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3.1 INTRODUCTION :

First two clauses of Article 22 read as follows :

Article 22 (1) and (2) confers four following fundamental rights upon a

person who has been arrested :

i) Right to be informed, as soon as may be, of the grounds for such

arrest.

ii) Right to consult and to be defended by a legal practitioner of his

choice.

iii) Right to be produced before the nearest magistrate within

twenty-four hours of his arrest excluding the time necessary for

the journey from the place of arrest to the Court of Magistrate.

iv) Right not to be detained in custody beyond the period of twenty-

four hours without the authority of the Magistrate.

3.2 RIGHT TO BE INFORMED OF THE GROUNDS OF ARREST :

The object underlying the provision that the ground for arrest should be

communicated to the person arrested appears to be this. On learning about the

ground for arrest, the man will be in a position to make an application to the

appropriate court for bail or move the High Court for a writ of habeas corpus.

22. Protection against arrest and detention in certain cases - (1) No person who is arrested shall be detained in custody

without being informed, as soon as may be, of the grounds for such

arrest nor shall he be denied the right to consult, and to be defended by, a

legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be

produced before the nearest magistrate within a period of twenty-four

hours of such arrest excluding the time necessary for the journey from

the place of arrest to the court of the magistrate and no such person shall

be detained in custody beyond the said period without the authority of a

magistrate.

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Further, the information will enable the arrested person to prepare his defence

in time for purposes of his trial. For these reasons, it has been provided in

clause (1) of Article 22 that the ground for the arrest must be communicated to

the person arrested as soon as possible.

In re, Madhu Limaye1 the facts were : Madhu Limaye, Member of the

Lok Sabha and several other persons were arrested. Madhu Limaye addressed

a petition in the form of a letter to the Supreme Court under Article 32

mentioning that he along with his companions had been arrested but had not

been communicated the reasons or the grounds for arrest. It was stated that the

arrested persons had been merely told that the arrest had been made under

sections which are bailable. In the return filed by the State this assertion had

neither been controverted nor had anything been stated with reference to it.

One of the contentions raised by Madhu Limaye was that there was a violation

of the mandatory provisions of Article 22 (1) of the Constitution.

The Supreme Court observed that Article 22 (1) embodies a rule which

has always been regarded as vital and fundamental for safeguarding personal

liberty in all legal systems where the Rule of Law prevails. For example, the

6th Amendment to the Constitution of the United States of America contains

similar provisions and so does Article XXXIV of the Japanese Constitution of

1946. In England, whenever an arrest is made without a warrant, the arrested

person has a right to be informed not only that he is being arrested but also of

the reasons or grounds for the arrest. The court further observed that the two

requirements of Clause (1) of Article 22 are meant to afford the earliest

opportunity to the arrested person to remove any mistake, misapprehension or

misunderstanding in the minds of the arresting authority and, also to know

exactly what the accusation against him is so that he can exercise the second

right, namely of consulting a legal practitioner of his choice and to be

defended by him. Those who feel called upon to deprive other persons of

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liberty in the discharge of what they conceive to be their duty must, strictly

and scrupulously, observe the forms and rules of law. Whenever that is not

done, the petitioner would be entitled to a writ of Habeas Corpus directing his

release. In the present case, the return did not contain any information as to

when and by whom Madhu Limaye and other arrested persons were informed

of the grounds for their arrest. It had not been contended on behalf of the state

that the circumstances were such that the arrested persons must have known

the general nature of the alleged offences for which they had been arrested.

Hence, the Court held that Madhu Limaye and others were entitled to be

released on this ground alone.

3.3 RIGHT TO CONSULT AND TO BE DEFENDED BY LEGAL

PRACTITIONER :

In Article 22 (1) the opportunity for securing services of lawyer is

alone guaranteed. The Article does not require the state to extend legal aid as

such but only requires to allow all reasonable facilities to engage a lawyer to

the person arrested and detained in custody. The choice of counsel is entirely

left to the arrested person. The right to consult arises soon after arrest.

In Janardhan Reddy v. State of Hyderabad2 one of the main points

urged on behalf of the petitioners was that in criminal cases Nos. 17 & 18 of

1949, there was no fair trial, in as much as the persons accused in those cases

were not afforded any opportunity to instruct counsel and they had remained

undefended throughout the trial. So it was contended that the whole trial in

these cases was bad, because the accused were denied the right of being

defended by a pleader. Fourth para of the affidavit filed on behalf of the

petitioners read as follows :

The Court never offered to facilitate my communication with my

relations and friends or to adjourn the case or to appoint counsel at state

expense for my defence. In fact they said they would not adjourn the case

under any circumstances. Being ignorant, I did not know that I had any

right to ask for any of these things.

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As to the circumstances under which the accused were not represented

by a lawyer a counter-affidavit filed by Mr. Hanumantha Naidu, a senior

police officer, who investigated the case stated :

Judges of the High Court had expressed the view that the contention

that the Tribunal did not give the accused an adequate opportunity to engage

lawyers was not well-founded. The Supreme Court observed in this

connection that suggestion of the High Court that the curious attitude adopted

by the accused, to whatever cause it may have been due, to some extent

accounts for their not being represented by a lawyer cannot be ruled out.

However, the Supreme Court further added that the Special Tribunal should

have taken some positive steps to assign a lawyer to aid the accused in their

defence.

Advocate of the petitioners relied on Powell v. Alabama3, in which the

Supreme Court of America observed as :

The Supreme Court while observing that the assignment of a counsel in

the circumstances mentioned in the passage was highly desirable, held that the

judgement cannot rest wholly on American precedents, which are based on the

doctrine of due process of law, which is peculiar to the American Constitution

and also on certain specific provisions bearing on the right of representation in

Facilities were given to the accused to engage lawyers for their

defence. In case in which the accused had no means to engage pleaders for

their defence and applied to the Tribunal for appointment of pleaders at

Government cost, this was done. In some cases, the accused declined to

accept the pleaders appointed by the Tribunal for their defence. Some

engaged pleaders of their choice at their cost. Some accused stated that

they did not want any lawyer to defend them.

In a capital case where the defendant is unable to employ counsel

and is incapable of adequately making his own defence because of

ignorance, feeblemindedness, illiteracy or the like, it is the duty of the

Court whether requested or not, to assign a counsel for him as a necessary

requisite of due process of law.

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a criminal proceeding. The provision which was material to the contention

raised was S. 271 of the Hyderabad Cr. P.C., which corresponded to S. 340

Cr. P.C., 1898, which ran as follows :

Any person accused of an offence before a criminal court or against

whom proceedings are instituted under this code in any such Court may of

right be defended by a pleader.

The Supreme Court observed that this provision must be construed

liberally in favour of the accused and must be read along with the rules made

by the High Courts and the circular orders issued by them enjoining that

where in capital cases the accused has no means to defend himself, a counsel

should be provided to defend him. The court laid down following two

principles in this regard.

(1) That it cannot be laid down as a rule of law that in every capital

case where the accused is unrepresented, the trial should be held to be vitiated.

(2) That a court of appeal or revision is not powerless to interfere if it

is found that the accused was so handicapped for want of legal aid that the

proceedings against him may be said to amount to negation of a fair trial.

By laying down the first principle the Court, in other words, accepted

the position that even in some capital cases the trial would be valid even if the

accused is not represented by a lawyer. This is a literal view of Article 22 (1).

The Court could not show the courage to accept the principle of Powell v.

Alabama. However, by laying down second principle, the Supreme Court at

least sowed a seed for further development of law in this regard in future.

Another important provision in this connection is S. 303 (earlier S.

340) of Criminal Procedure Code, 1973. That Section is in these terms :

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303. Any person accused of an offence before a Criminal Court, or

against whom proceedings are instituted under this code, may of right be

defended by a pleader of his choice.

