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Rights of the arrested person in India

Written by: Anushka Patil


Introduction


The rights of arrested persons in India are mentioned in article 22(2) in the constitution of India. Article 22 is one of the fundamental rights, which safeguards the rights of an individual who has been convicted of a crime and detained. This law applies to both the citizens as well as non­-citizens of India. The purpose of this right is to prevent arbitrary arrests and detentions.


Article 22 (1): The person who has been arrested should be informed about the grounds for his arrest. Meaning the person should be made aware of the reason/s for which he is detained. Furthermore, He cannot be denied the right to consult an advocate as the detainee has a right to be defended by a layer of his choice.


Article 22 (2): The detainee in custody should be produced before the nearest magistrate within 24 hours of arrest, including the time required to travel from the place of detention to the court of the magistrate. No person should be kept in custody for more than 24 hours without the approval of the magistrate.


Article 22 (3): This clause of the article states that neither clause 1 nor clause 2 mentioned above are applicable if the person for time being is considered an enemy alien, or to any person who is detained under any law providing for preventive detention.


Article 22 (4): The person detained under preventive detention cannot be kept in custody for more than 3 months. [Preventive detention means that an arrest is made to prevent a crime from happening.] The suspect can be detained for up to a period of up to 3 months and is not required to be produced in front of the magistrate. The detention period can also be extended if sufficient cause for extending the detention is provided. Although only the advisory board which consists of persons who are or have been, or are qualified to be appointed as high court judges are entitled to do so.

Article 22 (5): Any arrest which is made in pursuance of the order under any law provided for preventive detention; the authorities must as soon as possible disclose the grounds of arrest and should be provided with a lawyer of his choice to make representation against the order.


Article 22 (6): If the authority making the preventive arrest finds it in the public interest to not disclose the grounds of arrest, then noting in clause 5 should be applied.


Article 22 (7): The parliament has the power to prescribe the circumstances under which a person may be detained for longer than 3 months without the permission of the advisory board. The parliament also has the authority to change the procedures/ inquiry order for the advisory board.


Case laws relevant to article 22


1] In the case of A.K. Gopalan v State of Madras, 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 can be detained for 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 alternatives to each other, which would mean that either: enact a law providing a more extended period of detention with the provision of the advisory board or making law without having the condition of the advisory board.


2] The case of Shibban Lal Saksena v State of UP, deals with clause (5) of article 22 of the Indian constitution. For his detention, the petitioner was given two reasons, later one of the reasons was revoked by the authority. The petitioner argued that he should not be detained since now that one of the grounds was revoked which should lead to his release. In contrast, the state argued that the one reason was also plenty for detention. However, the supreme court held that the detention was illegal and gave the judgment in favour of the petitioner that the one ground was insufficient to uphold the detention and when the ground is not relevant to the objective of the act, then the order will not sustain.


3] In the case of Jayanarayan v State of West Bengal, four principles regarding the representation of a detained person were put forward:

a) the concerned authority must provide the accused person with a lawyer or a representative of his choice as soon as possible.

b) the authority must provide the detainee with a representative of his choice and this decision should not be made depending on the advisory board's actions.

c) the necessary actions should be taken without delay but the citizen's safety should also be kept in mind at the same time.

d) the government is required to give its opinion regarding the representation before transferring it to the advisory board.


4] In The case of State of Punjab v Ajaib Singh, 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). That 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 an accusation or apprehension of commitment of a quasi-criminal or criminal nature or any other offense against the State.


References

· The Constitution of India, 1950

· The Criminal Procedure Code, 1973

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