Article 22, 23 and 24 of the Indian Constitution

1. PROTECTION AGAINST
ARREST AND
DETENTION
Article 22

2.  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.

3.  The 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 of the grounds 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 authorises further detention.

4.  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 the income tax, and
deportation of an alien.
 They apply only to an act of a criminal or quasi-
criminal nature or some activity prejudicial to public
interest.

5.  (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.

6.  (iii) The detenu should be afforded an opportunity to make a
representation against the detention order. Article 22 also
authorises the Parliament to prescribe
(a) the circumstances and the classes of cases in which a person
can be detained for more than three months under a preventive
detention law without obtaining the opinion of an advisory board;
(b) the maximum period for which a person can be detained in any
classes of cases under a preventive detention law; and
(c) the procedure to be followed by an advisory board in an inquiry.
The 44th Amendment Act of 1978 has reduced the period of
detention without obtaining the opinion of an advisory board from
three to two months. However, this provision has not yet been
brought into force, hence, the original period of three months still
continues.

7.  The Constitution has divided the legislative power with
regard to preventive detention between the Parliament
and the state legislatures.
 The Parliament has exclusive authority
 to make a law of preventive detention for reasons
connected with defence foreign affairs and the
security of India.
 Both the Parliament as well as the state legislatures
can concurrently make a law of preventive detention
for reasons connected with the security of a state,
 the maintenance of public order and the maintenance
of supplies and services essential to the community.

8.  The preventive detention laws made by the Parliament are:
(a) Preventive Detention Act, 1950. Expired in 1969.
(b) Maintenance of Internal Security Act (MISA), 1971. Repealed in
1978.
(c) Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act (COFEPOSA), 1974.
(d) National Security Act (NASA), 1980.
(e) Prevention of Blackmarketing and Maintenance of Supplies of
Essential Commodities Act (PBMSECA), 1980.
(f Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985.
Repealed in 1995. (g) Prevention of Illicit Traffic in Narcotic Drugs
and Psychotropic Substances Act (PITNDPSA), 1988. (10
Prevention of Terrorism Act (POTA), 2002.
Repealed in 2004. It is unfortunate to know that no democratic
country in the world has made preventive detention as an integral
part of the Constitution as has been done in India. It is unknown in
USA. It was resorted to in Britain only during

9. Article 22
 Safeguards against the arbitrary arrest and detention: Article 22
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.
 Article 22(1) and (2) are also called Rights of an arrested
person
 A person cannot be arrested and detained without being informed
why he is being arrested.
 A person who is arrested cannot be denied to be defended by a
legal practitioner of his choice. This means that the arrested person
has right to hire a legal practitioner to defend himself/ herself.
 Every person who has been arrested would be produced before the
nearest magistrate within 24 hours.
 The custody of the detained person cannot be beyond the said
period by the authority of magistrate

10. The Article 22(1) and 22(2) make the above
provisions
 However, Article 22(3) says that the above
safeguards are not available to the following:
 If the person is at the time being an enemy alien.
 If the person is arrested under certain law made for
the purpose of “ Preventive Detention”
 The first condition above is justified, because when
India is in war, the citizen of the enemy country may be
arrested.
 But the second clause was not easy to justify by the
constituent assembly.
 This was one of the few provisions which resulted in
stormy and acrimonious discussions.

11. Preventive Detention Laws A person can be put in jail / custody for two
reasons.
 One is that he has committed a crime.
 Another is that he is potential to commit a crime in future.
 The custody arising out of the later is preventive detention and
in this, a person is deemed likely to commit a crime. Thus
Preventive Detention is done before the crime has been
committed.
 The definition of Preventive detention itself is so confusing.
For example: How one can say that a person will do a
crime in future? What are the implications of arresting a
person without having committed a crime? Why
Preventive Detention in peacetime. Isn’t it against the
safeguards of our own citizens as provided by Article 22?
http://www.gktoday.in/article-22-and-preventive-detention-in-
india/

12. The preventive detention laws are repugnant to modern
democratic constitutions---
They are not found in any of the democratic countries.
In England, the preventive detention law was
resorted to only during the time of war.
Of the provisions of the “Preventive Detention” are
unlawful in most countries like USA & UK, then why
we India has such thing?
The answer of above question is as follows: India is a
country having multi-ethnic, mutli-religious and
multilingual society. Caste and communal violence is
very common in India. Apart from that the
circumstances at the time , when our constitution
came in force demanded such provisions.
http://www.gktoday.in/article-22-and-preventive-
detention-in-india/

13. Cntd….
 This is evident from following statement of Dr.
Bhimrao Ambedkar: “….in the present
circumstances of the country,
 it may be necessary for the executive to detain a
person who is tempering either with the public
order or with the defense services of the country.
In such case,
 I don’t think that the exigency of the liberty of an
individual shall be above the interests of the state”
Dr. B R Ambedkar.

