18 Protection Against Arrest And Detention (Article 22)
Dr. Shipra Gupta
Introduction
Arrest is a legal process which takes away personal liberty otherwise recognised as a fundamental right and guaranteed as such to all persons. Article 22 provides the procedural safeguards against arbitrary arrest and detention. An arrest has serious ramifications and thus can only be made under the authority of law and in accordance with that law. In a free and civilized society an individual needs to be protected from the police atrocities and abuse so as to ensure the effective administration of criminal justice. All human beings have the right to liberty and security and it is the duty of the state to ensure the protection of these rights so as to make all other rights meaningful. Violation of these rights is however commonplace, and arrests and detention on unreasonable grounds are rife. In order to guarantee the right to security and liberty, various procedural safeguards have been incorporated in the Criminal Procedure Code, and for giving these rights a constitutional status, Art.22 embodies various other corresponding/incidental protections to make these basic rights a reality.
Learning Outcome
Under the Criminal Law there is presumption of innocence till the guilt of the accused is proved beyond reasonable doubt. Article 22 guarantees constitutional safeguards to an arrestee and a detenue under preventive detention. These protections in a way ensure prevention from miscarriage of justice and check on police atrocities. Arrest and preventive detention have the effect of curtailing right to personal liberty, hence these safeguards are very crucial. These rights cannot be curtailed otherwise than by following legal process.
Protection Against Arrest And Preventive Detention
The basis of this Article is to provide sufficient safeguard to the person to be arrested by ensuring guarantee of minimum rights provided therein in order to avoid miscarriage of justice and also curtail the powers of the Union/State Legislatures to enact laws for preventive detention subjecting them to certain constitutional limitations. Despite these statutory provisions, there is ample evidence of police oppression and abuse.
1.1 International Scenario
Violation of right to liberty and security has been considered a human rights violation. Various international legal rules governing arrest and detention have been embodied in Art. 3 of the Universal Declaration of Human Rights, 1948; Art.9(1) of the International Covenant on Civil and Political Rights, 1966; Art.6 of the African Charter on Human and Peoples‟ Rights, 1981; Art.7 (1) of the American Convention on Human Rights, 1969 and Art.5(1) of the European Convention on Human Rights, 1950. Despite these international commitments, there are a good number of persons deprived of their liberty due to arbitrary detention, who do not have access to the substantive, procedural and institutional guarantees. Such persons deprived of their liberty are frequently unable to benefit from legal resources and guarantees that they are entitled to for defending themselves as required by law in any judicial system.1
1.2 Historical Development
Draft Constitution by K.K. Munshi in its chapter on rights to freedom, had provided: “No person shall be deprived of his life, liberty or property without due process of law”.
The other provision, which in effect elucidated the “due process” clause, had guaranteed to every person the right to be informed, within twenty-four hours of his deprivation of liberty, by what authority and on what grounds the action was being taken. They had laid down further that no person would be subjected to prolonged detention preceding trial, to excessive bail or unreasonable refusal of bail, to inhuman, or cruel punishment or to denial of adequate safeguards and proper procedure.2Ambedkar‟s draft also had included a provision that the State should not deprive any person of life, liberty or property without the “due process of law”3.
The Sub-Committee on Fundamental Rights discussed the subject and included in its draft report two clauses, 11 and 29:“11. No person shall be deprived of his life, liberty or property without due process of law.”
