arrest, Article 22(2) mandates prompt
production before a magistrate, preventing unlawful detention.

These provisions were framed to strike a balance between the state's interest in maintaining law
and order and the individual's right to freedom. However, the gap between constitutional ideals
and their practical enforcement has often resulted in violations of these rights, such as custodial
violence, delays in accessing legal aid, and misuse of arrest powers.The apex court in the case
State of Haryana v Dinesh kumar2 cited the meaning of arrest given in Halsbury’s laws of
England “The word arrest when used in its ordinary and natural sense means the apprehension
Or restraint or the deprivation of one's personal liberty.

When used in legal sense in the procedure connected with criminal offense an arrest consists in
the taking into custody of another person under authority empowered by law for the purpose of
holding or detaining him to answer a criminal charge or of preventing the commission of a
criminal offense the essential element to constitute an arrest in the above sense are that there
must be an intent to arrest under the authority accompanied by a seizure or detention of the
person in the manner known to law which is so understood by the person arrested” The basic
principle behind these protections is that the government has massive resources at its disposal for
the prosecution of individuals, and so individuals are entitled to some protection from the
government's abuse of those powers.

During any investigation, an accused has certain rights; examination or prosecution of an

offense for which he is charged, and should be shielded from unreasonable or unlawful
detention. Police have broad powers to detain any individual under Cognizable Crime without
going before a judge, and the Court will be careful and see that such powers are not misused by
being used lightly for personal benefit.

There can be no arrest on merely suspicion or facts. Even a private citizen cannot obey and
detain another citizen on someone else's argument, however unjustifiable it may be. Arrests
come with many rights enshrined by the constitution and the criminal procedure court which
began at the time of arrest till the person is detained by the police. These rights are basic in
nature and are provided to safeguard the individual arrested against the atrocities and misuse of
power by the police inflicted on the accused.

In a free society like ours, law is quite careful toward one’s “personal liberty” and doesn’t permit
the detention of any person without legal sanction. Even article 21 of our constitution provides:
“No person shall be deprived of his life or personal liberty except according to procedure
established by law”. The procedure contemplated by this article must be ‘right, just and fair’ and
not arbitrary, fanciful or oppressive. The arrest should not only be legal but justified. Also a
1 Constitution of india
2 State of Haryana v Dinesh kumar 2008 3 S.C.C. 222

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person in custody of the police, an under-trial or a convicted individual does not lose his human
and fundamental rights by virtue of incarceration. The intention of the legislature in laying down
these principles has been that hundreds of guilty persons may get out free but even one innocent
should not be punished. Indian Constitution itself provides some basic rights and safeguards to
the accused persons which are to be followed by the authorities during the process of criminal
administration of justice. Aim of this study is to provide careful consideration on the rights and
privileges of the person captured under the criminal code of procedure and the constitution.

This paper explores the constitutional, legislative, and judicial dimensions of Articles 22(1) and
22(2), delving into their significance, challenges, and comparative insights from international
legal systems. By addressing the systemic shortcomings in their implementation, this study
underscores the urgent need for reforms to ensure that these rights are not just theoretical
promises but tangible safeguards for every individual.

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 CONSTITUTIONAL FRAMEWORK

Overview of Article 22 as a Whole

Article 22 of the Indian Constitution is a comprehensive provision that provides safeguards for
individuals in cases of preventive detention and punitive detention. It is divided into two parts:

1. Clauses (1) and (2): Protect individuals who are arrested under ordinary circumstances,
ensuring procedural safeguards against arbitrary detention.
2. Clauses (3) to (7): Deal with preventive detention, permitting detention without trial but
subject to specific limitations.

Article 22 thus embodies a dual objective—protecting personal liberty and empowering the state
to act in extraordinary situations for public safety.

Focus on Article 22(2): Right to Be Presented Before a Magistrate Within 24 Hours

Article 22(2) acts as a safeguard against prolonged or unlawful detention. It mandates that:

1. Prompt Production Before a Magistrate: The arrested individual must be presented

before a magistrate within 24 hours of their arrest, excluding travel time.
2. Prohibition of Detention Beyond 24 Hours: Detention exceeding 24 hours requires
explicit judicial approval.