Before the Constitution come into force, this was probably the only

provision from which the right of the accused to have consultation between

him and his legal advisers appears to have been derived and sustained.

In Ram Sarup v. Union of India4 the facts were : Ram Sarup, petitioner

was a sepoy and subject to the Army Act. He shot dead two sepoys. He was

charged on three counts under S. 69 of the Army Act read with S. 302 of

I.P.C. and was tried by the General Court-Martial. He was found guilty of the

three charges and sentenced to death. One of the contentions raised by the

petitioner was that he was not allowed to be defended at the General Court-

Martial by a legal practitioner of his choice and therefore, there had been a

violation of the provisions of Article 22 (1) of the Constitution. Petitioner

alleged that he had expressed his desire, on many occasions, for permission to

engage a practising civil lawyer to represent him at the trial but the authorities

turned down those requests and told him that it was not permissible under the

Military rules to allow the services of a civilian lawyer and that he would have

to defend his case with the counsel he would be provided by the Military

Authorities. In reply it was stated that this allegation about the petitioner's

requests and their being turned down was not correct, that it was not made in

the petition but was made in the reply after the State had filed its counter-

affidavits in which it was stated that no such request for his representation by

a legal practitioner had been made and that there had been no denial of his

fundamental rights. The Supreme Court was of the opinion that the petitioner

made no request for his being represented at the Court-Martial by a counsel of

his choice, that consequently no such request was refused and that he cannot

be said to have been denied his fundamental right of being defended by

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counsel of his choice. The Court pointed out that the petitioner did not state in

his petition that he had made a request for his being represented by a counsel

of his choice. He had simply stated that certain of his relatives who sought

interview with him subsequent to his arrest were refused permission to see

him and that this procedure which resulted in denial of opportunity to him to

defend himself properly by engaging a competent civilian lawyer through the

resources and help of his relatives had infringed his fundamental right under

Article 22 of the Constitution. If the petitioner had made any express request

for being defended by a counsel of his choice, he should have stated so

straightforwardly in his petition. His involved language could only mean that

he could not contact his relations for their arranging a civilian lawyer for his

defence. This negatived any suggestion of a request to the Military Authorities

for permission to allow him representation by a practising lawyer and its

refusal. The Court held on the facts that there had been no violation of the

fundamental right of the petitioner to be defended by a counsel of his choice

conferred under Article 22 (1) of the Constitution.

In this case too, the Court took a technical view of the matter by

observing that the petitioner did not state in his petition that he had made a

request for his being represented by a counsel of his choice. The Court was

not much impressed by the statement of the petitioner, that he could not

contact his relations for their arranging a civilian lawyer for his defence. After

all a person who is arrested and confined has to take the help of somebody

else like relatives to make provision for engaging a lawyer. But the Court was

inclined to take hyper-technical approach to hold that Article 22(1) is not

violated.

In Nandini Satpathy v. P.L. Dani5 the Supreme Court observed that

Article 22 (1) directs that the right to consult an advocate of his choice shall

not be denied to any person who is arrested. This does not mean that persons

who are not under arrest or custody can be denied that right. The spirit and

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sense of Article 22 (1) is that it is fundamental to the rule of law that the

services of a lawyer shall be available for consultation to any accused person

under circumstances of near-custodial interrogation. Moreover, the observance

of the right against self incrimination is best promoted by conceding to the

accused the right to consult a legal practitioner of his choice. Lawyer's

presence is a constitutional claim in some circumstances in our country also,

and in the context of Article 20(3) is an assurance of awareness and

observance of the right to silence. The Court referred to Miranda decision6

which had insisted that if an accused person asks for lawyer's assistance, at the

stage of interrogation, it shall be granted before commencing or continuing

with the questioning. The Court further observed that Article 20 (3) and

Article 22 (1) may, in a way, be telescoped by making it prudent for the police

to permit the advocate of the accused, if there be one, to be present at the time

he is examined. Over-reaching Article 20(3) and Section 161(2) Cr. P.C. will

be obviated by this requirement. A rule is not laid down that the Police must

secure the services of a lawyer. That will lead to police station lawyer

system, an abuse which breeds other vices. But if an accused person expresses

the wish to have his lawyer by his side when his examination goes on, this

facility shall not be denied, without being exposed to the serious reproof that

involuntary self-incrimination secured in secrecy and by coercing the will,

was the project. Not that a lawyer's presence is a panacea for all problems of

involuntary self-crimination, for he cannot supply answers or whisper hints or

otherwise interfere with the course of questioning except to intercept where

intimidatory tactics are tried, caution his client where incrimination is

attempted and insist on questions and answers being noted where objections

are not otherwise fully appreciated. He cannot harangue the police but may

help his client and complain on his behalf, although his very presence will

ordinarily remove the implicit menace of a police station. The Court observed

that presence of a lawyer is asking for the moon in many cases until a public

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defender system becomes ubiquitous. The police need not wait more than for a

reasonable while for an advocate's arrival.

Nandini Satpathy's Case makes a clear departure from the literal

interpretation stance of the Supreme Court in earlier cases. The case added an

additional fortification to the right to counsel. The Supreme Court went a step

forward in holding that Article 22(1) does not mean that persons who are not

strictly under arrest or custody can be denied the right to counsel. The Court

enlarged this right to include right to counsel to any accused person under

circumstances of near-custodial interrogation. However, the Court took the

help of Article 20 (3) and Miranda decision for this liberal interpretation.

In Joginder Kumar v. State of U.P.7 the Supreme Court held that right

of arrested person upon request, to have some one informed about his arrest

and right to consult privately with lawyers are inherent in Articles 21 and 22

of the Constitution. The Supreme Court observed that no arrest can be made

because it is lawful for the Police officer to do so. The existence of the power

to arrest is one thing. The justification for the exercise of it is quite another.

The Police Officer must be able to justify the arrest apart from his power to do

so. Arrest and detention in police lock-up of a person can cause incalculable

harm to the reputation and self-esteem of a person. No arrest should be made

by Police Officer without a reasonable satisfaction reached after some

investigation as to the genuineness and bona fides of a complaint and a

reasonable belief both as to the person's complicity and even so as to the need

to effect arrest. The Supreme Court issued the following requirements :

(1) An arrested person being held in custody is entitled, if he so

requests, to have one friend, relative or other person who is known to him or

likely to take an interest in his welfare told as far as practicable that he has

been arrested and where is being detained.

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(2) The Police Officer shall inform the arrested person when he is

brought to the police station of this right.

(3) An entry shall be required to be made in the Diary as to who was

informed of the arrest.

These protections from power must be held to flow from Articles 21

and 22 (1) and enforced strictly. The above requirements shall be followed in

all cases of arrest till legal provisions are made in this behalf.

Section 56 (1) of the Police and Criminal Evidence Act, 1984 in

England provides :

We find a shift in judicial concern in Joginder Kumar's Case for

ensuring constitutional right to arrested person. A new angle of approach was

adopted to the interpretation of Article 22(1) but with the help of Article 21.

The Supreme Court recognised three incidental rights of arrested person in

this regard i.e. i) The right to have some one i.e. his relative or friend informed

about his arrest; ii) The right to consult privately with lawyer; iii) The right to

know from the police officer about this right. The Supreme Court imposed

corresponding duties on the police officers.

Custodial death is perhaps one of the worst crimes in a civilised society

governed by the Rules of Law. The rights inherent in Article 21 and 22 (1) of

the Constitution require to be jealously and scrupulously protected. Any form

of torture or cruel, inhuman or degrading treatment would fall within the

inhibition of Article 21 of the Constitution, whether it occurs during

investigation, interrogation or otherwise. The precious right guaranteed by

Article 21 of the Constitution cannot be denied to convicts, under-trials,

Where a person has been arrested and is being held in custody in a

police station or other premises, he shall be entitled, if he so requests, to

have one friend or relative or other person who is known to him or who is

likely to take an interest in his welfare told, as soon as practicable except . .

