Article 22 — Protection Against Arrest and Detention

Article 22 closes the personal-liberty cluster of Part III. It picks up where Article 21 leaves off: once a person has been deprived of liberty by a procedure established by law, Article 22 prescribes the minimum procedural floor that the arrest or detention must meet. The provision is two-faced. Clauses (1) and (2) deal with what the courts call punitive arrest — arrests made on the accusation that the person has committed, or is about to commit, an offence. Clauses (3) to (7) deal with preventive detention — confinement without trial, on the strength of a prognosis about future conduct. The two halves are connected by Clause (3), which expressly switches off Clauses (1) and (2) for enemy aliens and for persons held under any preventive-detention law.

The architecture is deliberate. The Constituent Assembly accepted the necessity of preventive detention for an infant Republic threatened by communal violence and subversion, but tried to fence the power with constitutional safeguards rather than leave it entirely to Parliament. The earlier Government of India Acts and the constituent-assembly debates reveal how the framers settled on this hybrid model after considerable disagreement. The result is the only entry in any modern bill of rights that simultaneously authorises and regulates detention without trial.

Text and architecture of Article 22

The article runs to seven clauses. Clause (1) gives every arrested person the right to be informed of the grounds of arrest and the right to consult and be defended by a legal practitioner of choice. Clause (2) requires production before the nearest magistrate within twenty-four hours of arrest, excluding journey time, and forbids further custody without a magistrate's authority. Clause (3) excludes enemy aliens and preventive-detention cases from the protection of Clauses (1) and (2). Clauses (4) to (7) then erect the preventive-detention regime: a three-month ceiling without an Advisory Board's clearance, a duty to communicate grounds and afford the earliest opportunity of representation, a public-interest exception to disclosure, and a parliamentary power to fix circumstances and maximum periods of detention.

The 44th Amendment Act, 1978 attempted to liberalise the preventive-detention regime — it would have cut the three-month period to two months and reconstituted the Advisory Board with three sitting or retired High Court judges. Despite the Supreme Court's unfavourable comments about the inordinate delay in A.K. Roy v. Union of India, AIR 1982 SC 710, the relevant amendments to Clauses (4) and (7) were never brought into force. The pre-amendment text remains in operation; the 1978 changes have, in the Court's own description, become a dead letter.

Punitive arrest under Clauses (1) and (2)

The Supreme Court in A.K. Gopalan v. State of Madras, 1950 SCR 88, identified four distinct rights packed into Clauses (1) and (2): the right to be informed of the grounds of arrest, the right to consult and be defended by a legal practitioner of choice, the right to be produced before a magistrate within twenty-four hours, and freedom from further detention beyond that period without a magistrate's order. These are minimum constitutional guarantees; if any one is violated, the detention is rendered illegal — a proposition reiterated in Abdul Karim v. State of West Bengal, AIR 1969 SC 1028, where the Court held that the requirements of Article 22 are mandatory and that even the law of freedom under Article 19 cannot dilute them. The same standard applies to officers exercising arrest power under special statutes; in Naga People's Movement of Human Rights v. Union of India, (1998) 2 SCC 109, the Court extended the obligation to officers acting under the Armed Forces (Special Powers) Act, 1958.

The protection is not absolute in scope. In State of Punjab v. Ajaib Singh, AIR 1953 SC 10, the Court read Clauses (1) and (2) as engaged only when the arrest is by a non-judicial authority on an accusation of a criminal or quasi-criminal nature. Civil arrests — for instance, recovery of arrears of income tax under the Madras Revenue Recovery Act, considered in Collector of Malabar v. Hajee Erimmal Ebrahim, AIR 1957 SC 688 — fall outside. So does the deportation of an alien (State of U.P. v. Abdus Samad, AIR 1962 SC 1506) and the physical custody of an abducted person under recovery legislation. By contrast, the Court extended the protection to arrest under orders of the Speaker of a Legislature for contempt in Gunapati Keshavram Reddy v. Nafisul Hasan, AIR 1954 SC 636, and refused to apply it to arrests effected under the warrant of a court, where the grounds are made known before the arrest itself.