These provisions prevent arbitrary arrests and provide judicial oversight over the detention
process.

● Judicial Interpretation: In DK Basu v. State of West Bengal3, the Supreme Court held
that compliance with Article 22(2) is critical to prevent custodial violence and uphold
individual dignity.

Interconnection with Article 21 (Right to Life and Liberty)

Articles 22(1) and 22(2) are closely intertwined with Article 21, which guarantees the right to
life and personal liberty. Together, they form the bedrock of procedural fairness:

● Article 21 ensures substantive protection by safeguarding life and liberty, while Articles
22(1) and 22(2) provide procedural safeguards to prevent arbitrary actions by the state.
● The Supreme Court in Maneka Gandhi v. Union of India established that "procedure
established by law" under Article 21 must be fair, just, and reasonable, reinforcing the
procedural protections under Article 22.

CONSTITUTIONAL RIGHTS OF ARRESTED PERSON

3 DK Basu v. State of West Bengal AIR 1997 SUPREME COURT 3017

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An accused person is granted two different types of rights: those that are intended to offset his
disadvantage, such as the right to remain silent and the right not to be tortured. e.g., the “nulla
poena sine lege4” the presumption of innocent, among other concepts. These particular rights
took on a distinct identity in the criminal justice system, where we encounter inherent human
rights as well as rights created for the purposes of natural and fair justice. "The right not to be
subjected to torture" might be the most appropriate example of a human right. Similar to the right
to life, it is believed that every person has the right to have this recognition, regardless of their
circumstances. The assumption of being innocent, the entitlement to an impartial jury trial,
natural justice processes, nulla peona sine lege, and the principle of double jeopardy are
examples of historical legal systems that have articulated the concepts of fair and natural justice.,
are more prevalent when it comes to procedural rights. These rights are recognized by specific
legislation in most world constitutions. Such laws' fundamental tenet is that no person should be
treated a certain way.

However, the whole idea of the right is that respect for them is deemed valuable in and of itself,
and once they are recognized in a state's Constitution, it is implied that the right cannot be
disassociated only because doing so would benefit the majority of the population by reducing
crime. Articles 20, 21, and 22 of the Indian Constitution recognize an accused person's human
rights. By including them as basic rights, the intention is to guarantee that specific fundamental
rights such as the rights to life, liberty, and the freedom of speech are seen as unalienable under
all circumstances and that the country's fluctuating legislative majority does not have unfettered
power in interfering with these fundamental rights.

4 The principle against ex-post facto laws.

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 RIGHT TO SILENCE

The 'right to silence' arose from the principles of common law. It means that normally courts or
tribunals should not conclude that the person is guilty of any behavior merely because he has not
answered questions that the police or the court have asked. The Justice Malimath Committee in
its report was of the opinion that in societies where anyone can be arbitrarily held guilty of any
charge the right to silence is very much needed. Any statement or confession made to a police
officer in a court of law is not admissible, as provided by the law of evidence. Court in the case
of Nandini Sathpathy v. P.L.Dani5 Where it was held that no one could physically obtain answers
from the accused and that the accused was entitled to remain silent during the investigation

RIGHT TO INFORMATION REGARDING ARREST GROUNDS

The primary requirement of lawful arrest is the notification of reasons of arrest along with the
charges issued against the Arrestee. Section 50 (Criminal Procedure Code 1973) provides that a
person arrested without a warrant should be informed of the full details of the offense and of the
grounds for his arrest by a police officer or other person making the arrest, and where the offence
is bailable of his right to be released on bail [right to bail sec.50(2)]. when a person is arrested
with a warrant the police officer executing the warrant of arrest will notify the substance to the
arrestee [sec 75] further [under sec 55] when a subordinate officer is deputed by a senior officer
to arrest a person he will notify the person to be arrested the content of the written order given by
the senior officer stating the offense or cause for which the arrest is made.Section 50 being
mandatory, confers a valuable right and non-compliance with it amounts to disregard of
procedure established by law. The timely information helps the accused person in many ways, as
it offers an opportunity to explain any mistake or confusion in the executing authority's mind and
to move the competent court for bail in suitable circumstances and for a writ of habeas corpus to
plan his defense6 . It is not necessary to furnish full details of an offence but adequate particulars
put be given to the arrestee to enable him to understand the grounds of his arrest. The detention
becomes unlawful when the grounds given are not proper and sufficient7 . Article 22 (1) of the
Constitution provides that a person arrested for an offence under ordinary law be informed as
soon as may be the grounds of arrest. The grounds of arrest should be communicated to the
arrested person in the language understood by him; otherwise it would not amount to sufficient
compliance with constitutional requirements. (Johari 2004)8