.

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detenus and other prisoners in custody, except according to procedure

established by law by placing such reasonable restrictions as are permitted by

law. Therefore, the Supreme Court issued in D.K.Basu v. State of W.B.8 the

following requirements to be followed in all cases of arrest or detention till

legal provisions are made in that behalf as preventive measures.

(1) The police personnel carrying out the arrest and handling the

interrogation of the arrestee should bear accurate, visible and clear

identification and name tags with their designations. The particulars of all

such police personnel who handle interrogation of the arrestee must be

recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall

prepare a memo of arrest at the time of arrest and such memo shall be attested

by at least one witness, who may be either a member of the family of the

arrestee or a respectable person of the locality from where the arrest is made.

It shall also be countersigned by the arrestee and shall contain the time and

date of arrest.

(3) A person who has been arrested or detained and is being held in

custody in a police station or interrogation centre or other lock-up shall be

entitled to have one friend or relative or other person known to him or having

interest in his welfare being informed, as soon as practicable, that he has been

arrested and is being detained at the particular place, unless the attesting

witness of the memo of arrest is himself such a friend or a relative of the

arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must

be notified by the police where the next friend or relative of the arrestee lives

outside the district or town through the Legal Aid Organisation in the District

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and the police station of the area concerned telegraphically within a period of

8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have

someone informed of his arrest or detention as soon as he is put under arrest or

is detained.

(6) An entry must be made in the diary at the place of detention

regarding the arrest of the person which shall also disclose the name of the

next friend of the person who has been informed of the arrest and the names

and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also examined at the

time of his arrest and major and minor injuries, if any, present on his/her body,

must be recorded at that time. The Inspection Memo must be signed both by

the arrestee and the police officer effecting the arrest and its copy provided to

the arrestee.

(8) The arrestee should be subjected to medical examination by a

trained doctor every 48 hours during his detention in custody, by a doctor in

the panel of approved doctors appointed by Director, Health Services of the

concerned State or Union Territory. Director, Health Services should prepare

such a panel for all Tehsils and Districts as well.

(9) Copies of all the documents including the memo of arrest, referred

to above, should be sent to illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during

interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all Districts and State

headquarters, where information regarding the arrest and the place of custody

of the arrestee shall be communicated by the Officer causing the arrest, within

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12 hours of effecting the arrest and at the police control room it should be

displayed on a conspicuous notice board.

The Court emphasized that failure to comply with the said requirements

shall apart from rendering the concerned official liable for departmental

action, also render him liable to be punished for contempt of Court and the

proceedings for contempt of Court may be instituted in any High Court of the

country, having territorial jurisdiction over the matter. The requirements flow

from Articles 21 and 22 (1) of the Constitution and need to be strictly

followed. The requirements are in addition to the constitutional and statutory

safeguards and do not detract from various other directions given by the

Courts from time to time in connection with the safeguarding of the rights and

dignity of the arrestee.

Speaking on the right to compensation to arrestee in case of custodial

torture, the Supreme Court observed that monetary or pecuniary compensation

is an appropriate and indeed an effective and sometimes perhaps the only

suitable remedy for redressal of the established infringement of the

fundamental right to life of a citizen by the public servants and the State is

vicariously liable for their acts. The claim of the citizen is based on the

principle of strict liability to which the defence of sovereign immunity is not

available and the citizen must receive the amount of compensation from the

State, which shall have the right to be indemnified by the wrong-doer. In the

assessment of compensation, the emphasis has to be on the compensatory and

not on punitive element. The objective is to apply balm to the wounds and not

to punish the transgressor or the offender, as awarding appropriate punishment

for the offence (irrespective of compensation) must be left to the Criminal

Courts in which the offender is prosecuted; which the state in law, is duty

bound to do. The award of compensation in the public law jurisdiction is also

without prejudice to any other action like civil suit for damages which is

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lawfully available to the victim or the heirs of the deceased victim with

respect to the same matter for the tortuous act committed by the functionaries

of the state. The quantum of compensation will, of course, depend upon the

peculiar facts of each case and no strait jacket formula can be evolved in that

behalf. The relief to address the wrong for the established invasion of the

fundamental rights of the citizen under the public law jurisdiction is, thus, in

addition to the traditional remedies and not in derogation of them. The amount

of compensation as awarded by the Court and paid by the State to redress the

wrong done, may in a given case, be adjusted against any amount which may

be awarded to the claimant by way of damages in a civil suit.

This was a case of PIL. A letter by the Executive Chairman, Legal Aid

Services, West Bengal addressed to the Chief Justice of India drawing his

attention to certain news items published in the newspapers regarding deaths

in police lock-ups and custody was treated by the Supreme Court as a writ

petition.

The Supreme Court observed that with a view to bring in transparency,

the presence of the counsel of the arrestee at some point of time during the

interrogation may deter the police from using the third degree methods during

interrogation.

D.K. Basu's Case not only travels a path of few steps ahead of Joginder

Kumar but also takes a big leap forward. In its anxiety to protect the interests

of the arrested person, the Court has exhibited an instance of judicial over-

activism rather judicial waywardness. The case sounds death-knell to

Montesquieu's theory of separation of powers amongst three organs of the

State. The Supreme Court arrogated to itself the Constituent or at least

legislative power in laying down eleven requirements in this connection. It is

submitted that it is a case of out-right judicial legislation. Showing concern for

the plight of the arrested person is one thing and exceeding one's jurisdiction

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and encroaching on the field of another organ is another thing. The Supreme

Court while interpreting a provision of the Constitution may fill in the

interstices but the zeal to artificially create such interstices and then fill it

should be deprecated. The judicial pendulum swung to the other extreme in

this case. The judiciary needs now self-discipline. This judicial hegemony

needs to be checked. As the other two organs of the state cannot control or

check this judicial encroachment, what is required is doctrine of judicial self-

restraint should be followed. The judiciary should restrain from trespassing in

the field of another organ under the guise of interpretation of the Constitution

or doing complete justice. Though these eleven requirements comprise human

rights jurisprudence and it would be in the fitness of the things, if these were

law, these sweeping eleven requirements laid down by the Supreme Court, it

is submitted, cannot have the status of law as its source is not legislature but

judiciary.

It may be noted that these requirements were held to flow from Article

21 and 22 (1) jointly.

3.4 RIGHT TO BE PROVIDED WITH A LAWYER BY THE STATE

In M.H.Hoskot v. State of Maharashtra9 it was observed by the

Supreme Court that generally speaking and subject to just exceptions, at least

a single right of appeal on facts, where criminal conviction is fraught with

long loss of liberty, is basic to civilized jurisprudence. Every step that makes

the right of appeal fruitful is obligatory and every action or inaction which

stultifies it is unfair and unconstitutional. Pertinent to the point are two

requirements : (i) service of a copy of the judgment to the prisoner in time to

file an appeal and (ii) provision of free legal services to a prisoner who is

indigent or otherwise disabled from securing legal assistance where the ends

of justice call for such service. Both these are State responsibilities under

Article 21. Where the procedural law provides for further appeals these

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requirements will similarly apply. One of the ingredients of fair procedure to a

prisoner, who has to seek his liberation through the court process is lawyer's

services. Judicial justice, with procedural intricacies, legal submissions and

critical examination of evidence, leans upon professional expertise and a

failure of equal justice under the law is on the cards where such supportive

skill is absent for one side. The Indian socio-legal milieu makes free legal

service at trial and higher levels, an imperative processual piece of criminal

justice where deprivation of life or personal liberty hangs in the judicial

balance. Partial statutory implementation of the mandate is found in S. 304 Cr.

