Protection against arrest and detention in certain cases under Article 22

Protection against arrest and detention in certain cases under Article 22

THIS ARTICLE COVERS ‘DAILY CURRENT AFFAIRS’ AND THE TOPIC DETAILS OF ”Protection against arrest and detention in certain cases under Article 22”. THIS TOPIC IS RELEVANT IN THE “Political Science” SECTION OF THE UPSC CSE EXAM. 

Why in the News?  

The Supreme Court of India declared the arrest and subsequent remand of NewsClick founder and Editor-in-Chief Prabir Purkayastha by the Delhi Police as invalid and ordered his immediate release. 

A Bench of Justices B.R. Gavai and Sandeep Mehta said neither Mr Purkayastha nor his counsel was provided with the grounds of his arrest in writing. Mr Purkayastha, who was accused of using Chinese funding to promote “anti-national propaganda” through digital media, was arrested by the Delhi Police Special Cell on October 3, 2023. He was remanded in police custody the next day. His lawyer was informed of the grounds of arrest on October 5. 

The right to be informed about the grounds of arrest flows from Article 22(1) (an arrested person shall be informed of the grounds of arrest and allowed to consult a lawyer of his or her choice) of the Constitution. Any infringement of this fundamental right would vitiate the process of arrest and remand,” Justice Mehta, who authored the judgment, held. 

Quashing the arrest, the court, however, said its verdict was not a comment on the case’s merits against Mr. Purkayastha. Justice Mehta said, like arrests, the grounds of detention should also be communicated in writing to a detainee. Any lapse would violate Article 22(5) of the Constitution, which mandates that a person under detention should be communicated. The grounds of the detention order and allowed to make a representation against the detention at the earliest opportunity.

Mr Purkayastha was arrested by the Delhi Police Special Cell on October 3, 2023. The police ignored his request for a copy of the FIR and gave him a copy only after a Sessions Judge remanded him in police custody at 6 a.m. on October 4, 2023. The senior journalist’s lawyer, advocate Arshdeep Khurana, was informed about the grounds of arrest on October 5, 24 hours after his client was remanded in police custody.

About protection against arrest and detention in certain cases under Article 22 of the Indian Constitution: 

Article 22 of the Indian Constitution protects against arrest and detention in certain cases. This Article is part of the Fundamental Rights guaranteed to individuals and is crucial in safeguarding personal liberty. It is divided into two main parts: preventive detention and punitive detention. Key provisions under Article 22 of the Indian constitution are:

  • Article 22 (1) specifies that an individual taken into custody must promptly know the arrest reasons and can choose and consult a lawyer. Article 22(2) says that an individual arrested must be presented to a magistrate within 24 hours, excluding travel time, and cannot be held beyond this without a magistrate’s approval. Hence, statement 1 is correct.
  • Article 22(3) specifies that the provisions outlined in clauses (1) and (2) do not apply to (a) any individual currently classified as an enemy alien or (b) any individual who has been arrested or detained under any legislation that allows for preventive detention. 
  • Article 22 (4) states that preventive detention laws cannot allow the detention of someone beyond three months unless an Advisory Board, made up of current or former High Court judges or those eligible to be, affirms there’s enough reason for it before the three-month period ends. 
  • Article 22 (5) states that if any person is detained in pursuance of an order made under any law providing preventive detention, the authority must quickly inform them of the reasons for their detention and give them a chance to contest it.
  • Article 22(6) states that the authority doesn’t need to disclose facts deemed against public interest under clause (5). 
  • Article 22(7)(a) states, “Parliament has the authority to enact legislation specifying the situations and categories of instances in which an individual can be held in preventive detention for more than three months without the need to seek the viewpoint of an Advisory Board, as mandated by the conditions set out in sub-clause (a) of clause (4), before making a final determination.” 

Only Parliament has the exclusive authority to legislate preventive detention laws concerning defence, foreign affairs, or the security of India. Meanwhile, under the Concurrent List, the Parliament and the State Legislatures share the power to legislate preventive detention measures to preserve public order or ensure the provision of essential supplies or services to the community. 

The 44th Amendment Act of 1978 reduced the period of detention without the advice of an advisory board from three months to two months. However, this change has not been implemented yet, so the original detention period of three months is still in effect. 

In India, various legal frameworks, such as the National Security Act (NSA) from 1980, the Unlawful Activities (Prevention) Act (UAPA) established in 1967, and state-specific statutes like the Maintenance of Internal Security Act (MISA) and Public Safety Acts (PSA) in particular regions, allow for the preventive detention of individuals. These laws permit the detention of individuals for a set duration, typically not exceeding 12 months, without the need for formal charges or a trial. A designated official or authority carries out the issuance of a detention order, with an advisory board conducting regular reviews of the detention. 

The Preventive Detention Act of 1950 allows for holding an individual based on defence, foreign affairs, or state security concerns. Section 151 of the Criminal Procedure Code, 1973 (CrPC) allows for police to detain individuals preemptively based on the suspicion that they might engage in wrongful acts. 

A police officer has the authority to detain a person without needing a Magistrate’s order or a warrant if they receive information suggesting the person may commit a crime. This action is taken as a preventive measure based on suspicion. 

In the 1950 A K Gopalan v. State of Madras case, the Supreme Court strictly interpreted Articles 21 and 22. It declined to assess any procedural deficiencies in the law, maintaining that the constitution’s articles were independent. The court justified the petitioner’s detention under the ‘procedure established by law,’ disregarding the claims of rights violations under Articles 19 and 21, and adopted a limited view of ‘personal liberty’ and ‘law,’ ignoring natural justice principles.

In Maneka Gandhi v. Union of India, the judiciary significantly expanded the interpretation of the term “personal liberty,” understanding it broadly. The judgment clarified that Article 21 is not separate from Article 19; therefore, any legislation restricting personal freedom must meet both criteria. 

Supreme Court guidelines for Article 22:  

  1. An individual can only be detained under preventive detention legislation if there are concerns that the person threatens the broader community, impacting “public order.” Simply engaging in cheating or criminal breach of trust, which falls under ‘law and order’ issues, would not justify such detention.
  2. The government should avoid indiscriminately employing preventive detention to handle all “law and order” issues, which can be addressed through regular legal processes.
  3. In all such cases, the court must consider a crucial question to determine the action’s legality: Was the regular law of the land adequate to address the situation? If the answer is yes, then the detention order will be deemed unlawful.
  4. Preventive detention should be strictly confined to the parameters of Article 21, which mandates due process of law. It must also be interpreted in conjunction with Article 22, which protects against arbitrary arrest and detention, and the relevant legislation. 


Article 22 holds significance as it navigates the fine line between personal freedoms and state-enforced security measures. It offers essential protections to individuals from random arrests and detentions, simultaneously allowing the government the authority to detain persons preemptively for the sake of national security and maintaining public peace. This Article embodies the intricate equilibrium the Indian Constitution aims to achieve between the individual’s liberty and the state’s obligations to uphold public safety and order. 


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Prelims Practice Questions:

Q. Consider the following statements:

  1. Right to freedom under the Indian Constitution ensures that no person is arrested or detained without being informed in writing.
  2. Both Parliament and State Legislature have powers to enact laws regarding preventive detention. 

Which of the statements given above is/are correct?

A. Only 1

B. Only 2

C. Both 1 and 2

D. Neither 1 nor 2


Mains Practice Question:

Q. Discuss the exceptions to the protections provided under Article 22. How has the Supreme Court of India interpreted the provisions of Article 22 regarding human rights and personal liberty?

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