RIGHT TO BE PRODUCED BEFORE A MAGISTRATE

5 Nandini Satpathy v P.L. Dani and Anr. A.I.R. 1978 SC 1025

6 Govind Prasad v state 1975 C.R.L.J 1249 CAL
7 Madhu Limaye vs The State Of Maharashtra1969 A.I.R. 1014 1969 SCR (3) 154
8Johari JC. The constitution of India A Politico -Legal Study. Sterling Publishers Pvt. Ltd, 2004

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The arrested person should be promptly produced before a judge or magistrate this right has been
created to prevent the arrest from becoming means of compelling the arrestee to give information
and to enable the judicial authority independent of the police to determine the question of bail or
discharge. Section 56 of The Criminal Procedure Code stipulates that in the case of an arrest
without warrant a police officer is expected without unnecessary delay to produce the arrested
person before a before a magistrate having jurisdiction. section 57 states that no police officer
can detain in custody a person arrested without warrant for a longer period than under all the
circumstances of the case is reasonable and such period will not (in the absence of a special order
of magistrate under section 167) exceed 24 hours . Thus the person arrested should be produced
before the magistrate within 24 hours of this arrest .The period of 24 hours does not include the
time necessary for the journey from the place of arrest to the magistrates court. This right is not
only a formality but it is substantial protection given to the accused so that if there is no case
against him he can be released on bail or released immediately. It is important that the magistrate
should try to enforce this condition and where it is found defied with come down heavily upon
the police69.

Article 22(2) of the Indian constitution states that In addition to the furnishing of the grounds of
arrest the arrested person must be produced before the magistrate within 24 hours of his arrest.
The period can be extended beyond 24 hours only under in the case of judicial custody Article 22
of the constitution is to give a shield against the acts of non judicial authorities or of the acts of
Executive .Thus under these provisions of the constitution the accused has the right to be
produced before a magistrate within the time of 24 hours thus securing a speedy trial. In the case
of C.B.I v. Anupam j. Kulkarni10 the Supreme Court laid down the extensive guidelines that
should be followed while making arrest of an accused person when under some circumstances
investigation cannot be done within 14 hours. The court also held that production before
magistrate within 24 hours is mandatory and from these the magistrate has the sole authority of
extending the period of detention which will in not be more than 15 days. After this period ends
the next step is judicial custody.

RIGHT TO CONSULT WITH A LAWYER OR LEGAL AID

9 Khatri v state of Bihar 1981 C.R.L.J. 470

10 CBI .V/s Anupam J Kulkarni (1992) 3. S.C.C 141

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According to section 303 of the code the right of every arrested person to consult a legal
practitioner of his choice. The right begins from the moment of arrest11 which is the pretrail
phase. The arrestee also has the right to consult with his/her friends and relatives if they wish so 12
. The consultation with the lawyer meant to protect him is to be the presence a police officer on
duty but not within the range of hearing of the officer13. According to Article 22 (1) of the
Constitution any person arrested cant be denied the basic right to consult or to be defended in the
court of law by a legal practitioners this is mandatory for a fair and just trail to happen. The
reason behind recognition of this right is simple that the accused may not have the competency
and skills to fight his case. In Hussainara Khatoon v. Home Secretary14, Bihar, the Supreme
Court has held that it is the constitutional right of every accused person who is unable to engage
a lawyer and secure legal services on account of reasons such as poverty or indigence to have
free legal services provided to him by the State and the state is under constitutional duty to
provide a lawyer to such person if the needs of justice is so require. If free legal services are not
provided the trial may be vitiated as contravening Article 21. It was also held (per Bhagwati J)
that the state cannot be permitted to deny the constitutional right of speedy trial to the accused on
the ground that the State has no adequate financial resources to incur the necessary expenditure
needed for improving the administrative and judicial apparatus with a view to improving speedy
trial.