14. However, the provisions of the constitution seem to be ambiguous
and this ambiguity has been tried to do away with some
provisions.
These provisions are mentioned in Article 22 (1), 22(5), 22 (6).
Here is a summary of these provisions:
1. Every case of preventive detention must be authorized by law and
not at the will of the executive.
2. The Preventive detention cannot extend beyond a period of 3
months Every case of preventive detention must be placed before
an Advisory Board composed of Judges of the High Court (or
persons qualified for Judges of the High Court)
3. The case must be presented before the Advisory Board within 3
months.
4. A continued detention after 3 months must be having a “favours of
the Advisory Board”.
5. The person will be given opportunity to afford earliest opportunity
to make a representation against the preventive detention.
6. No person can be detained indefinitely

15. Article 22 (7) provides exception to the
above provisions.
 This Article mandates that: When parliament
prescribes by law the circumstances under
which a person may be kept in detention may
be kept in detention beyond 3 months without
the opinion of the advisory board. Parliament
by law can also describe under the same law,
the maximum period of detention.

16. Right Against Exploitation In Indian
Constitution
 The Rights against Exploitation is provided under
Articles 23 and 24 of the Constitution of India.
 Right to personal liberty is never real if some
people are exposed to exploitation by others.
 Arts. 23 and 24 of the constitution are designed to
prevent exploitation of men by men.
 Thus rights ensured by these two articles may be
considered as complimentary to the individual
rights secured by Arts. 19 and 21 of the
constitution.

17. Article 23 of the Indian Constitution reads as follows :
 “Traffic in human beings and beggar
 and similar other forms of forced labour are
prohibited
 and any contravention of this provision shall
be an offence punishable in accordance with
law.”


18.  “Nothing in this article shall prevent the state
from imposing compulsory service for public
purposes
 and in imposing such service the state shall
not make any discrimination on grounds only
of religion, race, caste of class or any of them.

19. Cntd…
 It is available to both citizen and non citizen.
 Art 23 protects individual not only against the
state but also private citizens.
 Begar-is involuntary work without payment.
 This clause does not prohibit forced labour as
punishment for a criminal offence.
 Vishal jeet v. UOI AIR 1990 SC 1412-Sc
issued direction to state govts and UT’s for
eradicating the evil of child prostitution and for
evolving programes for the care ,protection,
treatment etc.

20.  Gaurav jain v UOI AIR1990 SC 292-problem of
prostitution
 Immoral traffic prevention Act 1956
 And art 39(e)n (f) obligation on state for protection of
children and youth against exploitation and against
moral and material abandonment.
 Chandra v. state of rajasthan AIR 1959 Raj
186(sarpach of the village ordered every household to
send one man with spade and iron pan, to render free
service for the embankment for the village tank,n
Rajastahn HC held this order to be begar and violative
of 23(1).
 Kahason thangkhul v simirei shailei AIR 1961
Manipur 1 one day free labour of one man from
each household everyone to headman of the
village was declared as begar.

21. Cntd….
 Ever since the dawn of civilization in every society, the stronger
exploited the weak.
 Slavery was the most prevalent and perhaps the cruelest form of
human exploitation.
 Our constitution does not explicitly forbid slavery.
 The scope of Article 23 is far wide.
 Any form of exploitation is forbidden.
 Thus forcing the landless labour to render free service by the land-
owner is unconstitutional.
 Equally, forcing helpless women into prostitution is a crime.
The intention of the constitution is that whatever a person
does must be voluntary.
 There must not be any element of coercion involved behind a
man’s action.

22. Cntd…exception
 The state however may call upon citizens to
render national service in defence of the
country.
 Thus conscription is not unconstitutional.
But in compelling people to render national
service,
 the state must not discriminate on
grounds of race, sex, caste or religion.

23. Article 24
 Art. 24 forbids employment of child-labour in
factories or in hazardous works.
 The art. reads ”No child below the age of
fourteen years, shall be employed to work in
any factory or mine or, engaged in any other
hazardous employment.”

24. Cntd….
 In an environment of all pervading poverty, children are often forced
to seek employment to earn a living.
 Employers often find it less costly to engage child labour at a cheap
price.
 But children so employed do not get opportunities for development.
 Thus, employment of child labour is a form of traffic in human
beings.
 Hence it is justifiably –forbidden.
 But employment of child labour cannot be effectively checked
unless
 there is overall improvement of economic conditions of the poorer
sections of the society.
 This provision of the constitution remains a pious wish even today.