Q. “The Constitution of India provides Protection against arrest and detention in certain cases'.” Elaborate the statement.




‘presumption of the innocence of the accused, until he proved guilty’, this principle is the one of the ornaments of our Constitution. In the chapter of fundamental rights itself, articles 20(3), 22(1-7) were added, to provide the rights of the accused person and safeguards against preventive detention.


Rights of Arrested Person

I.                     Right to Silence:

The constitution of India guarantees every person right against self-incrimination under Article 20 (3), which provides that No person accused of any offense shall be compelled to be a witness against himself.


II.                   Right to Know the Grounds of Arrest:

It is the legal right of the accused that as soon as of his arrest, he shall be communicated the reason of his arrest. Article 22(1) and sec 50 of CR.P.C.


III.                 Right to be defended by a legal practitioner of his choice:

The same sub clause of article 22 provides the no person shall deny the right to avail a legal practitioner of his choice, or if he is unable to afford it, then it will be the duty of the state to provide the same to him.


IV.                Right to be produced before a magistrate:

Article 22(2) provides that no person shall be kept in custody more than 24 hours of time, accept the time necessary for the travel and other purposes. On the one hand it is the right of the accused, and on the other hand, under section 56 it is the duty of the police officer.


V.                  Right to speedy trial:

Article 39(A)of COI put the obligations on the state to provide for speedy trial. Now, after plethora of judgments by hon’ble Supreme Court and various High Courts on this subject, it becomes a well-established principle that it is not merely a symbolic provision, but fundamental right of the accused.


Exception of above described rights

Clause 3 of article 22 made it very clear that the application of these rights are not for aliens and persons arrested in preventive detention Laws.


Rights for the persons detained in Preventive detention Laws

Preventive detention means, detention on the strong apprehension that a person may commit crime in future. These are also called necessary evils for the society.

Article 22 further deals with certain rights which are provided in case of preventive detention.

I.                     Review of the detention by Advisory Board: Clause 4 of the article states that no law framed for preventive detention gives authority to detain any person for more than 3 months unless; an advisory board reports a sufficient cause for such detention. The people on the advisory board should be equally qualified as that of a judge of the high court.

II.                   Communication of grounds of detention to detenu: Clause 5 of the article states that any authority while detaining any person under law providing for preventive detention shall communicate the grounds of detention to the person as soon as possible.

The same clause also provides the right to be represented by a legal practitioner. This right is the extension of clause 2 of article 22, and hence, put the same obligations on the police.

It is important to note here, that the detaining authority is under no obligation to provide the grounds of detention to detenu prior to his arrest, but is advised to do so at the earliest thereby providing an opportunity of representation to the detenu as well.

Clause 7 empowers the parliament for framing the rules and regulations regarding preventive detention and the jurisdiction of the advisory board.


Important Cases

I.                     In the case of Hussainara Khatoon V. Home secretary, Bihar: it was held that apart from free legal aid and right to speedy trial, every person has the right to be represented by a legal practitioner, and if in case, a person is unable to higher it by his own, then state has the liability to provide to him the same.

II.                   In the case of Lallubhai Jogibhai Patel V. UOI: it was held that grounds must be communicated in the understandable language of the detainue, it should be not done for mere formality.

III.                 In D.K basu V. state of Punjab, the 11 points guidelines for arrest and detention was framed. This is the landmark case when it comes to rights of the accused.

IV.                A.S. Mohammed Rafi v. State of Tamil Nadu, in this case, when bar council of TN state refused provide the legal aid to the accused, because the set police officer has been charged to allegedly assaulted some lawyers, the same action was declared unethical and unprofessional by the court, and held that the act of bar council violates the basic rights of the accused.



although above discussed provisions are there in our constitution to protect individuals against the misuse of these Laws, but still, the ample number of cases are coming daily, which shows serious need for doing more in this regard.



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