SPECIAL PROTECTION TO WOMEN

Women shall not be arrested without the presence of a lady constable and further no female be
arrested under sunset and Sheela Barse versus state of Maharashtra the apex code took note of
the custodial violence in women lodge in police lockup and directed that there should be lockups
in good localities exclusively for female suspects further the interrogation of females aspects
should be carried only in presence of female police officers15 Section 53(2) of the criminal code
established the statutory principle that a female medical practitioner should embody medical
review. Supreme court in State of Maharashtra v Christian community16 welfare council held that
when arresting a female accused all efforts should be made to keep a lady constable present but
in the situations where the arresting officers are reasonably satisfied that any lady constable is
not-available or it’s not possible at the moment to secure her presence at the arrest sight and a
delay can take place in investigation then the arresting officer should record these reasons and
carry on with the arrest as usually made in case of arresting a man.

RIGHTS AVAILABLE TO PERSON UNDER PREVENTIVE DETENTION

11 Moti Bai v state A.I.R. 1954 Raj 241

12 Francis Coralie Mullin v Administrator Union Territory of Delhi 1981 A.I.R. 746
13Joginder Kumar v State Of U.P 1994 A.I.R. 1349
14 Hussainara Khatoon v Home Secretary, State of Bihar 1980 S.C.C. 98
15 Sheela Barse & Ors v Union Of India & Ors J.T.1986 136
16 State of Maharashtra ..Vs Christian Community Welfare Council of India 2003 8 SCC 546

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Right or safeguards available to person detained under preventive detention law [clauses 4 to 7
article 22 of the constitution] the expression preventive detention means to retain a person
without trial. The purpose of preventive detention is to detain a person as a precautionary
measure to prevent him or her from doing something on the apprehension that he or she is likely
to do something wrong unless detained Laws governing preventive detention are follows

a) No detention beyond three months unless such detention is approved by the advisory board

b) The detaining authority must communicate as soon as maybe to the detenue, the grounds for
his detention.

c) the detenue must be given the earliest opportunity of making a representation against the order
of detention

d) No detention beyond maximum period prescribed under the law made by parliament under
clause 7(b)

CONSEQUENCES OF NON-COMPLIANCE WITH ARREST

PROVISIONS

A trial will not be void because the arrest provisions have not been fully followed. If the court
has jurisdiction over an offense and illegality will not overthrow the courts jurisdiction to try that
offence17 it will also not affect that the accused person is guilty or not guilty of the offence which
he is charged however illegality or irregularity of arrest would be quite material if such person is
prosecuted on a charge of resistance to or to escape lawful custody. If a public servant who has
authority to make an arrest knowing the exercises that authority in contravention of law by
making an illegal arrest he can be prosecuted under section 220 of IPC further if any person
illegally arrest another person is punishable under section 342 IPC for wrongful confinement as
illegal arrest is similar to false imprisonment and the one who makes such arrest exposes himself
to a suit for damages in civil court. The provisions regarding arrest cannot be by passed by
alleging that there was no arrest but only informal retention by police.

SAFEGUARD AGAINST CUSTODIAL TORTURE

17 Prabhu v emperor A.I.R. 1944 Mad 369

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Torture is the systematic deliberate infliction of acute pain in any form by one person to another.
Experts in Supreme Court observed custodial violence (torture, rape or death) in police custody
or lock up is a matter of deep concern it infringes article 21 of the constitution as well as the
basic human rights. In 2008 (c.r.p.c amendment) a new section been inserted to take care of
custodial torture to some extent. Section 55A ( health and safety of arrested person) stipulates
that it is the duty of person having the custody of an to take reasonable care of health and safety
of the accused thus making it obligatory on the part of police having custody of the accused to
take care of the health and safety of those arrested.

SIGNIFICANCE OF PROCEDURAL SAFEGUARDS

Protection Against Arbitrary Detention and Torture

Procedural safeguards under Articles 22(1) and 22(2) are critical in protecting individuals from
arbitrary state actions, wrongful arrests, and custodial torture. By mandating the disclosure of
arrest grounds and requiring judicial scrutiny within 24 hours, these provisions prevent the
misuse of power by law enforcement.

