Explain the Fundamental Right-Right to Freedom(Article-22).

Explain the Fundamental Right-Right to Freedom(Article-22).

Protection Against Arrest and Detention.

May 24, 2019.

Article 22 grants protection to persons who are arrested or detained. Detention is of two types, namely, punitive and preventive. Punitive detention is to punish a person for an offence committed by him after trial and conviction in a court. Preventive detention, on the other hand, means detention of a person without trial and conviction by a court. Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the near future. Thus, preventive detention is only a precautionary measure and based on suspicion.

Article 22 has two parts- the first part deals with the cases of ordinary law and the second part deals with the cases of preventive detention law. (a) The first part of Article 22 confers the following rights on a person who is arrested or detained under an ordinary law: (i) Right to be informed on the ground of arrest. (ii) Right to consult and be defended by a legal practitioner. (iii) Right to be produced before a magistrate within 24 hours, excluding the journey time. (iv) Right to be released after 24 hours unless the magistrate authorizes further detention.

These safeguards are not available to an alien or a person arrested or detained under a preventive detention law. The Supreme Court also ruled that the arrest and detention in the first part of Article 22 do not cover arrest under the orders of a court, civil arrest, arrest on failure to pay income tax, and deportation of an alien. They apply only to an act of criminal or quasi-criminal nature or some activity prejudicial or public-interest.

(b) The second part of Article 22 grants protection to persons who are arrested or detained under a preventive detention law. This protection is available to both citizens as well as aliens and includes the following: (i) The detention of a person cannot exceed three months unless an advisory board reports sufficient cause for extended detention. The board is to consist of judges of a high court. (ii) The grounds of detention should be communicated to the detenu. However, the facts considered to be against the public interest need not be disclosed. (iii) The detenu should be afforded an opportunity to make a representation against the detention order.

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