Abstract:
This article critiques Article 22 of the Constitution of India related to arrest and preventive detention, in the context of the recent Supreme Court decision in the ‘Sri Darshan’. The decision re-affirms the principle that the written ground of arrest must be provided to the accused now of arrest, striking a balance between the powers of the State to maintain law and order, and the right to personal liberty formed under Article 21 and Article 22. The aridity of Article 22(1) to Section 47 of Bharatiya Nagarik Suraksha Sanhita (BNSS) reaffirms the constitutional guarantees within the statutory process. In evaluating the jurisprudence of arrest and detention, this appraisal situates this process in relation to the larger process of rule of law, compares them with global standards, and contends the Supreme Court has enhanced protections of individuals against arbitrary arrest whilst permitting the State to implement necessary preventative functions.
Introduction:
The theme of rights of individuals and powers of the State to maintain law and order, has often been a critical element in Indian constitutional jurisprudence. Article 22, arguably the most hotly contested provision of the Constitution, provides protection from arbitrary arrest whilst also allowing certain circumstances of preventive detention. The dual nature of this Article has always raised questions about balancing citizen’s liberty and State security and order. The Supreme Court’s decision in Sri Darshan v. State of Karnataka SLP (Crl.) Nos. 516 – 522 of 2025, has certainly reinvigorated the question of whether there is a necessity to have written grounds for arrest. The Court underlined the principle that liberty can only be restricted lawfully and in an orderly fashion by considering Section 47 of the BNSS, and the notion of Article 22(1) in for guidance. This article devotes considerable reflection on the jurisprudence of arrest and detention limited to Article 22, and in particular, the Sri Darshan decision as a watershed moment in the rule of law.
Keywords:
Article 22, Rule of Law, Arrest, Detention, BNSS, Sri Darshan case, Preventive Detention, Personal Liberty
Constitutional Framework: Article 22(1) and Personal Liberty
Article 22 was intended as a constitutional protection against arrest made arbitrarily but allowed the State a limited power of preventive detention. Article 22(1) expressly provides that no person who is arrested shall be denied the right to be informed, as soon as may be, of the grounds for arrest, and the right to consult and be defended by a legal practitioner of his or her choice. This protection is consistent with the overall project of Article 21 that no person shall be deprived of life or personal liberty except according to procedure established by law as held in Maneka Gandhi v. Union of India, 1978 AIR 597. The procedural protection of having the accused informed of the reasons for the arrest makes up the foundation for rules of natural justice and fair trial as observed in Joginder Kumar v. State of U.P., (1994) 4 SCC 260.
BNSS and Section 47: Written Grounds of Arrest
The Bharatiya Nagarik Suraksha Sanhita (BNSS), which replaces the Code of Criminal Procedure, also has provisions that provide for alignment of the criminal process with the Constitutionally guaranteed rights. Section 47 requires written grounds of arrest to be provided to the accused. The statutory innovation from oral communication to written provision is evidential clarity and accountability and mitigates the risk of occasional abuse of police officers’ discretion. By requiring written grounds, Section 47 is not only supporting stronger enforcement of Article 22(1), but it also gives recognition to compulsions demonstrated in earlier courts of law, for example, the Court’s observation in DK Basu v. State of West Bengal (1997) 1 SCC 416 of the value of procedural safeguards to avoid any abuses of power of arrest.