Ensuring Fair Trial Rights and Access to Justice

The right to consult and be defended by a legal practitioner is indispensable for ensuring a fair
trial. Without legal representation, individuals—especially the underprivileged—face systemic
disadvantages. These safeguards uphold the principles of natural justice, ensuring equality before
the law and the right to a fair hearing.

CHALLENGES IN IMPLEMENTATION

1. Lack of Awareness Among the Public About These Rights

Many individuals remain unaware of their rights under Articles 22(1) and 22(2),
particularly marginalized communities. This lack of knowledge perpetuates systemic
violations.
2. Gaps in Enforcement by Law Enforcement Agencies
Despite constitutional mandates, instances of delayed arrests, failure to inform detainees
of their rights, and non-compliance with procedural requirements persist due to systemic
inefficiencies and lack of accountability.
3. Issues of Custodial Violence Despite Constitutional Protections
Cases of custodial torture and deaths reveal a disturbing gap between constitutional
safeguards and ground realities. Police brutality often goes unchecked, eroding public
trust in law enforcement.
4. Challenges in Providing Timely Legal Aid to Indigent Detainees
Access to legal aid is limited, particularly for economically disadvantaged individuals.

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 Overburdened legal aid systems, coupled with lack of awareness, hinder timely and
effective representation.

COMPARATIVE ANALYSIS

United States: Miranda Rights

The Miranda v. Arizona (1966) judgment established that arrested individuals must be informed
of their rights, including the right to remain silent and the right to counsel. This ensures that
individuals are aware of their protections during arrest and interrogation.

United Kingdom: Police and Criminal Evidence Act, 1984 (PACE)

PACE provides robust safeguards, such as requiring police to inform detainees of their rights,
maintain custody records, and ensure legal representation. Independent custody officers oversee
compliance, reducing the scope for abuse.

Lessons for India from International Practices

● Institutionalizing mechanisms similar to Miranda rights to ensure arrested individuals are

informed of their procedural safeguards.
● Creating independent oversight bodies, akin to PACE, to monitor police conduct during
detention.
● Strengthening accountability measures to address custodial violence and procedural
lapses.

RECOMMENDATIONS

1. Strengthening Awareness Programs for Citizens and Law Enforcement

● Conduct public awareness campaigns to educate citizens about their rights under Articles
22(1) and 22(2).
● Train law enforcement officials on constitutional and legal obligations to ensure
compliance.
2. Enhancing the Effectiveness of Legal Aid Schemes
● Allocate more resources to strengthen legal aid institutions.
● Partner with non-governmental organizations to ensure timely legal assistance, especially
for marginalized groups.
3. Establishing Independent Oversight Mechanisms
● Create independent police accountability bodies to oversee arrest and detention
processes.
● Mandate regular audits of police stations to ensure adherence to procedural safeguards.

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 4. Judicial Activism in Upholding Procedural Safeguards
● Encourage the judiciary to take suo moto cognizance of custodial violence and procedural
violations.
● Advocate for stricter penalties for law enforcement officers who fail to comply with
constitutional mandates.

RIGHTS OF ARRESTED AND DETAINED PERSONS: INTERNATIONAL

CONVENTIONS

universal declaration of human rights (udhr)

In its Universal Declaration of Human Rights, the United Nations General Assembly recognized
the right to personal liberty as a basic human right. The UN Declaration of Universal Human
Rights (UDHR) was drafted in 1948 by the UN General Assembly. It enumerates the
fundamental rights of humanity, including the rights to security, liberty, and life. It acts as a
founding document for other human rights accords.

international covenant on civil and political rights (iccpr)

India is subject to strict rules governing the treatment of detainees because it is a signatory to the
International Covenant on Civil and Political Rights. For example, Article 9 outlines the
safeguards against unwarranted arrest and detention and addresses the rights to freedom and
personal security.

convention against torture and other cruel, inhuman or degrading treatment or

punishment (cat)

The Convention on the Exclusion of Torture and Other Cruel, Inhuman, or Degrading Treatment
or Punishment (CAT) is a treaty that India is signatory to. It emphasizes the obligations of states
to halt and investigate instances of torture.