P.C., and in other situations courts cannot be inert in the face of Article 21 and

39-A. Maneka Gandhi's Case has laid down that personal liberty cannot be cut

out or cut down without fair legal procedure. Enough has been set out to

establish that a prisoner, deprived of his freedom by court sentence but

entitled to appeal against such verdict, can claim, as part of his protection

under Article 21 and as implied in his statutory right to appeal, the necessary

concomitant of right to counsel to prepare and argue his appeal. If a prisoner

sentenced to imprisonment, is virtually unable to exercise his constitutional or

statutory right of appeal, inclusive of special leave to appeal for want of legal

assistance, there is implicit in the Court under Article 142 read with Articles

21 and 39-A of the Constitution, power to assign counsel for such imprisoned

individual 'for doing complete justice'. The inference is inevitable that this is a

State's duty and not Government's charity. Equally affirmative is the

implication that while legal services must be free to the beneficiary the lawyer

himself has to be reasonably remunerated for his services. Naturally, the State

concerned must pay a reasonable sum that the court may fix when assigning

counsel to the prisoner. Of course, the court may judge the situation and

consider from all angles whether it is necessary for the ends of justice to make

available legal aid in the particular case. That discretion resides in the Court.

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In this case, the party, though offered legal aid by the Court, preferred

to argue himself. The Court observed that even so it upheld the right to

counsel not in the permissive sense of Article 22(1) and its wider amplitude

but in the peremptory sense of Article 21 confined to prison situations. The

Court summarised the legal position as follows :

i) Where the prisoner is disabled from engaging a lawyer, on

reasonable grounds such as indigence or incommunicado

situation, the Court shall, if the circumstances of the case, the

gravity of the sentence and the ends of justice so require, assign

competent counsel for the prisoner's defence, provided the party

does not object to that lawyer.

ii) The State shall pay to assigned counsel such sum as the court

may equitably fix.

iii) These benign prescriptions operate by force of Article 21

[strengthened by Article 19 (1) (d) read with sub-art (5)] from

the lowest to the highest court where deprivation of life and

personal liberty is in substantial peril.

Article 22 (1) does not provide to arrested person, right to be provided

with a lawyer by the State. However, in M.H. Hoskot's Case the Supreme

Court did not hesitate to imply this right in Article 22 (1) and 21 jointly while

pressing into service application of a Directive Principle of State Policy under

Article 39 A of Equal Justice and free legal aid. To take further support for

this implication it took help of Article 142 for doing complete justice. This is

an example of liberal interpretation of Article 22 (1) and other Articles of the

Constitution which carves out a right for the indigent prisoner or a prisoner in

incommunicado situation to be assigned counsel by the Court at the State's

cost. It seems that after the decision of Maneka Gandhi giving a new

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dimension to the Article 21, the Supreme Court's judicial activism started

blossoming in this regard.

The State Government must also provide at its own cost a lawyer to the

under-trial prisoner with a view to enable him to apply for bail in exercise of

his right under proviso (a) to Sub-section (2) of Section 167 of Cr. P.C. and

the Magistrate must take care to see that the right of the under-trial prisoner to

the assistance of a lawyer provided at State costs is secured to him. It is a

constitutional right of every accused person who is unable to engage a lawyer

and secure legal services on account of reasons such as poverty, indigence or

incommunicado situation, to have free legal services provided to him by the

State and the State is under a constitutional mandate to provide a lawyer to

such accused person if the needs of justice so require. If free legal services are

not provided to such an accused, the trial itself may run the risk of being

vitiated as contravening Article 21 and every State Government should try to

avoid such a possible eventuality. Hussainara Khatoon v. State of Bihar10

reiterates the right of every accused person who is unable to engage a lawyer

and secure legal services on account of reasons such as poverty, indigence or

incommunicado situation, to have free legal services provided to him by the

State. The Court added a further protection to this right by holding that if free

legal services are not provided to such an accused, the trial itself may run the

risk of being vitiated as contravening Article 21.

The Case of Ranjan Dwivedi v. Union of India11

raised a question

whether the right to be defended by a legal practitioner of his choice under

Article 22 (1) of the Constitution comprehends the right of an accused to be

supplied with a lawyer by the State. The Supreme Court held that the accused

petitioner who is being tried for murder before the Sessions Court is not

entitled to the grant of a writ of mandamus for the enforcement of the

Directive Principle enshrined in Article 39 A by ordaining the Union of India

78

to give financial assistance to him to engage a counsel of his choice on a scale

equivalent to, or commensurate with, the fees that are being paid to the

counsel appearing for the State. As is clear from the terms of Article 39 A, the

social objective of equal justice and free legal aid has to be implemented by

suitable legislation or by formulating schemes for free legal aid. The remedy

of the petitioner, if any, lies by way of making an application before the Trial

Court under sub-section (1) of S. 304 of the Cr. P.C. and not by a petition

under Article 32 of the Constitution.

The Court further observed that although in the earlier decisions the

Court paid scant regard to the Directives on the ground that the Courts had

little to do with them since they were not justiciable or enforceable, like the

Fundamental Rights, the duty of the Court in relation to the Directives came to

be emphasized in the later decisions laying down certain broad propositions.

One of these is that there is no disharmony between the Directives and the

Fundamental Rights because they supplement each other in aiming at the same

goal of bringing about a social revolution and the establishment of a Welfare

State, which is envisaged in the Preamble. The Courts therefore, have a

responsibility in so interpreting the Constitution as to ensure implementation

of the Directives and to harmonize the social objective underlying the

Directives with the individual rights. Primarily, the mandate in Article 39 A is

addressed to the Legislature and the Executive, but insofar as the Courts of

Justice can indulge in some judicial law making within the interstices of the

Constitution, the courts too are bound by this mandate. Many a time, it may be

difficult for the accused to find sufficient means to engage a lawyer of

competence. In such cases, the Court possesses the power to grant free legal

aid if the interests of justice so require. The remedy of the petitioner therefore,

is to make an application before the Sessions Court making out a case for the

grant of free legal aid and if the Court is satisfied that the requirements of

79

Sub-sec. (1) of Section 304 of the Code are fulfilled, he may make necessary

directions in that behalf.

S. 304 (1) of Criminal Procedure Code reads :

The Court in Ranjan Dwivedi's case referred to M.H. Hoskot's case and

Hussainara Khatoon's case and also observed that primarily the mandate in

Article 39 A is addressed to the Legislature and the Executive but insofar as

the Courts of Justice can indulge in some judicial law-making within the

interstices of the Constitution, the Courts too are bound by this mandate. Even

then the Court expressed its inability to grant remedy to the petitioner on the

ground that he sought writ of mandamus for the enforcement of the Directive

Principle enshrined in Article 39 A. The Court directed the petitioner to

approach the Additional Sessions Judge under sub-section (1) of Section 304

of the code of Criminal Procedure. It cannot be understood why the Court

expressed its inability or helplessness to grant relief to the accused petitioner

in the face of M.H. Hoskot and Hussainara Khatoon decisions of which it took

cognizance which clearly had held that right to counsel in case of indigent

accused is a fundamental right under Article 22 (1) and 21. The Supreme

Court could have easily brushed aside the technicality of petition being for the

enforcement of a Directive Principle of State Policy under Article 39 A and

given relief under Article 22 (1) and 21 which were enforceable fundamental

rights.

304. (1) where, in a trial before the Court of Session, the accused is

not represented by a pleader and where it appears to the Court that the

accused has not sufficient means to engage a pleader, the Court shall

assign a pleader for his defence at the expense of the State.

80

3.5 STATUTES BARRING APPEARANCE OF LAWYERS :

The Madhya Bharat Panchayat Act was passed on June 17, 1949. By S.

