Protection against illegal arrest, detention and custodial death

Protection against illegal arrest and detention

Article 22 of Indian Constitution broadly deals with the rights of a person who has been arrested or detained. The first two clauses deals with the rights of a person who has been arrested for a crime he has already committed. Other clauses are related to the rights and the procedure for the arrest and detention of person under preventive detention. Article 22 makes the minimum procedural requirements which must be included in any law enacted by legislature in accordance of which a person is deprived of his personal liberty and thus provides for the protection against illegal arrest and detention.

Clause 1 of Article 22 of Indian Constitution states that a person who has been arrested under normal circumstances (not under preventive detention), has the right to know the charges for which he has been arrested and can be detained further and he can’t be denied off an attorney or a lawyer’s service to represent him in court or to guide him and defend him in the court of law. The concerned authority, like the police or any other government authority, is compelled to tell him this information as soon as possible.

Clause 2 of Article 22 of Indian Constitution states that any person who has been arrested by an authority, must be presented before a magistrate within 24 hours of the arrest. This period of 24 hours doesn’t include the time taken to travel to the court of the magistrate. The person cannot be detained or held in custody for more than twenty four hours. After that, it is with the authority or permission of the magistrate that an agency or government body can extend the period of the detention.

Thus Clauses (1) and (2) conclusively provides for three very valuable rights to detenus (other than those detained under the law of Preventive Detention) which are-

1. Right of being informed, as soon as may be, of the grounds of arrest;

2. Right to consult and be defended by a legal practitioner of his choice;

3. Production before the nearest magistrate within 24 hours of such arrest.

Clause (3) of Article 22 however expressly take away the safeguards of clauses (1) and (2) of Article 22 in respect of a person arrested or detained under a law providing for Preventive Detention and thus the exceptions mentioned are explained as-

(a)   This states that the rights mentioned in the first two clauses are not valid for a person who is an “enemy alien”. Not an extraterrestrial being, just any person who is a citizen of an enemy country. It’s perfectly justified as in times of war, when enemy soldiers or spies are arrested, we won’t go around giving them the same rights that we give to our citizens. Like in Indo Pak war, countless Pakistani soldiers were captured. If we gave them all the same rights, we would have flooded our judicial system and moreover, we won’t be at peace with ourselves.

(b) This sub-clause states that the rights mentioned in the first two clauses are not applicable to people who have been arrested or detained on the grounds of preventive detention.

Preventive detention means detention of a person without trial and conviction by a court, but merely on suspicion in the mind of an executive authority. Preventive detention is fundamentally different from imprisonment after trial and conviction in a criminal court. In conviction, an accused is sought to be punished for a past act. The offence has to be proved in the court beyond reasonable doubt. In preventive detention a person is detained without trial in the subjective satisfaction of the executive. Preventive detention is thus preventive, not punitive, in theory. Article 21 which guarantees the fundamental right to “life and personal liberty” requires some procedure established by law to deprive a person of his life and personal liberty.

However, the procedure must not only be provided by a valid law, but it must also be just, fair and reasonable. Article 22 embodies procedural safeguards against arrest or detention which are available in the following two cases-

(a) when the arrest or detention is made under the ordinary law relating to the commission of offences,

(b) where the detention is made under a law providing for preventive detention.

Most countries like the United Kingdom or the United States of America have rendered this as unlawful. In the United States of America, the 6th Amendment act guarantees their citizens “the right to a speedy and public trial”. Arrested people cannot be held in custody for longer periods of time without being given a trial. However, convicted people can be detained indefinitely after being considered as dangerous offenders. If we talk about India, before independence, the British government used the same concept to suppress any nationalist movements that might originate. Countless innocent people were put in jail without having done anything wrong. First such instance was in the year 1818 when the government had the right to detain any person, simply on the basis of suspicion.

The first act for preventive detention post-independence was passed in 1950 which was fruitlessly challenged by Gopalan as the Madras high court deemed it constitutionally valid.  This act finally expired in 1969, after having been extended 7 times. After that, more such acts were introduced such as MISA, COFEPOSA and TADA. The TADA act was considered the most inhumane as even confessions made under torture by the police were considered admissible in the court as evidence. There were rumors of widespread misuse. After the series of attacks in Mumbai on 26th Nov 2008, a new act was passed, named as Unlawful Activities (Prevention) act.