DATA COLLECTION & INTERPRETATION

For the conduct of study and access the rights of arrested and detained persons, data collected

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from about 71 respondents by circulating google form containing the following questions:

Question about the what is your age? 71 respondents responded out of which 45.1 % stated 18-
24, 28.2% stated 25-34, 11.3% sated 35-44, 9.9% stated 45-54, rest opted for 55+.

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For the question regarding gender, 71 respondents responded. Out of which 47.9 % are female
and 52.1 % are male members of the society.

The question was asked about their occupation, about 71 respondents participated and responded.
Out of which 14.1 % are human right advocate, 14.1 % are legal professional, 8.5

% are legal enforcement and other 63.4 belongs to other profession.

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About the question experience about the how familiar are you with the rights of arrested and
detained persons? 71 respondents responded and 25.4 % are very familiar, 33.8% are somewhat
familiar, 26.8% are not very familiar and 14.1% are not at all familiar.

For the question about checking the where did you learn about the rights of arrested and detained
persons? 70 responded for the question. 14.3 % were from Law Enforcement Training , 25.7%
from Legal Education , 8.6% Human Rights Training , 27.1% From Media

, 24.3% from other.

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For the question have you ever been arrested? Out of total 71 responded 45.1 % found to
experience arrest in their life and 54.9% had any experience about the arrest.

From the respondents 53.1 % who were arrested found that they were arrested without
explaining the reason for arrest. 26.6 % were informed about the ground of arrest at the time of
their arrest.

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For the questions about have you ever been detained? 69 respondents responded and 46.4 %
found with experience of detention in their life and 53.6% with no such experience.

For the question about if yes, were your rights respected during detention? 64 respondents
responded for the question. Out of which only 31.3 % persons rights were respected during the
detention and 56.3 % right were not respected.

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For the question do you believe that the rights of arrested and detained persons are important? 71
respondents responded. Out of which 31 % stated Strongly Agree, 35.2% stated Agree, 25.4%
stated Neutral remaining Opted for Disagree and Strongly Disagree.

For the question do you believe that law enforcement officers always respect the rights of
arrested and detained persons? 71 respondents responded. Out of which 14.1 % stated Strongly
Agree, 22.5% stated Agree, 29.6% stated Neutral, 21.1% Opted for Disagree and 12.7% Strongly
Disagree on believing on law enforcement officers for respecting the such rights.

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For the question when an individual is arrested, they are. 69 respondents responded. Out of
which 14.5 % stated Strongly Deprived of their liberty, 17.4% stated Granted access to legal
representation, 13% stated Subject to a trail, 55.1% Opted for All of the above.

For the question when arresting an individual, law enforcement officers are required to. 65
respondents responded. Out of which 15.4 % stated Inform them of the reasons for their arrest,
16.9% stated Read them their Rights, 13.8% stated all them to contact an law attorney, 53.8%
Opted for All of the above.

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For the question violations of the rights of arrested and detained persons can be addressed
through agency. 67 respondents responded. Out of which 16.4 % stated Internal Investigations
within Law enforcement agencies, 17.9% stated Judicial Review , 11.9% stated Civil Law suits,
53.7% Opted for All of the above.

For the question protecting the rights of arrested and detained persons is essential for.69
respondents responded. Out of which 10.1 % stated Ensuring Fare and Impartial Justice, 20.3%
stated Preventing Abuse of Power by Law Enforcement Officers, 59.4% Opted for All of the
above.

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For the question during detention, an individual has the right to.68 respondents responded. Out
of which 20.6 % stated Be treated with dignity and respect, 16.2% stated BE Provided with
adequate food, water and shelter,14.7% stated Access Medical Attention, 48.5% Opted for All of
the above.

DISCUSSION & FINDING

This discussion focuses on the findings of an empirical study conducted in Delhi regarding the
data collected on the rights of arrested and detained persons. Such information is crucial for
evaluating the effectiveness of legal safeguards and identifying areas where improvements are
needed. The study revealed significant gaps in data collection regarding the rights of arrested and
detained persons. This includes incomplete records, missing information, and inconsistencies
across different agencies. Individuals often face difficulties accessing information about their
rights during the arrest and detention process. This lack of awareness hinders their ability to
exercise their legal rights. The study identified instances where procedural safeguards were not
followed, such as delays in presenting individuals before a magistrate and denial of legal
representation. It has also been found that marginalized groups, such as religious minorities and
low-income individuals, were disproportionately affected by violations of their rights during
arrest and detention.