75 of the Act, the Nyaya Panchayat is empowered to try certain offences

committed within its jurisdiction including offence under S. 447 of the Indian

Penal Code. The Nyaya Panchayat has power to impose a fine not exceeding

Rs. 100, but it has no power to inflict a substantive sentence of imprisonment

nor a sentence of imprisonment in default of payment of fine. By S. 89, the

decision of the Nyaya Panchayat in its criminal jurisdiction is final and not

appealable except that it is subject to revision by the Sessions Judge. Section

87 provides that subject to the provisions of S. 63, any party may appear

before a Nyaya Panchayat by a duly authorised representative. Section 63

provides :

No legal practitioner shall appear on behalf of or shall plead for or

defend any party in a dispute, case or proceedings pending before the Nyaya

Panchayat.

The facts of the case State of M.P. v. Shobharam12

were on a complaint

of trespass the police registered a case against the respondents under S. 447 of

the Indian Penal Code. The respondents were later arrested by the police and

released on the execution of surety bonds. The case against the respondents

was thereafter put up before the Nyaya Panchayat, a Court established under

the Madhya Bharat Panchayat Act, 1949. The Nyaya Panchayat, after trial,

convicted and sentenced the respondents to a fine of Rs. 75 each. The

conviction was upheld by the Additional Sessions Judge. The respondents

then moved the High Court of Madhya Pradesh. The High Court declared that

S. 63 is void to the extent that it denied the respondents the right to be

defended by a legal practitioner of their choice in the trial before the Nyaya

Panchayat, quashed the conviction and sentences. The State of Madhya

Pradesh preferred the appeal to the Supreme Court.

81

Majority consisting of Bachawat, Shelat and Hidaytullah JJ.

(Mudholkar J. and Sarkar C.J. dissenting) held that Section 63 of the Madhya

Bharat Panchayat Act, 1949 is violative of Article 22 (1) and is void to the

extent it denies any person who is arrested the right to be defended by a legal

practitioner of his choice in any trial of the crime for which he is arrested.

The second part of Article 22 (1) reads :

... nor shall he be denied the right to consult and to be defended by a

legal practitioner of his choice.

Mr. Sen, advocate for the appellant submitted that he means a person

who is arrested and detained, and as the respondents were not detained at the

time of the trial before the Nyaya Panchayat, the constitutional guarantee is

not available to them. He argued that in State of Punjab v. Ajaib Singh13

The

Supreme Court has restricted the constitutional guarantee embodied in the first

part of Article 22 (1) to persons arrested otherwise than under a warrant issued

by a Court and he submitted that this restricted interpretation should not be

given to the second part and the protection of the second part should be

extended to all persons. But he also submitted that in the context of Article 21

the right given by the second part of Clause (1) of Article 22 should be limited

to trials in which any person is deprived of his life or personal liberty or is in

jeopardy of being so deprived.

Bachawat J. (with him Shelat J.) observed that the pronoun he in the

second part of Article 22(1) must refer to the last antecedent. He therefore,

means any person who is arrested. He has the right to consult his lawyer and

to be defended by him, so that he may guard himself against the accusation for

which he is arrested. Clause (1) and (2) of Article 22 safeguard the rights of

the person arrested. The arrest of any person on a criminal charge is a step in

an intended criminal proceeding against him. Upon arrest, he may either be

released on bail or be remanded into custody. The arrest of the accused on a

82

criminal charge has thus an intimate connection with his eventual trial on the

charge. It is at the trial in the Criminal Court that the accused defends or is

defended by counsel. Section 340 (now S. 303) of Cr. P.C., therefore, provides

that any person accused of any offence before a Criminal Court, may of right

be defended by a pleader. In this background, the right of defence by a legal

practitioner given by Article 22 (1) must extend to defence in a trial in a

Criminal Court.

Bachawat J. further observed that when any person is arrested, he is

deprived of his liberty, the procedure laid down in Clause (1) of Article 22

must then be followed, and he must be allowed the right to be defended by

counsel of his choice. There is no reason to limit this right to a trial in which

he may be sentenced to death or to a term of imprisonment. There is no reason

to deny this right to him in a trial in which he is in jeopardy of being convicted

and sentenced to a heavy fine. The clear words of Article 22 furnish no basis

for this limitation.

It was suggested that the right of defence by counsel given by Article

22 (1) does not extend to a trial of an offence before the Nyaya Panchayat

because the Madhya Bharat Panchayat Act, 1949 does not authorise any arrest

and as a matter of fact, the respondents were arrested by the police in the

exercise of its powers under S. 54 of Cr. P.C. It was also suggested that the

trial of an offence before the Nyaya Panchayat is akin to an action for

recovery of money and as an arrested person has no constitutional right to be

defended by counsel in the action for recovery of money, so he has no such

right to counsel before the Nyaya Panchayat. Bachawat J. did not accept this

line of reasoning. He held that the right attaching to them on their arrest

continued though they were not under detention at the time of the trial. The

right was not lost because they were released on bail. He observed that most

of the safeguards embodied in Clauses (1) and (2) of Article 22 are to be

83

found in the Code of Criminal procedure. But the Constitution makes the

fundamental change that the rights guaranteed by Clauses (1) and (2) of

Article 22 are no longer at the mercy of the legislature. Bachawat J. (with him

Shelat J.) held S. 63 of the Act violative of Article 22 (1) and so void.

Hidaytullah J. agreed with Bachawat J. on this point and observed that

when our Constitution lays down in absolute terms a right to be defended by

one's own counsel, it cannot be taken away by ordinary law and it is not

sufficient to say that the accused who was so deprived of this right, did not

stand in danger of losing his personal liberty. If he was exposed to penalty, he

had a right to be defended by counsel. If this were not so then instead of

providing for punishment of imprisonment, penal laws might provide for

unlimited fines and it would be easy to leave the man free but a pauper. And

to this end without a right to be defended by counsel. If this proposition were

accepted as true we might be in the Middle Ages. The Criminal Procedure

Code allows the right to be defended by counsel but that is not a guaranteed

right. The framers of the Constitution have well-thought of this right and by

including the prescription in the Constitution have put it beyond the power of

any authority to alter it without the Constitution being altered. There are three

rights and each stands by itself. The first is the right to be told the reason of

the arrest as soon as an arrest is made, the second is the right to be produced

before a Magistrate within twenty-four hours and the third is the right to be

defended by a lawyer of one's choice. This is, of course so while the arrest

continues but there are no words to show that the right is lost no sooner than

he is released on bail. The word defended clearly includes the exercise of the

right so long as the effect of the arrest continues. Before his release on bail the

person defends himself against his arrest and the charge for which he is

arrested and after his release on bail against the charge he is to answer and for

answering which, the bail requires him to remain present. The narrow

meaning of the word 'defended' that the person who is arrested has a right to

84

consult a legal practitioner of his choice and to take his aid only to get out of

the arrest, cannot be accepted. In addition there is the declaration that no

person shall be deprived of his personal liberty except by procedure

established by law. The declaration is general and insists on legality of the

action. The rights given by Article 22 (1) and (2) are absolute in themselves

and do not depend on other laws. There is no force in the submission that if

there is only a punishment of fine and there is no danger to personal liberty the

protection of Article 22 (1) is not available. Personal liberty is invaded by

arrest and continues to be restrained during the period a person is on bail and

it matters not whether there is or is not a possibility of imprisonment. A

person arrested and put on his defence against a criminal charge, which may

result in penalty, is entitled to the right to defend himself with the aid of

counsel and any law that takes away this right offends against the

Constitution. Therefore, S. 63 of the Panchayat Act being inconsistent with

Article 22 (1) became void on the inauguration of the Constitution in so far as

it took away the right of an arrested person to be defended by a legal

practitioner of his choice.