Right to be informed of the grounds of arrest

The object of this safeguard, as Madhu Limaye, Re, AIR 1969 SC 1014 explains, is to enable the arrested person to apply for bail or move the High Court for habeas corpus, and to start preparing a defence. Sufficient particulars must therefore be furnished — full details of the offence are not required, but the grounds should be "somewhat similar to the charge framed by the Court for the trial of a case" (Vimal Kishore v. State of U.P., AIR 1965 All 56). Merely informing a person that he is being arrested under a numbered section, without disclosing the alleged acts, is not compliance. The arrested person is entitled to be released forthwith if the State's return in habeas corpus does not show when and by whom he was informed of the grounds.

The phrase "as soon as may be" was construed in Tarapada De v. State of West Bengal, AIR 1951 SC 174, to mean as nearly as is reasonable in the circumstances. No fixed time-table can be laid down. But once a reasonable time has elapsed without communication, the detention becomes invalid, and a belated communication after the date of return in habeas corpus cannot revive its validity.

Right to consult and be defended by a legal practitioner

The right belongs to the person arrested from the moment of arrest, and includes the right to an effective interview with the lawyer out of the hearing of the police, even if within their presence (Moti Bai v. State, AIR 1954 Raj 241). It runs through the trial. State of M.P. v. Shobharam, AIR 1966 SC 1910 read the right widely: it covers all criminal trials, whether before ordinary courts or special tribunals, irrespective of whether the offence carries the death penalty, life imprisonment or any lesser sentence. By the same authority, a statute that prohibits the appearance of lawyers before a tribunal trying a person for an offence is void for contravention of Clause (1).

The right is to engage a lawyer; it is not, in its constitutional form, a right to be supplied with one at State expense (Janardhan Reddy v. State of Hyderabad, AIR 1951 SC 217). That gap is filled by the legal-aid jurisprudence under Article 21, including the duty cast on magistrates in Mohammad Ajmal v. State of Maharashtra, (2012) 9 SCC 1, to inform every accused person of the right to be defended by a legal practitioner and, in case of indigence, of the right to State-funded counsel. The words "of his choice", interpreted in R.D. Saxena v. Balram Prasad Sharma, (2000) 7 SCC 264, mean that a previously engaged advocate cannot frustrate the change by withholding the case bundle as security for unpaid fees. The right is violated where the trial proceeds without informing the accused of the date of hearing, where a lawyer engaged by the accused is not allowed to appear because of a court fault, or where the trial commences immediately upon court appointment of defence counsel without time for preparation (Bashira v. State of U.P., AIR 1968 SC 1313).

Production before the nearest magistrate within twenty-four hours

Clause (2) liberalises the Section 57 CrPC obligation by extending it to persons arrested under a warrant. "Nearest magistrate" was read in Hariharanand v. Jailor, AIR 1954 All 355 as a magistrate acting in a judicial capacity — under Section 167 CrPC, not in some executive remand role. If twenty-four hours pass without compliance, the arrested person is entitled to release forthwith; Manoj v. State of M.P., (1999) 3 SCC 715 confirmed that the fact that the person was simultaneously held in another State for another case is not a valid excuse. Crucially, the magistrate before whom production is made must apply a judicial mind to the legality of the arrest, not merely sign a remand order — a point underscored in Madhu Limaye, Re.

Clause (2) does not apply to custody under a judicial order (V.L. Rohlua v. Deputy Commissioner, Aijal, (1970) 2 SCC 908), nor where an initially unlawful military detention is followed by valid arrest by the civil police (Saptawna v. State of Assam, AIR 1971 SC 813), nor — by the operation of Clause (3) — to arrests under a law providing for preventive detention (Hans Muller v. Superintendent, Presidency Jail, Calcutta, AIR 1955 SC 367).

Article 22 and the rest of Part III: from Gopalan to Maneka Gandhi

Gopalan initially treated Articles 21 and 22 as a self-contained code, walled off from the other fundamental rights in Part III. That position has been overturned. After R.C. Cooper v. Union of India, AIR 1970 SC 564 and Maneka Gandhi v. Union of India, AIR 1978 SC 597, the Court treats Article 22 as one of several overlapping protections; a law of preventive detention must not only comply with Article 22 but also meet the tests of reasonableness under Article 19 and the procedural fairness implicit in Article 21. Khudiram Das v. State of West Bengal, AIR 1975 SC 550 confirmed the application of Article 14, so that a preventive-detention law must also be non-arbitrary — a point that ties Article 22 to the wider definition of "State" worked out under Article 12. Francis Coralie Mullin v. Union Territory of Delhi, AIR 1981 SC 746 extended Maneka's expanded conception of Article 21 to detention conditions: the procedure prescribed and the actual conditions of detention must be reasonable, fair and just.

