Article 22: Arrest, Detention and the Preventive Detention Exception

Clause (5) requires the detaining authority, as soon as may be, to communicate the grounds of the order and to afford the earliest opportunity of making a representation against it.

Clause (6) permits the authority to withhold facts which it considers to be against the public interest to disclose, which is the clause that hollows out clause (5).

Clause (7) empowers Parliament to prescribe the circumstances and classes of cases in which a person may be detained beyond three months without an Advisory Board's opinion, and the maximum period.

The amendment that was never brought into force

This is a specific and checkable point that most answers miss.

Section 3 of the Constitution (Forty-fourth Amendment) Act 1978 substituted a new clause (4). The new clause would reduce the period from three months to two months, would require the Advisory Board to be constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court, and would require the Chairman to be a serving Judge of that High Court with the other members serving or retired Judges of any High Court.

That substitution has never been notified. The bare Act prints it with the words date yet to be notified.

So the operative clause (4) is still the original: three months, and an Advisory Board whose members need only be qualified to be appointed as High Court judges.

The point is worth making in any answer on preventive detention or on the Forty-fourth Amendment, because it shows that the constitutional response to the Emergency was completed in some respects and left incomplete in this one.

Why article 22 is on a human rights paper

It is the Constitution's own compromise between liberty and executive power, and it is the compromise Module III has to work with.

It is the constitutional authority for the preventive detention statutes, and therefore for a large part of the detention litigation that reaches the writ courts.

And it sets the baseline that the Supreme Court later supplemented. Because clause (5) can be defeated by clause (6), and because the ordinary protections do not apply at all to preventive detention, the Court built additional safeguards through article 21, which [Custodial Violence, and the Guidelines on Arrest] records.

The international correspondence

Article 9 of the Universal Declaration: no one shall be subjected to arbitrary arrest, detention or exile.

Article 9 of the Civil and Political Covenant is far more detailed: prompt information of the reasons for arrest and of any charge; prompt production before a judge or other officer authorised by law to exercise judicial power; trial within a reasonable time or release; the right to take proceedings before a court to decide the lawfulness of the detention; and an enforceable right to compensation for unlawful arrest or detention.

Two divergences worth naming. The Covenant's article 9 makes no exception for preventive detention comparable to article 22(3)(b), and India entered a declaration on article 9 to the effect that it would be applied in a manner consistent with the constitutional provisions on preventive detention. And the Covenant's enforceable right to compensation has no counterpart in article 22, which is why [Compensation in Public Law] had to be built by the courts.

Worked example

A question on the rights of an arrested or detained person.

Give clauses (1) and (2) in full, noting that travelling time is excluded and that both apply to every person.

Give clause (3) and both exclusions, stressing that enemy alien is narrow.

Give the preventive detention scheme, clauses (4) to (7), and identify clause (6) as the one that weakens clause (5).

Give the unnotified Forty-fourth Amendment substitution, with what it would have changed.

Close on the international comparison, naming India's declaration on article 9 of the Covenant and the absent compensation right.

What it does NOT mean

It does not mean a foreigner loses article 22. Only an enemy alien does, and that means a national of a State at war with India.

It does not mean preventive detention is unconstitutional. The Constitution provides for it in terms.

And it does not mean the Forty-fourth Amendment reduced the period to two months. The substitution exists in the amending Act and has never been brought into force.

Quick revision

• 22(1): informed as soon as may be of the grounds; right to consult and be defended by a legal practitioner of his choice. 22(2): production before the nearest magistrate within twenty-four hours, excluding journey time.
• Both apply to every person, including a foreigner.
• 22(3) excludes (a) an enemy alien, meaning a national of a State at war with India, and (b) a person detained under a preventive detention law.
• 22(4): no detention beyond three months without an Advisory Board of persons qualified to be High Court judges reporting sufficient cause.
• 22(5): grounds communicated as soon as may be, and the earliest opportunity of making a representation. 22(6): facts may be withheld in the public interest, which hollows out 22(5). 22(7): Parliament may prescribe detention beyond three months without a Board, and the maximum period.
• The Forty-fourth Amendment's substituted clause (4) has NEVER been notified. It would have reduced three months to two, required the Board to be constituted on the Chief Justice's recommendations, and required a serving Judge as Chairman. The original clause is still the law.
• Correspondence: article 9 of the Declaration; article 9 of the Covenant, which has no preventive detention exception and carries an enforceable right to compensation. India entered a declaration on article 9.

Test yourself

1. What protections does article 22 give, and from whom does it withdraw them? Clause (1) provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for the arrest, nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice. Clause (2) provides that every person arrested and detained shall be produced before the nearest magistrate within twenty-four hours of the arrest, excluding the time necessary for the journey from the place of arrest to the court, and that no such person shall be detained beyond that period without a magistrate's authority. Both clauses apply to every person and not merely to citizens, so a foreigner arrested in India holds them, and the exclusion of travelling time from the twenty-four hours is a real qualification that is often misstated.

Clause (3) withdraws both protections from two categories. The first is any person who for the time being is an enemy alien, and the category is narrow: it means a national of a State at war with India, not any foreigner and not a person the executive regards as hostile. The second is any person arrested or detained under a law providing for preventive detention, and this is the significant exclusion, because it means that the ordinary protections attending a criminal arrest do not apply at all to a preventive detainee, who is governed instead by the weaker scheme in clauses (4) to (7).

2. Set out the preventive detention scheme, and identify its weak point. Clause (4) provides that no preventive detention law shall authorise detention for longer than three months unless an Advisory Board consisting of persons who are, have been, or are qualified to be appointed as Judges of a High Court has reported before the expiry of those three months that there is in its opinion sufficient cause for the detention, or unless the person is detained under a law made by Parliament under clause (7). Clause (5) requires the detaining authority, as soon as may be, to communicate to the detainee the grounds on which the order has been made and to afford him the earliest opportunity of making a representation against it. Clause (7) empowers Parliament to prescribe the circumstances and the classes of cases in which a person may be detained beyond three months without an Advisory Board's opinion, and to prescribe the maximum period of detention.

The weak point is clause (6), which provides that nothing in clause (5) requires the authority to disclose facts which it considers to be against the public interest to disclose. Clause (5) gives the detainee the grounds and the right to represent against them; clause (6) allows the authority to withhold the facts on which those grounds rest, in its own judgment of the public interest. A representation against grounds whose factual basis is withheld is of limited use, and that is why the courts have had to supplement the article through article 21, requiring that the grounds be communicated in a language the detainee understands, that the representation be considered with reasonable expedition, and that unexplained delay vitiates the detention.

3. What did the Forty-fourth Amendment do to article 22, and why does the answer surprise people? Section 3 of the Constitution (Forty-fourth Amendment) Act 1978 substituted a new clause (4) which would have made three changes. It would have reduced the period of detention permitted without an Advisory Board's report from three months to two. It would have required the Advisory Board to be constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court, rather than by the detaining government. And it would have required the Chairman of the Board to be a serving Judge of that High Court, with the other members serving or retired Judges of any High Court, in place of the existing test of persons merely qualified to be appointed as High Court judges.

The surprise is that none of it is in force. The substitution was enacted in 1978 and its commencement was left to notification, and it has never been notified: the bare Act prints the substituted clause with the words date yet to be notified beside it. The operative article 22(4) is therefore still the original, with three months and a Board whose members need only be qualified for appointment. The point is worth making in any answer on preventive detention or on the constitutional response to the Emergency, because it shows that the response was completed in some respects, notably the removal of articles 20 and 21 from the article 359 power, and left deliberately incomplete in this one, nearly five decades later.