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Home > Know Your Rights > Right against Arrest and Detention
FAQ's | Landmark Judgements | Legal Frameworks

FAQ's

Q1.  What is meant by right to protection against arrest and detention?

A1.  Right to protection against arrest and detention is a fundamental right given to all citizens of India under Article 22 by the Constitution of India. It gives certain basic rights to every person who is arrested for an offence, irrespective of him being guilty or innocent. The main purpose of this right is to give a fair opportunity to the arrested person to defend himself and safeguard his right to life and personal liberty.

 

Q2.  What are the main features of the Right to protection against arrest and detention?

A2.  Right to protection against arrest and detention has three features:

1. It gives every person who is arrested, the right to be informed of the cause of his arrest.

2. The arrested person has the right to consult, and to be defended by a lawyer of his choice. He is allowed to consult his lawyer immediately after his arrest.

3. Every person arrested and detained in custody has the right to be produced before the nearest Magistrate within a period of twenty-four hours and he can be kept in continued custody only with the orders of the Magistrate.

 

Q3.  Are there any exceptions to this right? Can a person be arrested without giving him the rights granted under Article 22?

A3.  Yes a person can be arrested without giving him the protections granted under right against arrest and detention. There are two exceptions to this right –

1.  Any person who is for the time being an enemy alien, that is, who belongs to a country that is an enemy of India, is not given protections under Article 22.

2.  Any person who is arrested or detained under any law providing for preventive detention is also not protected under Article 22.

 

Q4.  Why were these exceptions adopted?

A4.  The exceptions to right to protection against arrest and detention with respect to enemy aliens and persons arrested under preventive detention law were imposed to safeguard the security of the nation. If India were at war with another country, considerations of national security may demand the arrest and detention of a person who is the citizen of the enemy country. He may not be given the rights guaranteed under Article 22 (1) and (2).  Also, a person is arrested under preventive detention law because there is a threat to the peace and tranquility of the society if he is allowed to roam freely. He is arrested on grounds of suspicion to prevent any future crime that he would have committed, if free.

 

Q5.  Do the people arrested under preventive detention have any safeguards?

A5.  There are many safeguards for the people arrested under preventive detention so that the law is not misused. First, every case of preventive detention must be authorized by law. It cannot be at the will of the executive. Secondly, under the law of preventive detention, a person cannot be detained for a period of more than three months. It means that if the government feels that a person being at liberty can be a threat to the law and order or to the unity and integrity of the nation, it can detain or arrest that person to prevent him from doing this possible harm for three months maximum.  If preventive detention is to be increased for a period longer than three months, the case must be placed before an Advisory Board composed of High Court judges.

 

Q6.  What if a person who is arrested is poor and cannot afford to hire the services of a lawyer?

A6.  If the arrested person cannot afford a lawyer, then he can request the Magistrate before whom he is produced after arrest to arrange for a lawyer for him. It is his fundamental right to get legal aid free of cost.

 
 
 
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