Article 22(1) and 22(2): The Rights of an Arrested Person

"Excluding the time necessary for the journey from the place of arrest to the court of the magistrate." Travelling time is excluded, and only the time necessary for the journey.

"And no such person shall be detained in custody beyond the said period without the authority of a magistrate." This is the operative prohibition. After twenty four hours plus travelling time, further custody requires a judicial order.

How the ordinary law gives them effect

The Bharatiya Nagarik Suraksha Sanhita 2023 carries the constitutional requirements into working procedure. Section 144 of the repealed Code is section 163 of the Sanhita, and the arrest provisions have been renumbered in the same way.

Section 47 requires every police officer or other person arresting any person without warrant to communicate forthwith to him full particulars of the offence for which he is arrested or other grounds for such arrest.

Section 57 requires a police officer making an arrest without warrant to take or send the person arrested before a Magistrate having jurisdiction, or before the officer in charge of a police station, without unnecessary delay and subject to the provisions as to bail.

Section 58 provides that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and that such period shall not, in the absence of a special order of a Magistrate under section 187, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court, whether having jurisdiction or not.

Section 58 therefore does two things the Constitution does not: it imposes a reasonableness limit within the twenty four hours, and it names the provision, section 187, under which a Magistrate may authorise further detention.

The consequence for a preventive detainee

Article 22(3)(b) provides that nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention.

So a detenu has, under article 22:

no constitutional right to be informed of the grounds of arrest under clause (1), though he has a different and later right to the grounds of detention under clause (5);

no constitutional right to consult and be defended by a legal practitioner of his choice;

and no right to be produced before any magistrate at all, at twenty four hours or ever.

That is the whole of what clause (3) does, and it is why [Article 22(3): Who Loses Those Rights] is the hinge of the article.

A worked example, run twice

The police in Thane take Nikhil into custody at 9 a.m. on Monday.

If he is arrested on suspicion of an offence. He must be told the full particulars of the offence forthwith under section 47. He may consult a lawyer of his choice. He must be produced before the nearest Magistrate by 9 a.m. on Tuesday, excluding only the time necessary for the journey, and cannot be held beyond that without the Magistrate's authority under section 187. Within the twenty four hours, section 58 requires that he not be held longer than is reasonable in the circumstances.

If a detention order under the National Security Act is served on him. None of that applies. He will be taken to a place of detention specified by the appropriate Government under section 5 of that Act. He will be given the grounds of detention under section 8, ordinarily within five days and in exceptional circumstances within fifteen. He will not be produced before a magistrate. He may make a representation to the Government. His case will go to an Advisory Board within three weeks under section 10, and section 11(4) provides that nothing in that section entitles him to appear by a legal practitioner.

The contrast between those two paragraphs is the single most useful thing a student can carry into an exam on this topic.

What it does NOT mean

Clause (1) is not a right to be given the evidence. It is a right to be informed of the grounds of the arrest.

Clause (2) does not give twenty four hours of lawful police custody as of right. Section 58 of the Sanhita requires that custody not exceed what is reasonable in the circumstances, and twenty four hours is the outer limit rather than an entitlement.

The right to a lawyer under clause (1) is not the same as legal aid. Legal aid at State expense comes from article 39A and article 21, and from the Legal Services Authorities Act 1987, on which see [Access to Courts in Practice: Legal Aid and Public Interest Litigation].

Clause (3) does not put a detenu outside Part III. It disapplies clauses (1) and (2) of article 22 and nothing else. Articles 14, 19, 21 and 32 continue to apply to him.

Quick revision

• Article 22(1): informed of the grounds of arrest as soon as may be; right to consult and be defended by a legal practitioner of his choice.
• Article 22(2): produced before the nearest magistrate within twenty four hours, excluding journey time; no custody beyond that without a magistrate's authority.
• BNSS s.47 full particulars forthwith; s.57 taken before a Magistrate without unnecessary delay; s.58 no longer than is reasonable and in any event not beyond twenty four hours excluding journey time, absent a special order under s.187.
• Article 22(3)(b) disapplies both clauses to a person detained under a preventive detention law.
• What a detenu gets instead: the grounds under clause (5) and section 8 of the NSA, a representation, and an Advisory Board, but no magistrate and no constitutional right to counsel.

Test yourself

1. From what moment is the twenty four hours computed, and what is excluded? From the arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate.

2. Which section of the Sanhita corresponds to article 22(1)'s requirement about grounds? Section 47, which requires full particulars of the offence or other grounds of arrest to be communicated forthwith.

3. Does a preventive detainee have to be produced before a magistrate? No. Article 22(3)(b) disapplies clause (2) to him.

4. Does section 58 of the Sanhita entitle the police to twenty four hours of custody? No. It forbids custody longer than is reasonable in all the circumstances, and fixes twenty four hours excluding journey time as the outer limit absent a Magistrate's special order under section 187.

5. Name the three things a detenu loses by clause (3). The right to be informed of the grounds of arrest under clause (1), the right to consult and be defended by a legal practitioner of his choice, and the right to be produced before a magistrate within twenty four hours.