“29. No person shall be subjected to prolonged detention preceding trial, to excessive bail, or unreasonable refusal thereof, or to inhuman or cruel punishment.”4
The provision regarding the right to be informed of the authority and grounds of deprivation of one‟s liberty within twenty-four hours was omitted in view of the “due process of law” provision –clause 11. After much divergent debates and discussions on the most controversial “due process clause”, it was felt that draft Article 155 gave to Parliament a carte blanche to provide for the arrest of any person under any circumstances it deemed fit. Hence, a new Article 15 A was drafted. Introducing this Article in the Assembly on September 15, 1949, Ambedkar claimed that in substance the Article contained the substance of the law of “due processes”. The first two clauses embodied two of the most fundamental principles of justice recognised by every civilized country and which were already contained in the Criminal Procedure Code. He said, that the Article only sought to raise these principles to the status of constitutional guarantees so as to restrict the power of Parliament and state Legislatures to abrogate them by legislation. This Article, as moved by Ambedkar elicited wide criticism. Subsequent to a long debate, Ambedkar accepted certain points made by the critics. In response to a common point stressing on the need for fixing a time limit for informing the grounds of arrest to the arrested person, Ambedkar said that the words “as soon as may be” were integrally connected with clause (2), requiring no person to be detained in custody for more than twenty-four hours without authority for such detention being obtained from a Magistrate. Since the Magistrate had obviously to be told of the grounds of arrest, “as soon as may be” could not extend beyond twenty-four hours. Regarding another objection he agreed to add “and be defended by a legal practictioner” after the words “to consult” so as to remove any ambiguity.
He clarified that in order to curtail the complete power of the Union and the States to legislate on preventive detention, as already possessed by virtue of the entries in the lists, this new Article intended to render this power subject to certain specific limitations. In the absence of such a provision, the Legislatures might make any kind of law for preventive detention. Regarding another criticism as legitimate, he agreed to amend the draft Article to provide for the requirement to communicate the grounds of such detention to the person concerned as soon as may be –unless it was against public interest to disclose the facts. The new draft Article 15-A as amended was adopted by the Assembly. In the course of revision, the Draft Committee renumbered Article 15-A as Article 22.The proviso to clause (3) of Draft Article 15-A was converted into an independent clause (4) in the renumbered Art. 22 and clauses (3-a), (3-b) and (4) were redrafted and renumbered as clauses (5), (6) and (7) respectively. These changes were only of drafting nature.6
1.3 Constitutional Provisions Regarding Protection Against Arrest And Preventive Detention
Personal liberty of every individual holds significance in a free society like ours. No person can be detained without legal sanction. The right to personal liberty is a basic human right. There are three rights that stand independent of each other- the right to be made aware of the reason of arrest as soon as an arrest is made, the right to be produced before a Magistrate within twenty-four hours and the right to be defended by a lawyer of own choice. Besides these rights there is a general declaration that no person shall be deprived of his personal liberty except by procedure established by law, that insists on legality of action. The rights given by Article 22(1) and (2) are absolute in themselves and do not depend on other laws.7 Even though Articles 21 and 22 go together but they cannot be treated as inter-related or inter-dependent. In a way Article 22 advances the purpose of Article 21, as it not only specifies some guaranteed rights available to persons arrested or detained but also lays down, the manner to deal with persons detained preventively. 8 Art. 22 (3) & (4) enact two exceptions to the fundamental rights otherwise guaranteed to the arrested persons under Clause (1) & (2), i.e., these protections are not available in case of an enemy alien and a person arrested or detained under any law providing for preventive detention.
Rights of An Arrested Person
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A plain reading of first part of Article 22 of the Constitution of India, clearly indicates that a person who is arrested cannot be detained in custody without being informed, as soon as may be, of the grounds for such arrest. It means that he is to be informed of the grounds for his arrest. The personal liberty being the cornerstone of our social structure, the legal provisions relating to arrests have special significance.10Article 22 makes the minimum procedural requirements which must be included in any law enacted by legislature in accordance of which a person is deprived of his personal liberty. A person when arrested is undeniably deprived of his personal liberty. Some of the procedural protections have been provided to a person to be arrested in Sections 50, 50-A11, 55 and 75 of the CrPC. Section 50 casts a strict duty on the part of the police officer making the arrest immediately to communicate the grounds of arrest to the arrested person.