That re-reading has not displaced the older view that, on points expressly dealt with by Article 22, Article 21 cannot override it. Article 22 was therefore characterised by Pankaj Kumar Chakrabarty v. State of West Bengal, AIR 1970 SC 97 as a set of limitations on the legislative power to provide for detention without trial, not a comprehensive code. The article supplies the floor; the rest of Part III supplies the ceiling.

Preventive detention: nature, purpose and source

Preventive detention is detention of a person without trial in circumstances where the evidence with the authority is not enough to make a legal charge or secure conviction by legal proof, but is enough — in the authority's subjective satisfaction — to justify confinement to prevent prejudicial activity (Sasthi Chowdhary v. State of West Bengal, AIR 1972 SC 1668). Punitive detention punishes for what was done; preventive detention prevents what might be done. As Gopalan put it, no offence is proved, no charge is formulated; the justification is suspicion or reasonable probability rather than legal evidence.

The legislative entries are Entry 9 of the Union List (preventive detention for reasons connected with defence, foreign affairs and the security of India) and Entry 3 of the Concurrent List (preventive detention for reasons connected with the security of a State, maintenance of public order or maintenance of supplies and services essential to the community). The list of central preventive-detention statutes is short. The Maintenance of Internal Security Act, 1971 (MISA) was repealed; the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) and the National Security Act, 1980 (NSA) remain. State-level statutes include the Gujarat Prevention of Anti-social Activities Act, 1985 (PASA), the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 and the Andhra Pradesh Prevention of Dangerous Activities Act, 1986. Each one borrows the constitutional architecture of Clauses (4) to (7).

In UOI v. Yumnam Anand M, (2007) 10 SCC 190, the Supreme Court described the jurisdiction as a "jurisdiction of suspicion" and warned that the laws must be strictly construed; meticulous compliance with every procedural safeguard, however technical, is mandatory. The Court returned to the same theme in State of Maharashtra v. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613, insisting on a "live link" between the past activities of the detenu and the prognosis on which the order rests.

Clause (3): exceptions to Clauses (1) and (2)

Clause (3) takes enemy aliens and preventive-detention prisoners out of the punitive-arrest regime. "Enemy alien" is a term of art that depends on the law of citizenship and nationality; once a person falls within that description, the Clause (1) and Clause (2) safeguards lapse for him by the operation of Clause (3) itself. The detenu under a preventive-detention law has no right to be produced before a magistrate within twenty-four hours, no right to consult a lawyer of choice, and no right to be defended by counsel before the Advisory Board (Devji Vallabhbhai Tandel v. Administrator of Goa, Daman and Diu, AIR 1982 SC 1029). His rights are confined to those carved out in Clauses (4) to (7), supplemented by the broader procedural fairness implicit in the right to life and personal liberty — for which the writ remedies in Article 32 and the corresponding High Court power to issue prerogative writs remain available.

Clause (4): three-month ceiling and the Advisory Board

Clause (4) prohibits detention beyond three months unless an Advisory Board, constituted of persons qualified to be High Court judges, has reported within that period that there is sufficient cause for the detention, or unless detention beyond three months is supported by a parliamentary law within Clause (7). The function of the Board is purely advisory; it reports whether the detention is justified, leaving the period to the detaining authority subject to the parliamentary maximum (Puranlal Lakhanpal v. Union of India, AIR 1958 SC 163). If the Board reports against the order, the Government must revoke the detention; if it reports in favour, the Government still retains discretion to revoke (State of Punjab v. Sukhpal Singh, AIR 1990 SC 231).

The Board must report within three months of the detention; a report received after the period cures nothing, and the detention is rendered illegal from the moment of expiry (Deb Sadhan Roy v. State of West Bengal, AIR 1972 SC 1924). Confirmation by Government is not a mental act but an objective action and must be recorded in writing. The Board's procedure need not mimic a quasi-judicial trial, but must satisfy procedural fairness; the detenu has no right to a lawyer, but if the State is allowed to be represented by one, the detenu must be given the same facility (A.K. Roy v. Union of India, AIR 1982 SC 710). The Board may also be required to permit the assistance of a non-lawyer friend.