The Supreme Court’s Ruling in Sri Darshan’s Case
In Sri Darshan v. State of Karnataka SLP (Crl.) Nos. 516 – 522 of 2025 the Supreme Court stressed that written grounds of arrest are not a formality but instead an earnest right provided by Article 22(1). The Court also said that oral communication of grounds cannot substitute written terms as the impeding of a substantive right by failing to comply with written communication is notably different from mere omission. Written communication provides transparency, allows for effective legal consultation, and leaves a record for judicial scrutiny. The judgement is an important step in reconciling Section 47 of the BNSS, with constitutional provisions, and deadlocks and continues the jurisprudential line of cases such as Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565, where the Court placed emphasis on individual liberty, and Pankaj Bansal v. Union of India (2023) SCC OnLine SC 1244, where the Court highlighted the necessity of submitting written grounds in economic offences
Critical Appraisal of Arrest and Detention Jurisprudence
The evolution of Indian jurisprudence on matters related to arrest and detention has been largely the function of a series of judicial responses ordering changes to the law broadly with a view to expand the procedural protections involved. For the first couple of years after the Constitution commenced, a tense compromise between possibility and necessary safeguards existed, with preventive detention laws such as the Preventive Detention Act, 1950, prevailed upon scrutiny and public criticism. Eventually, courts began to recognize that checks should be placed on executive discretion. In Maneka Gandhi, the Supreme Court construed Article 21 broadly, making adherence to procedural fairness a requirement of any process of law. Similarly, in Joginder Kumar, the Court reiterated that arrests must happen sparingly and only otherwise upon necessity and not just for the sake of acting. The Sri Darshan case introduced a novel angle to the case but also uplifted the grounded writing of the reasons for the arrest from statute to constitutional requirement.
Nonetheless, preventive detention under Articles 22(3) – (7) still suffers from limitations. Although a person could not be kept in detention without trial for a prolonged period subject only to the scrutiny of an advisory board and the authority of the Chief Minister, it nonetheless raises questions of proportionality. The Court struggled to strike a balance between individual freedom and national security, for instance, in A.K Gopalan v. State of Madras 1950 SCR 88, a ruling where it upheld preventive detention, and later in ADM Jabalpur v. Shivkant Shukla (1976) 2 SCC 521 wherein fundamental rights were omitted from the Constitution during a time of Emergency. Although ADM Jabalpur was later overruled, its shadow will serve to remind us of the dangers of unchecked executive power.
Comparative Perspective: International Safeguards
A review of comparative studies has demonstrated that international legal standards have more rigorous safeguards than those that have been embedded in Indian Law. Article 9 of the International Covenant on Civil and Political Rights (ICCPR) requires that everyone who is arrested must be told promptly the reasons for the arrest and the details of the charge. The European Court of Human Rights has decided in cases such Fox, Campbell and Hartley v. UK (1990), that there should be more than mere suspicion, it is necessary to provide specific reasons. India, however, cannot, especially given the long history of preventive detention powers, so while Indian Law in some sense does have a level of gain from and relationship with international standards, through judicial review, it given Indian Law’s sanction of broad preventive detention powers there is little softening that standard which is captured in the ruling from Sri Darshan. The ruling further arguably pulls Indian Law towards the standards of the substantive democratic world in requiring “written, specific grounds” of arrest, or a reason, as safeguard against arbitrary action.
Balancing State Interests and Individual Liberty
The jurisprudence pertaining to arrest and detention must achieve the difficult balancing act between government considerations to maintain law and order with individual considerations to liberty and dignity. The government needs outfits to effectively prosecute and suppress crime; however, the arbitrary deployment of those outfits undermines trust and legitimacy in the legal system. The Sri Darshan case demonstrates how courts can control and shape the balancing act as follows: by hard ending procedural safeguards such as non-renegotiable written grounds, the Court established that the rule of law cannot be dispensed with in the name of security. This balancing act follows this broader lesson that the Constitution does not permit the State to exchange liberty for its own convenience.
Conclusion:
Article 22 serves as both a sword and shield within the constitutional paradigm: a shield protecting against arbitrary arrest; and a sword allowing the state limited use of preventive detention. The Supreme Court’s ruling in the Sri Darshan case has further solidified the protective features of Article 22 by enforcing written reasons for all arrests, both under constitutional and statutory law. The requirement for written reasons will advance transparency, strengthen access to remedies and bring Indian jurisprudence closer to international standards. However, the preventive detention powers which remain with Article 22 are a space which is still mired in contention which will require vigilance from the judiciary. Ultimately the Sri Darshan judgement contends the rule of law flourishes best when procedural fairness is not treated solely as a technicality but rather the essence of liberty.
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Written by- Anwesha Anant