Clause 4 of Article 22 of Indian Constitution deals with the provisions related to safeguard the misuse of the preventive detention powers of the government agencies. According to this, a person who has been detained under preventive detention, cannot be held for more than 3 months without the recommendation of an advisory board. This advisory board will be formed containing at least three members who are either high court judges or have the qualification to be high court judges. Clause 5 of Article 22 of Indian Constitution mentions that an individual detained under any order which refer to preventive detention, may be given the right to know the grounds of detention and allowed to make representation against the said detention, on a time that the government sees fit and must be considered as soon as possible.

Collectively these clauses provide that in case of PD:

  • The detenu shall not be detained beyond 3 months unless the Advisory Board (duly constituted) reports prior to the expiration of 3 months that there is in its opinion sufficient cause for such detention (as against production within 24 hours before a magistrate).
  • The detenu is to be furnished, as soon as may be, the grounds for his detention.
  • The detenu is to be provided the earliest opportunity of making a presentation against the order of detention (as against the right of consulting and being defended by a legal practitioner).

Clause 6 of Article 22 of Indian Constitution states that while disclosing the grounds of detention to a person, under clause (5) of Article 22 of Indian Constitution, the government has a right to withhold the specifics or facts which it may consider will harm the public interest. The Court has no power[i] to impose its opinion as to whether it is against the public interest or not to disclose any particular fact or facts. Once the authority refuses to disclose any fact or facts in the ‘public interest’, the Court shall have no power to declare that it was not against the public interest to disclose those facts.

Explanation of Clause 7 of Article 22 of Indian Constitution –

It describes the powers of the parliament as follows:

(a)   The parliament can define the necessary situations in which a person or class can be detained for more than 3 months, without consulting with the Advisory Board. However, they will need to pass a law for this.

(b)   It can decide the maximum period of detention

(c)    It can modify or define the procedure which is to be followed by the advisory board.

Case Laws

D.K Basu V State of West Bengal-

In this case, D.K Basu, the Executive chairman of West Bengal Legal Aid Services wrote to the Chief Justice of India about the deaths occurring in police custody which was treated as a writ petition and thus the Supreme Court issued guidelines that are-

1. Police personnel should wear accurate, visible and clear identification and name tags with their designations while carrying out interrogation and arrest.

2. A memo of arrest shall be prepared by arresting police officer and shall be attested by at least one witness and countersigned by the arrestee.

3. One friend or relative of the arrestee shall be informed, as soon as practicable, of the arrest and detention at the place in question

4. Where the next friend or relative of the arrestee lives outside the district then he or she must be notified by the police of the time, place of arrest and venue of custody within 8 to 12 hours of the arrest

5. Arrestee must be informed of his right as soon as he or she is arrested or detained

6. An entry must be made in the diary at the place of detention regarding all the particulars like arrest of the person, name of next friend who has been informed and the names of the police officers in whose custody the arrestee is detained.

7. On request, the arrestee should be examined for injuries at the time of arrest and provided with a copy of the resulting report, signed by both the officer and arrestee.

8. The arrestee should undergo a medical examination every 48 hours by a doctor from an approved panel

9. Copies of all documents regarding the arrest are to be sent to the appropriate local Magistrate for his or her records

10. The arrestee may be permitted to meet with his or her lawyer during interrogation , though not throughout the interrogation

11. A police control room must be established at all district and State headquarters where information regarding arrest should be received within 12 hours of the arrest and displayed on a conspicuous notice board.

Rudal Shah v. State of Bihar[ii]

In this case, the petitioner was acquitted by a Sessions Court on June 3, 1968. He was, however, released from jail on October 16, 1982. The petition was filed in the Supreme Court of India while he was in jail and he was released only after submission of the petition. One of his prayers in the petition was for compensation for his illegal detention in the jail for over 14 years. Holding the detention illegal, the Court ordered the State of Bihar to pay Rs.30000 to the petitioner as an interim measure and it is evident that the State will be vicariously liable to pay damages to the victims of unlawful arrests/detentions by its enforcement agencies.

Bhim Singh v. State of Jammu and Kashmir-

In this case, a Member of Legislative Assembly (M.L.A.) of Jammu and Kashmir was detained by the police on the eve of the Assembly sessions. From the facts of the case the Supreme Court came to the conclusion that Bhim Singh was not produced either before the Magistrate on 11th or before the Sub Judge on 13th , though he was arrested in the early hours of 10th of September, 1985. According to Article 22(2) of the Constitution of India, persons arrested or detained “shall be produced before the nearest Magistrate within a period of twenty four hours.” On the given facts the Court found that the conduct of police officers was a gross violation of Bhim Singh’s constitutional rights under Articles21 and 22(2). The above discussion amply establishes the fact that persons who are unlawfully deprived of the personal liberty by the officials are legally entitled to claim compensation or damages from the State.