Sarkar C.J. (with him J.R. Mudholkar J.) took a contrary view on the

point of validity of S. 63. He observed that a person arrested has the

constitutional right to consult a legal practitioner concerning his arrest. Such

person has the Constitutional right to be defended by a legal practitioner. This

right to be defended by a legal practitioner would include a right to take steps

through a legal practitioner for his release from the arrest. S. 63 of the Act

puts no ban on either of these rights. The Act is not concerned with arrest. The

right to be defended by a legal practitioner is conferred not only on a person

arrested. The right to be defended by a legal practitioner extends also to a case

of defence in a trial which may result in the loss of personal liberty. On the

other hand, where a person is subjected to a trial under a law which does not

provide for an order resulting in the loss of his personal liberty, he is not

85

entitled to the Constitutional right to defend himself at the trial by a legal

practitioner. The reason is that Articles 21 and 22 are concerned only with

giving protection to personal liberty. That is strongly indicated by the

language used in these Articles and by the context in which they occur in the

Constitution. It would follow that the requirement laid down in Article 22 (1)

is not a constitutional necessity in any enactment which does not affect life or

personal liberty. The Act expressly provides that the Nyaya Panchayat cannot

inflict a sentence of imprisonment, not even one in default of payment of fine.

The Act does not give any power of arrest. For such a law, the procedural

requirement in Article 22 (1) is not a constitutional necessity. The Act does

not violate Article 22(1) and cannot be held to be invalid on that ground. In

this case the respondents though had been arrested, they had been arrested not

under the Act but under S. 54 (1) of the Cr. P.C. 1898, the offence being

cognizable. The fact that the respondents were arrested under another law and

thereafter tried under the Act cannot give them the constitutional right to be

defended at the trial by a legal practitioner. It cannot be said that the fact of

arrest gives the arrested person the constitutional right to defend himself in all

actions brought against him. The Constitution makers did not intend that the

person arrested would have the right to be defended by a legal practitioner at a

trial which would not result in the deprivation of his personal liberty. He, of

course, had the right to seek relief against the arrest through a legal

practitioner. So S. 63 and the Act are valid.

This is the only case where the Supreme Court had an opportunity to

strike down a provision in law barring appearance of lawyer. Though majority

decision seems to be correct on superficial examination, the rationale adopted

by the minority judges and the cogent reasons given by them in holding the

person arrested would not have the right to be defended by a legal practitioner

at a trial which would not result in the deprivation of his personal liberty are

more convincing.

86

3.6 RIGHT TO BE PRODUCED BEFORE A MAGISTRATE :

Whether the Abducted Persons (Recovery and Restoration) Act 65 of

1949 violates Article 22 and whether the recovery of a person as an abducted

person and the delivery of such person to the nearest camp can be said to be

arrest and detention within the meaning of Article 22 (1) and (2) was the

question elaborately dealt with by the Supreme Court in State of Punjab v.

Ajaib Singh14

. This appeal arose out of a habeas corpus petition filed by one

Ajaib Singh in the High Court of Punjab for the production and release of one

Sardaran alias Mukhtiar Kaur, a girl of about 12 years of age. The material

facts were : The petitioner Ajaib Singh had three abducted persons in his

possession. The recovery police of Ferozpore, on 22-6-1951 raided his house

and took the girl into custody and delivered her to the custody of the Officer in

charge of the Muslim Transit Camp at Ferozpore from whence she was later

transferred to and lodged in the Recovered Muslim Womens Camp in

Jullundhur City. The girl was a Muslim abducted by the petitioner during the

riots of 1947 and was, therefore, an abducted person as defined in S. 2 (1) (a),

Abducted Persons (Recovery and Restoration) Act 65 of 1949. The Police

Officers recommended in their report that she should be sent to Pakistan for

restoration to her next of kin.

Serious riots broke-up in India and Pakistan in the wake of partition of

August 1947 resulting in a colossal mass exodus of Muslims from India to

Pakistan and of Hindu and Sikhs from Pakistan to India. There were heart

rending tales of abduction of women and children on both sides of the border.

On 11-11-1948 an Inter-Dominion Agreement between India and Pakistan

was arrived at for the recovery of abducted persons on both sides of the

border. To implement that agreement Act 65 of 1949 was passed.

The expression abducted person is defined by S. 2 (1) (a) as meaning

:

A male child under the age of sixteen years or a female of whatever

age who is or immediately before 1-3-1947, was a Muslim and who, on or

after that day and before 1-1-1949 has become separated from his or her

family, and in the latter case includes a child born to any such female after

the said date.

87

Section 4 of the Act, which is important, provides that if any police

officer, not below the rank of an Assistant Sub-Inspector or any other police

officer specially authorised by the state Government in that behalf, has reason

to believe that an abducted person resides or is to be found in any place, he

may, after recording the reasons for his belief, without warrant, enter and take

into custody any person found therein who, in his opinion, is an abducted

person, and deliver or cause such person to be delivered to the custody of the

officer in charge of the nearest camp with the least possible delay.

The Supreme Court held that the Act did not offend against the

provisions of Article 22 of the Constitution.

The Constitution commands that every person arrested and detained in

custody shall be produced before the nearest Magistrate within 24 hours

excluding the time requisite for the journey from the place of arrest to the

Court of the Magistrate, but S. 4 of the Act requires the police officer who

takes the abducted person into custody to deliver such person to the custody of

the officer in charge of the nearest camp for the reception and detention of

abducted persons. The absence from the Act of the salutary provisions to be

found in Article 22 (1) and (2) as to the right of the arrested person to be

informed of the grounds of such arrest and to consult and to be defended by a

legal practitioner of his choice is also significant.

The sole point for the consideration of the Court was whether the

taking into custody of an abducted person by a police officer under S. 4 of the

Act and the delivery of such person by him into the custody of the officer in

charge of the nearest camp can be regarded as arrest and detention within the

meaning of Article 22(1) and (2).

88

Advocate for the respondent brought to the notice of the Court various

definitions of the word arrest given in several and well-known law

dictionaries and urged in the light of such definitions that any physical

restraint imposed upon a person must result in the loss of his personal liberty

and must accordingly amount to his arrest. It is wholly immaterial why or with

what purpose such arrest is made. The mere imposition of physical restraint,

irrespective of its reason is arrest and as such, attracts the application of the

constitutional safeguards guaranteed by Article 22 (1) and (2).

The Court observed that the result of placing such a wide definition on

the term 'arrest' occurring in Article 22 (1) and (2) will render many

enactments unconstitutional, for example the arrest of a defendant before

judgment under the provisions of O. 38, R. 1, C.P.C. or the arrest of a

judgment debtor in execution of a decree under S. 55 of the Code will, on this

hypothesis, be unconstitutional inasmuch as the Code provides for the

production of the arrested person, not before a Magistrate but before the Civil

Court which made the order. If two constructions are possible, then the Court

must adopt that which will ensure smooth and harmonious working of the

Constitution and eschew the other which will lead to absurdity or give rise to

practical inconvenience or make well established provisions of existing law

nugatory.

The Court further observed that broadly speaking, arrests may be

classified into two categories, namely, arrests under warrants issued by a

Court and arrests otherwise than under such warrants. The warrant quite

clearly has to state that the person to be arrested stands charged with a certain

offence. The warrant ex facie sets out the reason for the arrest, namely, that

the person to be arrested has committed or is suspected to have committed or

is likely to commit some offence. In short, the warrant contains a clear

accusation against the person to be arrested. Section 80 (now S.75) of Cr.P.C.

89

requires that the police officer or other person executing a warrant must notify

the substance thereof to the person to be arrested, and, if so required, shall

show him the warrant. It is thus abundantly clear that the person to be arrested

is informed of the grounds for his arrest before he is actually arrested. Apart

from the Code of Criminal Procedure, there are other statutes which provide

for arrest in execution of a warrant issued by a Court. For example O. 38, R. 1,

C.P.C. authorises the court to issue a warrant for the arrest of a defendant

before judgment in certain circumstances. The Court may under S. 55 read

with O. 21, R 38 issue a warrant for the arrest of the judgment-debtor in

execution of the decree. The point to be noted is that, as in the case of warrant

of arrest issued by a Court under the Code of Criminal Procedure, a warrant of

arrest issued by a Court under the Code of Civil Procedure quite plainly

discloses the reason for the arrest and the person to be arrested is made

acquainted with the reasons for his arrest before he is actually arrested.