1.3.1.1 Right To Be Informed Grounds Of Arrest
A person’s personal liberty cannot be curtailed by arrest without informing him about the reason of his arrest, as soon as possible. In case of arrest by warrant/order, as the case may be, the warrant or the order itself must tell him, and where there is no warrant or order the person making the arrest must give him that information.12The basis of this rule is to enable the arrested person to prepare his defence, and to move the court for bail. A citizen’s liberty cannot be curtailed except in accordance with law. When a person arrested without warrant alleges by affidavit that he was not communicated with full particulars of the offence leading to his arrest in the face of such affidavit, the police diary cannot be perused to verify the police officer’s claim of oral intimation of such particulars. Even if such oral communication was made, whether full particulars were communicated not being known the arrest and detention of the person is illegal. 13
1.3.1.2 Right To Be Produced Before The Magistrate Within 24 Hours
Article 22 (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.
Art.22(2) provides one of the most material safeguard that the arrested person must be produced before a magistrate within 24 hours of such arrest so that an independent authority exercising judicial powers may without delay apply its mind to his case. The corresponding provisions in the CrPC are Sections 56 and 303. But the constitution makers were anxious to make these safeguards an integral part of the fundamental rights.This is a mandatory provision and is based on the policy of law that the magistrate before whom a prisoner is produced must be in a position to bring an independent judgement to bear on the matter. This provision is not to be treated as a mere formality. Its purpose is to enable the person arrested to be released on bail, or other provision made for his proper custody, while the investigation is pending for the offences with which he is charged pending an enquiry or trial. 14 The magistrate should apply judicial mind to see whether the arrest of the person produced before him is legal, regular and in accordance with law. He is not expected to act mechanically. The requirement to produce an arrested person before a magistrate may come to an end if he is released on bail.15
1.3.1.3 Right To Legal Assistance
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Article 22 (1). – No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds of such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. |
When a person arrested in relation to a cognizable offence and is first produced before a magistrate, he becomes entitled to the right to access to legal aid, to consult and to be defended by a legal practitioner. It is obligatory for such magistrate to make the arrestee fully aware of his right to consult and be defended by a legal practitioner and, that one would be provided to him from legal aid at the expense of the State if he has no means to engage a lawyer of his choice. A lawyer has to be provided at the commencement of the trial to every accused who is unrepresented by one, and is to be engaged to represent him during the entire course of the trial. It is the Constitutional duty of the court to provide him with a lawyer before the commencement of the trial even if the accused never asks for it or he remains silent, and this obligation is absolute. The failure to fulfil this obligation at the commencement of the trial would have the effect of vitiating the trial, the resultant conviction and sentence, if any, given to the accused. However, the failure to provide a lawyer to the accused at the pre-trial stage may not have the same consequence of vitiating the trial 16 Such a fundamental right given under this Article is not fettered by any reasonable restrictions. Any law that takes away this right offends against the Constitution. He becomes entitled to consult and to be defended by a legal practitioner of his choice as soon as he is arrested and continues so long as the effect of the arrest continues.17
In NandiniSathpathy v. P.L.Dhani 18 , it was observed that the spirit and sense of Art.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. The Court however, clarified that the lawyer cannot harangue the police, but may help his client and complain on his behalf.
In Poolpandithe Court did not accept that a person summoned for interrogation is entitled to the presence of his lawyer during questioning.19 In D.K. Basu v State of West Bengal20 , the Supreme Court issued directions to be followed as preventive measures in all cases of arrest or detention to the effect that the arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. In a recent case Directorate of Revenue Intelligence v Jugal Kishore Samra21, the Court did not accept the contention that the respondent is entitled as of right, to the presence of his lawyer at the time of his interrogation in connection with the case.