International Scenario

Article 9(5) of the International Covenant on Civil and Political Rights, 1966 provides that any person “who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation”. While acceding to this covenant in 1979, the Government of India declared, inter alia that “under the Indian legal system, there is no enforceable right to compensation for persons claiming to be victims of unlawful arrest or detention against the State”. 

Article 6 of the African Charter on Human and Peoples’ Rights and Article 7 of the American Convention on Human Rights provides for the prohibition of arbitrary arrest or imprisonment.

The European Convention on Human Rights specifically enumerates the grounds which can lawfully justify a deprivation of liberty in the Contracting States. It focuses on the rights of an individual towards liberty and security. No one shall be deprived of his liberty in the following circumstances in accordance with a procedure prescribed by law that is-

(a) lawful detention of an individual after conviction by a competent court;

(b) lawful arrest or detention of a person for not obliging the lawful order of a court or any provision prescribed by law

(c) the lawful arrest or detention of a person before the competent legal authority on reasonable suspicion of having committed an offence or fleeing after commission

(d) lawful detention of a minor by lawful order for educational supervision or for bringing him before the competent legal authority;

(e) lawful detention of persons who are insane, alcoholics or drug addicts or for the prevention of the spreading of infectious diseases,

(f) lawful arrest or detention of any individual to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

Legally custody is defined as, when a person’s freedom of movement has been denied by law enforcement agencies, such as during transport prior to registering a case, or during arrest, prosecution, sentencing, and correctional confinement. Death in custody is defined as death occurring in some form of custodial detention, such as police cell or prison. Sections 330, 331 & 348 of IPC and Section 76 of Criminal Procedure Code and Section 29 of the Police Act, 1861 were enacted to curb the torturing behavior of policemen to avoid increasing custodial death.

Death occurring in custody is considered to be a very sensitive phenomenon, as the person is solely dependent on the custodial authority for all of his constitutional rights including access to health care and it is usually considered as unnatural death by the public at large. As such it creates a hue and cry among general population and sometimes, causes political involvement. But in contrast to general belief, deaths occurring in custody could be due to natural causes along with un-natural causes.

 Natural deaths may be due to disease or intoxication already existing in the deceased prior to the custody and aggravated thereafter or may have developed after taken into the custody. These are mainly due to unawareness and sometimes, carelessness on the part of the officials about the health status of the inmates and also, due to poor condition of the cells where inmates are kept. Unnatural death may be due to various causes, such as suicides, various accidents or tortures by the hand of officials and/or fellow inmates and can occur during any period of the custody.

Asian Centre for Human Rights (ACHR) in its report stated that, the Supreme Court had made it clear that prisoners are persons and are entitled to fundamental rights while in custody (in Sunil Batra (II) v. Delhi Administration. Later, in Rama Murthy v. State of Karnataka) and thus the SC identified as many as nine issues facing prisons and needing reforms which are:

  • Over-crowding
  • Delay in trial
  • Torture and ill-treatment
  • Neglect of health and hygiene
  • Insubstantial food and inadequate clothing
  • Prison vices
  • Deficiency in communication
  • Streamlining of jail visits
  • Management of open air prisons

Frequently Asked Questions (FAQs)-

1. Can a person under preventive detention vote?

According to Proviso to sub-Section (5) of Section 62 of the Representation of the People Act, 1951 voting rights on the electors subjected to preventive detention has been enlisted. Rule 18 of the Conduct of Elections Rules, 1961, states that the electors under preventive detention are eligible to vote in an election.

2. Where did preventive detention originate?

In 1970 in France the practice of preventive detention was firstly recognized by the courts. In 1984 the U.S. Congress adopted a preventive detention act. The following act was challenged in in the case of United States v. Salerno in 1987 and the court held that the preventive detention bill violated neither the due process clause of the Fifth Amendment nor the excessive bail language of the Eighth Amendment. After the case of Salerno, preventive detention laws were adopted in a number of U.S. states.


[i]Puranlal Lakhanpal v. Union of India, AIR 1958 SC 163 : 1958 SCR 460.

[ii]A.I.R. 1983 S.C. 1086.

[iii] Article 22 of the Indian Constitution, 1950






Mohini Chaturvedi
I am Mohini Chaturvedi pursuing BA.LLB from Sharda University. The most attractive aspects of law which I like is Criminal Law and Intellectual Property law. Other activities in which I am specifically involved are reading articles, watching web series and movies as well. I am also involved in participating in moot court competitions and conferences and article writing is my passion. I always like to undertake difficult tasks in order to learn something out it which is beneficial and all must do that.