Clause (5): communication of grounds and the right of representation

Clause (5) is the most litigated of all. It is two-fold: the authority must communicate to the detenu the grounds on which the order has been made, as soon as may be, and must afford him the earliest opportunity of making a representation against the order. The two limbs are linked. As Khudiram Das put it, the communication of grounds exists to enable the representation; without sufficient information of the facts, the representation cannot be effective.

Communication of grounds

"Communication" in Hari Kishen v. State of Maharashtra, AIR 1962 SC 911 means imparting to the detenu sufficient and effective knowledge of the facts and circumstances on which the order is based — in the nature of the charge against him. The sufficiency of the particulars is a justiciable issue; the test is whether they enable an effective representation (Shibban Lal v. State of U.P., AIR 1954 SC 179). Where one of the grounds is never communicated, where particulars are inadequate, where vital documents are illegible and legible copies are not supplied, or where the grounds are furnished in a language the detenu does not follow, the right is violated. Ramchandra A. Kamat v. Union of India, AIR 1980 SC 765 made clear that the right extends to copies of the documents referred to in the grounds; non-supply within a reasonable time renders the continued detention illegal, and the right does not depend on the detenu having to demand the documents.

A vague ground is no ground at all. In Ram Krishna Bhardwaj v. State of Delhi, AIR 1953 SC 318, the Court held that the question is not whether the petitioner is in fact prejudiced; it is whether his constitutional safeguard has been infringed. Preventive detention is a serious invasion of personal liberty, and the meagre safeguards the Constitution provides must be jealously enforced.

The right of representation

The right under Clause (5) is to make a written representation; there is no right to a personal hearing before an independent tribunal (John Martin v. State of West Bengal, AIR 1975 SC 775), and no period of limitation applies (Prem Lata Sharma v. District Magistrate, Mathura, (1998) 4 SCC 260). The representation must be considered by the detaining authority as early as possible, and any unexplained delay by jail authorities in transmitting it can vitiate the order even if the Government itself acted promptly (Alamelu B. v. State of T.N., (1995) 1 SCC 306). The right extends not just to the detaining authority but to every authority statutorily empowered to revoke the detention; in A.C. Razia v. Government of Kerala, (2004) 2 SCC 621, the Court held that the Section 11 COFEPOSA power of revocation by the Central Government has been "projected into the fabric of Article 22(5)".

Clause (6): the public-interest exception

Clause (6) permits the detaining authority to withhold facts which it considers contrary to the public interest to disclose. The carve-out is narrow. It excuses non-disclosure of facts, not of grounds; the grounds themselves — the basis of the satisfaction — must always be furnished. The Court has policed the line by asking whether what is withheld is essential to enable an effective representation. If it is, the withholding cannot be sheltered behind Clause (6).

Clause (7): parliamentary power to fix maxima and procedure

Clause (7) lets Parliament prescribe (a) circumstances in which detention beyond three months is permissible without an Advisory Board's opinion, (b) the maximum period of detention, and (c) the procedure to be followed by the Advisory Board. Parliament has used this power chiefly through the NSA and COFEPOSA, both of which fix maxima and prescribe Board procedures. The 1978 amendment to Clause (7), tied to the unimplemented amendment of Clause (4), would have curtailed the power; as noted, that amendment is a dead letter.

Judicial review of detention orders

The court's jurisdiction in habeas corpus against a preventive-detention order is well-mapped. It can examine the validity of the law on grounds of legislative competence and conformity with Article 22; it can examine whether the grounds are relevant to the statutory purpose; whether the order rests on any material at all; whether the requisite subjective satisfaction was actually reached, with due care, on relevant material; whether the formalities of Clause (5) have been observed; and whether the grounds communicated are sufficient to permit an effective representation. State of Maharashtra v. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613 reiterated that the satisfaction is subjective in nature and the court cannot substitute its objective opinion for that of the detaining authority — but the requirement of "due care and caution" is itself a constitutional check.