The right to consult and be defended by a legal practitioner is not to be interpreted as sanctioning or permitting the presence of a lawyer during police interrogation. The role of a lawyer, as per our legal system, mainly focuses on court proceedings. It is only for the purpose of resisting remand to police or judicial custody and for granting of bail; the accused would need a lawyer to explain to him the legal repercussions in case he intended to make a confessional statement in terms of Section 164 CrPC; to represent him in the court after the charge sheet is submitted by the police and to decide, upon the future course of proceedings, both at the stage of the framing of charges; and beyond that, for the trial.22The Criminal Procedure Code provides for the right to be defended by counsel, but not as a guaranteed right. The framers of the Constitution have made it a constitutional right by putting it beyond the power of any authority to alter it without the Constitution being altered. This condition cannot be altered by any authority even on grounds of public interest.23
1.3.2 Preventive Detention
The history of preventive detention pre-dates the Constitution and can be traced back to the Bengal State Prisoners Regulation, 1818, ever since 1950, the centre has been having preventive detention laws except for two brief gaps, between January 1970 and May 1971 and then from March 1977 till September 1980. In September 1980 the President promulgated the National Security Ordinance, 1980 which ultimately became the National Security Act, 1980. In addition to that there are other Central and State laws which provide for preventive detention. 24 The Parliament has wide legislative jurisdiction in the matter of preventive detention under entry 9, List I, for reasons connected with defence, foreign affairs, or the security of India. Under entry 3 List III, Parliament as well as the State Legislatures can concurrently make a law for reasons connected with security of State, maintenance of public order, or maintenance of supplies and services essential to the community.25 Parliament can also enact law on preventive detention in exercise of its residuary power on any other ground. 26
1.3.2.1 Nature And Scope
Preventive detention means detention of a person without trial and conviction by a court, merely on the basis of suspicion or reasonable probability in the mind of an executive authority that the detenue has the potential of committing prejudicial act. Preventive detention has been regarded as „sinister-looking‟ feature out of place in a democratic Constitution, necessarily designed to prevent the abuse of freedom by anti-social and subversive elements which might imperil the national welfare.27
It is a drastic power to detain a person without trial and in many countries it is not allowed to be exercised except in times of war or aggression. Preventive detention has not been unknown in other democratic countries like Britain, U.S.A. and Canada, but limited as a war time measure. 28 The Indian Constitution recognises preventive detention in peace time also. It is preventive, not punitive, in theory. The purpose of preventive detention is not to punish an individual for any wrong done by him, but to curtail his liberty, with a view to pre-empt him from indulging in conduct injurious to the society.29
The power of preventive detention is a frightful and awesome power with drastic consequences affecting personal liberty, which is the most cherished and prized possession of man in a civilised society. The law of preventive detention must, therefore, pass the test not only of Article 22 but also of Article 21. It is a power to be exercised with the greatest care and caution and the courts have to be ever vigilant to see that this power is not abused or misused, inasmuch as the preventive detention is qualitatively different from punitive detention and their purposes are different. In case of punitive detention, the person has fullest opportunity to defend himself, while in case of preventive detention, the opportunity that he has for contesting the action of the Executive is very limited. Therefore, the “restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal”.30 The Constitution (Forty-Fourth Amendment) Act, 1978 amended Article 22 for introducing a few more safeguards in case of preventive detention which are as follows:
(i) The maximum period for which a person may be detained without obtaining the opinion of the advisory board has been reduced from three to two months. In all cases of preventive detention beyond two months, advisory board is to be consulted. There will be no preventive detention beyond two months unless the advisory board reports that there is in its opinion sufficient cause for such detention.
(ii) An advisory board is to consist of a chairman and not less than two other members, the chairman being a serving Judge of the appropriate High Court and the other two members being the serving or retired High Court Judges. The board is to be constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court.
(iii) No person is to be kept in preventive detention beyond the maximum period prescribed by any law made by the Parliament.
