3.1 INTRODUCTION : First two clauses of Article 22 read as follows :

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1 CHAPTER - 3 RIGHTS OF ARRESTED PERSON UNDER ARTICLE 22(1) & (2) 3.1 INTRODUCTION : First two clauses of Article 22 read as follows : 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. 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 ii) iii) iv) arrest. Right to consult and to be defended by a legal practitioner of his choice. 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. Right not to be detained in custody beyond the period of twentyfour 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.

2 61 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 Limaye 1 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 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

3 62 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 Hyderabad 2 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.

4 63 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 : 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. 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. Alabama 3, in which the Supreme Court of America observed as : 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. 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

5 64 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, That Section is in these terms :

6 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 India 4 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 counteraffidavits 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

7 66 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. Dani 5 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

8 67 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 decision 6 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

9 68 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.

10 69 (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 : 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... 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,

11 70 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

12 71 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

13 72 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

14 73 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 overactivism 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

15 74 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 selfrestraint 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 Maharashtra 9 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

16 75 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.