What the court will not do is enter the merits as if sitting in appeal, weigh the sufficiency of the materials, examine the truth of the underlying facts, or correct mere errors of law and fact. The classic statement of the proscribed grounds appears in Lakhinarayan v. Province of Bihar, (1950) SCJ 32 and in the long line of cases following Bhim Sen v. State of Punjab, AIR 1951 SC 481. Krishna Murari Aggarwala v. Union of India, AIR 1975 SC 1877 sets out the principal grounds for interference: failure to apply the mind, dictation by another authority, application of a wrong test, reliance on extraneous or non-probative material, or use of the power for an improper purpose.

Detention orders against persons already in custody have been the source of repeated failure. The general principle in T.P. Moideen Koya v. Government of Kerala, (2004) 8 SCC 106 is that there must be cogent material before the detaining authority for inferring that the detenu was likely to be released on bail; without such awareness, the order betrays non-application of mind (Vijay Kumar v. State of J&K, AIR 1982 SC 1023). And, as Rekha v. State of Tamil Nadu, (2011) 5 SCC 244 emphasised, preventive-detention law cannot be invoked merely because the ordinary criminal law would have been adequate; recourse to detention is justified only where the criminal law cannot deal with the situation. The unqualified observations in Haradhan Saha v. State of West Bengal, AIR 1974 SC 2154, that prosecution and preventive detention can run in parallel, must be read in the light of Rekha's caution.

Mala fides and unexplained delay

An order of detention is mala fide if it is made for a purpose other than that for which the legislature conferred the power — for instance, to suppress a rival political party (Ram Singh v. State of Delhi, AIR 1951 SC 270). The onus is on the detenu and is rarely discharged. The order is not mala fide merely because the underlying facts could have supported a criminal prosecution under Section 144 CrPC, nor because a single instance forms the basis of detention if the instance is not too trivial or remote. But it is mala fide if the grounds are reproduced mechanically with the disjunctive "or", or if the authority had no opportunity of considering all material facts because they were not placed before it (Ram Krishna Bhardwaj).

Unexplained delay at any stage — between the activities and the order, between the order and the arrest, or between the representation and its disposal — vitiates the order. The Court demands a counter-affidavit explaining each gap, whether or not the petitioner has alleged delay (Serajul S.K. v. State of West Bengal, AIR 1975 SC 1517). Even short, unexplained delay can be fatal (Paturkar Pradeep Nilkanth v. S. Ramamurthi, AIR 1994 SC 656).

Distinguishing punitive and preventive detention

The two halves of Article 22 differ in nearly every operative feature. Punitive arrest follows an accusation of a past offence; preventive detention rests on a prognosis about future conduct. Punitive arrest is policed by an external magistracy within twenty-four hours; preventive detention is policed by an internal Advisory Board within three months. Punitive arrest carries a right to counsel of choice; preventive detention does not. The grounds of arrest must be communicated to enable the seeking of bail and habeas corpus; the grounds of detention must be communicated to enable a written representation. Yet both are subject to the strict-construction principle and to the overarching reasonableness mandated by Maneka Gandhi. The exam-aspirant should keep the two columns separate when answering, but resist the temptation to treat them as wholly disconnected.

Article 22 in the broader constitutional scheme

Article 22 sits between the substantive personal-liberty guarantee of Article 21 of the Constitution and the protections against double jeopardy and self-incrimination in Article 20. The trio is sometimes treated as the core of the criminal-process protections in Part III. The procedural-fairness requirement that Maneka Gandhi read into Article 21 has gradually pulled Article 22 into a more demanding standard. State-funded counsel, magisterial vigilance, recorded reasons for arrest, prompt production — much of this jurisprudence supplements the bare text of Clauses (1) and (2). For the exam, candidates should pair Article 22 with the right against arbitrary state action under Article 14, and with the residuary protection against exploitation where bonded-labour or trafficking statutes intersect with arrest power. The remedy in every case is habeas corpus under Articles 32 and 226. For the chapter list and full Part III map, return to the Constitution of India notes hub. For the leading authority on procedural fairness in detention conditions, see landmark cases; for the constitutional remedies through which Article 22 is enforced, see the scheme of writ jurisdiction.