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SIGNIFICANT JUDGMENTS

In A.K. Gopalan v State of Madras18 it was noted by the minority that Article 22 of the
Constitution is not a complete code for protection against preventive detention. In clause (7)(a)
of Article 22, the majority interpreted “and” as “or” and said that it was sufficient for the
Parliament, if it either stated the circumstances or it prescribed the classes of cases for which the
individual will get detained longer than three months without referring to the Advisory Board.
So, from the perspective of the majority it was ruled that clause (4) and clause (7) of Article 22
were two independent powers and alternative of each other, which would mean as – option one
being that enact a law providing with a longer period of detention with the provision of Advisory
Board or option two being making law without having provision of the Advisory Board.

The case of State of Punjab v Ajaib Singh19 the Apex Court held that the provision of section 4
under the Abducted Persons (Recovery and Restoration) Act, 1949 did not come under the scope
of “arrest and detention” in Article 22 (1) and (2). This is because there was no accusation
against the abducted person being taken into custody and getting delivered to the nearest camp
by the police officer. The conditions for applying Article 22 (1) are that the arrested person will
have this right when they have been accused of or is suspected to commit a crime and have been
arrested under the warrant otherwise than given by the Court. The second requirement is that the
arrested person should be taken into custody because of accusation or apprehension of
commitment of a quasi-criminal or criminal nature or any other offence against the State.

The judgment of Shibban Lal Saksena v State of UP,20 deals with clause (5) of Article 22 of the
Indian Constitution. For his detention, the petitioner was given two reasons, later the authority
revoked one reason. The petitioner’s contention was that he should not be detained since now
that one ground was revoked means he should be released. Whereas the State argued that the one
reason was also enough for detention. However, the Supreme Court held that the detention was
illegal and gave the rational for same that the one ground was insufficient to uphold the detention
and when ground is not relevant to the objective of the Act, then the order will not sustain.

The Court in the case of Jayanarayan v State of West Bengal21 pronounced four principles with
respect to representation of the detained person;
1) the concerned authority must provide the detinue to get himself represented and make it as
soon as possible,
2) the authority’s consideration of allowing the detained person of representation is not to be
dependent on the Advisory Board’s actions and deliberation of the same, 3) the consideration
should not be delayed while not forgetting its citizens’ safety, 4) the Government should give its
opinion and judgment regarding the representation before transferring it to the Advisory Board.

18 A.K. Gopalan v State of Madras AIR 1950 SC 27.

19 AIR 1953 SC 10
20 AIR 1954 SC 179.
21 AIR 1970 SC 675.

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In State of West Bengal v Ashok Dey,22the legislation – West Bengal Preventive Detention Act’s
constitutionality was challenged. It was held by the Apex Court that the subject of preventive
detention came under the Concurrent List and as such the State Legislature could pass laws on
this matter; however, it was subject to the limitations provided under Article 22 of the
Constitution. Clause (4) provides for a limitation no laws can be enacted exceeding three months
without confirming with the Advisory Board and clause provides exception for the limitation,
being that the Parliament can provide for laws which prescribe exceeded period of limitation
without the opinion of the Advisory Board. The only time the State Legislature’s powers will be
curbed is when the Parliament provides for a maximum period under clause 7(b). Nowhere in
Article 22 is the State Legislature’s power curtailed to extend the period of detention for more
than three months, where it can get the confirmation of the Advisory Board as under clause (4).

However, later in Sambhu Nath Sarkar v State of West Bengal,23 the Supreme Court rejected the
majority holding in A.K. Gopalan case. The Court herein observed that if the powers are
independent of each other than the safeguards the Constitution makers laid down would be left
redundant. This is because then the Parliament can easily pass laws without the intervention of
an Advisory board. Additionally, if clause (4)(b) is looked at then it is realized that it is supposed
to be there to harmonize both the clauses.