The Court pointed out that several sections in Chapter 5, Criminal

Procedure Code deal with arrests otherwise than under warrants issued by a

Court under that Code. Section 54 (now S. 41) sets out nine several

circumstances in which a police officer may, without an order from a

Magistrate and without a warrant arrest a person. Sections 55, 57, 151 and 401

(3) (now Ss. 41, 42, 151, 432) confer similar powers on police officers. S. 59

(now S. 43) authorises even a private person to arrest any person who in his

view commits a non-bailable and cognizable offence or any proclaimed

offender. A perusal of the sections referred to above makes it plain that the

reason in each case of arrest without a warrant is that the person arrested is

accused of having committed or reasonably suspected to have committed or of

being about to commit or of being likely to commit some offence or

misconduct. It is also to be noted that there is no provision, except in S. 56

(now S. 55) for acquainting the person to be arrested without warrant with the

90

grounds for his arrest. S. 69 and S. 61 (now Ss. 56 & 57) prescribe the

procedure to be followed after a person is arrested without warrant.

S. 61 (now S. 57) reads as under :

Apart from the Code of Criminal Procedure, there are other statutes

which authorise the arrest of a person without a warrant issued by any Court.

For example Ss. 173 and 174 of Sea Customs Act (8 of 1878) and S. 64 of

Forest Act (16 of 1927). In both cases, the reason for the arrest is that the

arrested person is reasonably suspected to have been guilty of an offence

under the Act and there is provision in both cases for the immediate

production of the arrested person before a Magistrate. As in the cases of arrest

without warrant under the Code of Criminal Procedure, an arrest without

warrant under these Acts also proceeds upon an accusation that the person

arrested is reasonably suspected of having committed an offence.

While considering whether the protection of Article 22 (1) and (2)

extends to both categories of arrests, the Court came to the conclusion that

arrests without warrants issued by a Court call for greater protection than do

arrests under such warrants. The provision that the arrested person should

within 24 hours be produced before the nearest magistrate is particularly

desirable in the case of arrest otherwise than under a warrant issued by the

Court, for it ensures the immediate application of a judicial mind to the legal

authority of the person making the arrest and the regularity of the procedure

adopted by him. In the case of arrest under a warrant issued by a Court, the

judicial mind had already been applied to the case when the warrant was

issued and, therefore, there is less reason for making such production in that

case a matter of a substantive fundamental right. It is also perfectly plain that

No police officer shall detain in custody a person arrested without

warrant for a longer period than under all the circumstances of the case is

reasonable, and such period shall not, in the absence of a special order of a

Magistrate under S. 167, exceed twenty-four hours, exclusive of the time

necessary for the journey from the place of arrest to the Magistrate's Court.

91

the language of Article 22 (2) has been practically copied from Ss. 60 and 61

(now Ss. 56 & 57) Cr.P.C. which admittedly prescribe the procedure to be

followed after a person has been arrested without a warrant. The requirement

of Article 22 (1) that no person who is arrested shall be detained in custody

without being informed, as soon as may be, of the grounds for such arrest

indicates that the clause really contemplates an arrest without a warrant of

Court, for a person arrested under a Court's warrant is made acquainted with

the grounds of his arrest before the arrest is actually effected. There can be no

doubt that the right to consult a legal practitioner of his choice is to enable the

arrested person to be advised about the legality or sufficiency of the grounds

for his arrest. The right of the arrested person to be defended by a legal

practitioner of his choice postulates that there is an accusation against him

against which he has to be defended. The language of Article 22 (1) and (2)

indicates that the fundamental right conferred by it gives protection against

such arrests as are effected otherwise than under a warrant issued by a Court

on the allegation or accusation that the arrested person has, or is suspected to

have committed, or is about or likely to commit an act of a criminal or quasi-

criminal nature or some activity prejudicial to the public or the State interest.

In other words, there is indication in the language of Article 22 (1) and (2) that

it was designed to give protection against the act of the executive or other non-

judicial authority.

As to the validity of S. 4 of the impugned Act, the Supreme Court

finally observed that whatever else may come within the purview of Article 22

(1) and (2), the Court was satisfied that the physical restraint put upon an

abducted person in the process of recovering and taking that person into

custody without any allegation or accusation of any actual or suspected or

apprehended commission by that person of any offence of a criminal or quasi-

criminal nature or of any act prejudicial to the State or public interest and

delivery of that person to the custody of the officer in charge of the nearest

92

camp under S. 4 of the impugned Act cannot be regarded as arrest and

detention within the meaning of Article 22 (1) and (2).

The pronouncement that the protection under Article 22 (1) and (2)

does not extend to arrest under warrant is in the nature of an obiter dicta. It is

a salutary practice of final tribunals like the Supreme Court not to decide more

than is necessary in constitutional cases. The decision of the Court that arrest

in Article 22 (1) and (2) refers to arrest upon an allegation or accusation of a

criminal or quasi-criminal nature was sufficient to dispose of the case before

the Court. Whether such arrest must be one under warrant or without warrant

was a question which was not necessary to be decided for the purpose of the

disposal of the case. The statement of the Court that Article 22 (1) and (2)

reproduces the language of sections 60 and 61 (now Ss. 56 and 57) of the

Criminal Procedure Code is not correct because Cr.P.C. provisions

specifically refer to arrest without warrant; Article 22 (1) and (2) used the

word arrested without any qualification and without referring to warrant at

all. Merely because in the existing statutory law, the protection is confined to

arrests without warrant, it cannot be inferred that the framers of the

Constitution did not intend to give this protection to arrests under warrant

also. The Court relied upon the argument that the object of production before a

Magistrate is to ensure the application of a judicial mind to the legal authority

and regularity of the arrest; in the case of arrest under warrant, there has

already been such application of a judicial mind at the time of issuing the

warrant. This argument is not convincing because in such case judicial mind is

applied ex parte and without hearing the person arrested. The argument is

oblivious of the fact that the right to consult and be defended by a legal

practitioner is a distinct right ensured by clause (1) of Article 22. If it is held

that clause (1) does not extend to arrests under warrant, the arrested person

shall have no constitutional right to consult or to be defended by a lawyer.15

This would be absurd.

93

In Gunupati Keshavram v. Nafisul Hasan16

there was a petition under

Article 32 of the Constitution complaining that one Shri Homi Dinshaw

Mistry was under illegal detention and praying that he be released forthwith.

The petition alleged that Shri Mistry was arrested in Bombay and taken in

custody to Lucknow to be produced before the Speaker of the Uttar Pradesh

Legislative Assembly to answer a charge of breach of privilege. It was further

alleged that Shri Mistry was not produced before a Magistrate within twenty-

four hours of his arrest; but was kept in detention in the Speaker's custody at

Lucknow even till the time of petition. The Supreme Court held this as a clear

breach of the provisions of Article 22 (2) of the Constitution which requires

that no such person shall be detained in custody beyond the said period

without the authority of a Magistrate. The Court directed that Shri Mistry be

released forthwith. It is submitted that Gunupati's case is wrongly decided.

Though the person was arrested in pursuance of an order of the Speaker of a

Legislative Assembly on a charge of breach of privilege, the implications

thereof were not fully considered. Upon a literal application of Article 22 (2) it

was held that since the arrested person was not produced before a Magistrate,

the person must be released. It is doubtful how far the Magistrate before

whom such an arrested person is produced can examine the validity of the

Speaker's order. There was no discussion about the merits of the contention

raised on behalf of Mr. Mistry. Advocate did not advance any argument to

support the contention that privilege superseded fundamental right. It was

strange that the point was not discussed in the judgment and no reason in

support of the view was stated.