Exam angle and recurring traps

Three recurring traps. First, candidates conflate Clauses (1)-(2) with Clauses (4)-(7); the answer to a preventive-detention question is never "the detenu must be produced before a magistrate in twenty-four hours". Second, candidates treat the Advisory Board as a court; it is purely advisory, follows no fixed procedure, and need not communicate its report to the detenu. Third, candidates assume that vague grounds are saved by Clause (6); they are not, because Clause (6) protects only the non-disclosure of facts contrary to the public interest, not the use of vague or umbrella grounds in the order itself. Where two or more grounds are stated, Section 5A of the NSA and the parallel provision in COFEPOSA save the order even if one ground is vague or non-existent — but that is a statutory rescue, not a constitutional one, and the constitutional right to effective representation continues to operate independently.

Frequently asked questions

What is the difference between punitive detention and preventive detention under Article 22?

Punitive detention follows an accusation of a past offence and is governed by Clauses (1) and (2) — right to be informed of grounds, right to counsel of choice, production before the nearest magistrate within 24 hours. Preventive detention rests on a prognosis of future conduct and is governed by Clauses (4) to (7) — three-month Advisory Board ceiling, communication of grounds, and the right to make a written representation. Clause (3) expressly switches off the punitive safeguards for preventive detenus and enemy aliens, as confirmed in Hans Muller v. Superintendent, Presidency Jail, Calcutta, AIR 1955 SC 367.

Does Article 22(1) entitle every arrested person to State-funded counsel?

Not in its text. Article 22(1) guarantees the right to consult and be defended by a legal practitioner of choice; the constitutional clause itself does not impose a duty on the State to supply a lawyer (Janardhan Reddy v. State of Hyderabad, AIR 1951 SC 217). The State-funded-counsel obligation flows from the wider procedural-fairness reading of Article 21 after Maneka Gandhi. Mohammad Ajmal v. State of Maharashtra, (2012) 9 SCC 1 cast a duty on every magistrate before whom an accused is first produced to inform the accused of the right to be defended by counsel and, in case of indigence, of the right to State-funded legal aid.

Are the 44th Amendment changes to Article 22 in force?

No. Clauses (4) and (7) were amended by the Constitution (44th Amendment) Act, 1978 to reduce the three-month detention ceiling to two months and to reconstitute the Advisory Board as a body of three sitting or retired High Court judges chosen by the Chief Justice. Despite the Supreme Court's unfavourable comments in A.K. Roy v. Union of India, AIR 1982 SC 710, those amendments have never been brought into force. The pre-amendment text continues to operate, and the 1978 changes have, in the Court's own description, become a dead letter.

What does "as soon as may be" mean in Article 22(5)?

In Tarapada De v. State of West Bengal, AIR 1951 SC 174, the Supreme Court held that the phrase means as nearly as is reasonable in the circumstances of the particular case, and no fixed period applies in all cases. The court will, in habeas corpus, examine whether the grounds were communicated within a reasonable time. Once a reasonable period has elapsed without communication, the detention is invalidated from the moment of expiry, and a belated communication after the date of return cannot revive its validity (State of Bombay v. Atmaram Shridhar Vaidya, AIR 1951 SC 157).

Can the State withhold the grounds of detention under Clause (6)?

Clause (6) excuses the disclosure of facts which the authority considers contrary to the public interest to disclose; it does not excuse the communication of grounds themselves. The grounds — the basis of the subjective satisfaction — must always be furnished, and they must be sufficient to enable an effective representation. The Court polices the line by asking whether what is withheld is essential for an effective representation. If it is, Clause (6) cannot shelter the withholding. Vague, umbrella or wholly unspecific grounds are not saved by Clause (6) and will vitiate the order under the standard of Hari Kishen v. State of Maharashtra, AIR 1962 SC 911.

When can preventive detention be ordered against a person already in custody?

There is no constitutional bar, but there must be cogent material before the detaining authority for inferring that the detenu was likely to be released on bail; without such awareness reflected in the order, the detention betrays non-application of mind (T.P. Moideen Koya v. Government of Kerala, (2004) 8 SCC 106; Vijay Kumar v. State of J&K, AIR 1982 SC 1023). The principle in Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, that preventive detention cannot be a substitute for the ordinary criminal law where the ordinary law would suffice, applies with particular force to detenus already in jail.