In another case of Fagu Shaw v State of West Bengal,24 the Court answered the issue whether the
Parliament was bound to provide for a maximum period of detention while making preventive
detention laws. In this case, the persons had been detained under the Maintenance of Internal
Security Act, 1971. The judgement was a 3:2 where the majority ruled that Section 13 of this Act
provided for maximum period of detention in continuance of state affairs and this was enough, as
per Article 22 (7)(b) and stated that “maximum period” might be directed as in years, months or
days or with regards to some event or continuation of some state of affairs.

In Francis Coralie Mullin v UT of Delhi,25the Court stated that a detinue has the right to consult
lawyer of its choice including for release from preventive detention. However, the Court in A.K.
Roy v Union of India26 never confirmed or rejected this holding. Instead, the Supreme Court held
that when the Government or the detaining authority represents itself with legal aid or counsel,
the detinue must also be given the same opportunity. Furthermore, the Court also stated that the
detinue is also entitled to be assisted by a friend who is not a legal practitioner in the proceedings
before the Advisory Board. However, the Board has no obligation to convey this entitlement to
the detained person if it never asks for such aid or assistance.

In Joginder Kumar v State of Uttar Pradesh,27 the Supreme Court laid down guidelines for arrest
of a person. The rights of an arrested persons are embodied in Articles 21 and 22 (1) of the
Indian Constitution and that they must be safeguarded. To ensure the same, the Court stated that,
22 AIR 1972 SC 1660.
23 AIR 1973 SC 1425
24 AIR 1974 SC 613
25 AIR 1981 SC 746, 751.
26 AIR 1982 SC 978.
27 (1994) 4 SCC 260.

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firstly, if an arrested person, held in custody, requests for a relative or friend or anyone who
interest in the welfare of the arrested person, to be told that where he has been detained.
Secondly, the arrested person must told be about the above-mentioned right by the police officer
and lastly, there has to be an entry made in the diary naming the person who was informed. The
duty of the Magistrate is to make sure that these requirements have to be followed by the police
officers. The Court pointed out that the guidelines are not exhaustive though.

Article 22 of the Constitution was discussed in D.K. Basu v State of West Bengal28and reiterated
the importance of the rights given to arrested person. It further observed that often the power of
arresting someone and consequently detaining them, is misused a lot and therefore, laid a
comprehensive list of directions during arrest and detention to be followed by the concerned
authorities and in case of torture against the arrestee would be entitled to compensation.

Post Maneka Gandhi judgment, the position now is that Article 21 is the provision from which
the Article 22 also silently lays its legislations. In the matters of preventive detention laws, not
only Article 22 has to be conformed to but also Article 21. Article 22 of the Constitution may
prima facie be seen as curtailment to the right of life as provided in Article 21. However, in
actuality it is protection to those arrested and detained and provides as an extension to the right
to life and personal liberty, with limitations under clauses (3) and (4). There are several statutes
which provide for preventive detention on the grounds such as when someone does something
that is in prejudice against the nation’s security, or when it is for public safety, and so on.

28 AIR 1997 SC 610.

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CONCLUSION

The constitution states that the rights of accused are fundamental rights. Fundamental rights are
considered to be basic and should be provided to all despite of them being incarcerated. These
rights are well stipulates and elucidated on the paper but when it comes to the ground the reality
seems to be extremely altered than what is written in the constitution. The police deployed to
protect the society is often the one that destroys our faith in the system. Even those accused do
not cease to be the citizens of our country and are still a part of the society that the police is
deployed to protect. It is also clear that the police also use their power to undermine the people
caught and use their fear to coerce cash. There are constant accounts of custodial abuse that
Convince the deprivation of the captured individuals fundamental rights has turned out to be
common these days. It is police responsibility to protect the rights of society.It is still the duty of
the police to secure the privileges of the captured person. There is an urgent need to make
reforms in the Criminal Justice System such that the state can understand that its primary
responsibility is not to prosecute but to socialize and improve the wrongdoer and, above all, it
should be clearly recognized that socialization is not synonymous with incarceration, as it
requires prevention, education, treatment and rehabilitation in the sense of social security.
Furthermore, in the light of the regulations mentioned, a police officer must ensure that
handcuffs are not inappropriately used, that the accused is not inappropriately threatened, that the
detained person is made aware of the reasons for his detention, that he is notified of his right to
bail and, of course, that he is brought before a Magistrate within 24 hours of his detention.

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