In M.S.M. Sharma v. Sri Krishna Sinha17

, it was held by majority that

Article 19 (1) (a) and Article 194 (3) (dealing with privileges of the Houses of

the State Legislatures) have to be reconciled and the only way of reconciling

the same is to read Article 19 (1) (a) as subject to the latter part of Article 194

(3). The provisions of Article 19 (1) (a) which are general, must yield to

94

Article 194 (1) and the latter part of its clause (3) which are special. The

Supreme Court did not follow Gunupati's case so far as it gave primacy to the

fundamental right under Article 22 (2) over the privilege of the State

Legislature. The Supreme Court did not accept the argument that the

observations in Gunupati's case clearly establish that Article 194 (3) is subject

to the fundamental rights. The Court observed that the decision in Gunupati's

case proceeded entirely on a concession of counsel and cannot be regarded as

a considered opinion on the subject. It is curious that Das J. who was the

member of the Bench which decided Gunupati's case, delivered the judgment

of the majority in M.S.M.Sharma's case which did not follow Gunupati's case.

In In Re under Article 143 of Constitution of India18

popularly known

as Keshav Singh's case, the Supreme Court pointed out that the decision in

Gunupati's case dealt with the applicability of Article 22 (2) to a case falling

under the latter part of Article 194 (3) and the majority decision in M.S.M.

Sharma's case had incidentally commented on the decision in Gunupati's case.

It is also important to note that there was no controversy about the

applicability of Article 22 in M.S.M. Sharma's case. So it was not necessary

for the majority decision to deal with the point pertaining to the applicability

of Article 22 (2). In Keshav Singh's case the Supreme Court observed that the

obiter observations made in the majority judgment in M.S.M. Sharma's case

about the validity or correctness of the earlier decision in Gunupati's case

should not be taken as having decided the point in question. In other words,

the question as to whether Article 22 (2) would apply to such a case may have

to be considered by the Supreme Court if and when it becomes necessary to do

so.

The contention of the petitioner in the case of Purshottam v.

B.M.Desai19

was that S. 46 (2) of the Income Tax Act under which Income

Tax Officer issues the recovery certificate to the Additional Collector of

95

Bombay is void under Article 13 (1) in that the same offends Article 22 (1)

and (2). The objection that S. 46 (2) contravenes the fundamental rights

guaranteed by clauses (1) and (2) of Article 22, in view of decision of this

Court in the State of Punjab v. Ajaib Singh was not pressed. It was held that it

is a fallacy to regard arrest and detention of a defaulter who fails to pay

income-tax as a punishment or penalty for an offence. It is a coercive process

for recovery of public demand by putting pressure on the defaulter. The

defaulter can get himself released by paying up the dues.

In the case of Collector of Malabar v. E.Ebrahim20

the facts were as

follows : The respondent had been arrested in pursuance of a warrant issued

by the Collector of Malabar under S. 48, Madras Revenue Recovery Act,

1864. S. 46 (2) of the Income Tax Act, 1922 read with S. 48 of Madras

Revenue Recovery Act, 1864 did not afford opportunity to the arrested person

to appear before the Collector by himself or through a legal practitioner of his

choice and to urge before him any defence open to him and it did not provide

for the production of the arrested person within 24 hours before a Magistrate

as required by Article 22 (2). On behalf of the respondent it was contended

that these sections of the Act and the Indian Income Tax Act did offend, inter

alia, Article 22 of the Constitution. In this case, the arrest was not in

connection with any allegation or accusation of any actual or suspected or

apprehended commission of any offence of a criminal or quasi-criminal

nature. It was really an arrest for a civil debt in the process or the mode

prescribed by law for recovery of arrears of land revenue. Relying on Ajaib

Singh's case and Purshottam's case the court held that neither S. 48 of the

Madras Act nor S. 46 (2) of the Indian Income Tax Act violates Articles 14,

19, 21 and 22 of the Constitution. The Court further observed that these

sections clearly set out the mode of recovery of arrears of revenue, that is to

say, either by the sale of the movable or immovable property of the defaulter,

or by execution against his person i.e. by arrest and imprisonment of the

96

defaulter. The arrest of the defaulter is one of the modes, by which the arrears

of revenue can be recovered. Here the arrest is not by way of punishment for

mere default. Therefore, that where an arrest is made under S. 48 after

complying with its provisions, the arrest is not for any offence committed or a

punishment for defaulting in any payment. The mode of arrest is no more than

a mode for recovery of the amount due.

The provision for production of an arrested man before a magistrate is

not to be treated as a mere formality but as purposeful and designed to enable

the person arrested to be released on bail or other provision made for his

proper custody, pending investigation into the offences with which he is

charged pending an inquiry or trial. In State of U.P. v. Abdul Samad21

involving arrest and deportation of a person, it was held that it was not

necessary to produce such a person before the magistrate if he was produced

before the High Court.

In In re Madhu Limaye22

the facts were : Madhu Limaye and others

were arrested and a case was instituted against them. It was claimed that

Madhu Limaye and others had committed offences under S. 188 and S. 143,

Penal Code (which is cognizable) by violating the orders made under S. 144,

Cr. P.C. and by forming unlawful assembly. They were produced before the

Sub-Divisional Magistrate, who remanded them to jail custody as they refused

to furnish bail-bonds. One of the contentions raised by Madhu Limaye was

that the orders for remand were bad and vitiated. The Supreme Court observed

that clause (2) of Article 22 provides the most material safeguard that the

arrested person must be produced before a Magistrate within 24 hours of his

arrest, so that an independent authority exercising judicial powers may

without delay apply its mind to his case. The Criminal Procedure Code

contains analogous provisions in Section 60 (now S. 56) but our Constitution

makers were anxious to make these safeguards an integral part of fundamental

97

rights. Once it is shown that the arrests made by the police officers were

illegal it was necessary for the State to establish that at the stage of remand the

Magistrate directed detention in jail custody after applying his mind to all

relevant matters. This the state had failed to do. The remand orders are

patently routine and appear to have been made mechanically.

When police though obtained remand of arrested person without

producing him before magistrate within requisite period, it was held that there

was gross violation of his rights under Article 21 and 22 (2). In Bhim Singh v.

State of J. & K.23

the Court observed that when a person is imprisoned with

mischievous or malicious intent and that his constitutional and legal rights

were invaded, the mischief or malice and the invasion may not be washed

away or wished away by his being set free. In appropriate cases the Court has

the jurisdiction to compensate the victim by awarding suitable monetary

compensation. In this case a member of the Legislature Assembly was arrested

while en route to seat of Assembly and in consequence, the member was

deprived of his constitutional rights to attend the Assembly Session. The Court

held that responsibility for arrest lay with higher echelons of the Government

and it was fit case for compensating the victim by awarding compensation.

Compensation of Rs. 50,000/- was awarded.

98

REFERENCES

1. A.I.R. 1969 S.C. 1014. 2. A.I.R. 1951 S.C. 217. 3. 287 U.S. 45. 4. A.I.R. 1965 S.C. 247. 5. A.I.R. 1978 S.C. 1025. 6. (1966) 384 U.S. 436. 7. A.I.R. 1994 S.C. 1349. 8. A.I.R. 1997 S.C. 610. 9. A.I.R. 1978 S.C. 1548. 10. A.I.R. 1979 S.C. 1377. 11. A.I.R. 1983 S.C. 624. 12. A.I.R. 1966 S.C. 1910. 13. A.I.R. 1953 S.C. 10. 14. Ibid. 15. D.D. Basu, Commentary on the Constitution of India, Vol. D at 168-169

(7th ed.).

16. A.I.R. 1954 S.C. 636. 17. A.I.R. 1959 S.C. 395. 18. A.I.R. 1965 S.C. 745. 19. A.I.R. 1956 S.C. 20. 20. A.I.R. 1957 S.C. 688. 21. A.I.R. 1962 S.C. 1506. 22. A.I.R. 1969 S.C. 1014. 23. A.I.R. 1986 S.C. 494.