However, the changes have not yet been notified. 31
1.3.2.2 Safeguards Against The Order Of Preventive Detention
Art. 22 Clauses (4) to (7) lay down a few safeguards, and provide for minimum procedure to be observed in case of preventive detention. Any law or administrative action relating to preventive detention infringing these safeguards would be rendered invalid as infringing the fundamental rights of the detainee. The scope and ambit of these safeguards and those evolved by the judicial interpretation aim at protecting the liberty of detenue against bureaucratic lethargy, insensitivity, red tape and casual approach.32
1.3.2.4 Communication Of Grounds Of Arrest
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Article 22 (5).- When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. |
Art. 22(5) casts a dual obligation on the detaining authority:
- (i) to communicate the grounds of detention to the detenu at the earliest;
- (ii) to afford him the earliest opportunity of making a representation against the detention order which implies the duty to consider and decide the representation when made, as soon as possible.
But without getting information sufficient to make a representation against the order of detention it is not possible for the detenue to make the representation. The import of Art. 22(5) is that all facts and particulars which influence the detaining authority in arriving at its satisfaction must be communicated to the detenue. An effective representation is not possible against the detention order unless copies of material documents considered and relied upon by the detaining authority in arriving at his satisfaction to detain the detenue were supplied to him.33 Grounds supplied to the detenue which are vague or in a language with which he is not conversant would not provide him the effective knowledge of facts and circumstances on which the order of detention was based. This will vitiate the order of detention.34
Non-consideration by the government of the representation filed by a counsel on behalf of the detenue vitiates his detention. Representation by the counsel is representation by the detenue himself and it ought to be considered by the authority concerned.35 The right of a detenue to consult a legal adviser of his choice in not only confined for the purpose of defence in a criminal proceeding but extends also for securing release from preventive detention or filing a writ petition or prosecuting any claim or proceeding, civil or criminal. This right is obviously included in the right to live with human dignity and is also part of personal liberty. The detenue cannot be deprived of this right, except in accordance with reasonable, fair and just procedure established by a valid law.36
1.3.2.3 Delay In Making An Order Of Detention To Be Explained
The right of representation under Art. 22 (5) is a valuable constitutional right and is not a mere formality. Art. 22 (5) makes it obligatory for the detaining authority to afford the earliest opportunity to the detenue to make representation, and that must be necessarily construed to embody the constitutional right to a proper and expeditious consideration of the representation by the authority concerned.37 To make this right of representation effective it must be considered and disposed of expeditiously by the concerned authorities otherwise the basic purpose of affording the earliest opportunity of making the representation is likely to be defeated.
The court is required to be cautious and pragmatic while dealing with the question of delay in making an order of detention. The Court has to identify live link between the prejudicial activity and the order of detention. The only requirement is the satisfactory explanation of the delay. The unexplained, undue long delay between the prejudicial activity and making of the order of detention, renders the order of detention vulnerable, liable to be quashed. There is no precise rule formulated in this regard. In case of undue and long delay the court has to investigate whether the link has been broken in the circumstances of each case. The delay in issuing the order of detention is a valid ground for quashing an order of detention.38 Similarly, unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenue, would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority. This may lead to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenue with a view to preventing him from acting in a prejudicial manner.39
1.3.2.4 Effect Of Non-Application Of Mind
When a person is enlarged on bail by a competent criminal court, the validity of an order of preventive detention, based on the very same charge which is to be tried by the criminal court, should be scrutinized with great caution. 40 In a case where a detenue is released on bail and is enjoying his freedom under the order of the court at the time of passing the order of detention, such order of bail must be placed before the detaining authority to enable him to reach at the proper satisfaction. Otherwise, non-placing and non-consideration of such vital material as the bail order would vitiate the subjective decision of the detaining authority.41 The detention order would be bad if the detaining authority is not made aware of the fact that the bail application of the detenue was pending on the date when the detention order was passed.42
1.3.2.5 Advisory Boards
Another safeguard provided by Art.22(4) is that preventive detention for over three months is possible only when an advisory board holds that, in its opinion, there is sufficient cause for such detention. On a reading of clause (a) to Article 22(4) and the proviso thereto and clause (b), it can be seen that what is prohibited is the detention of a citizen for more than three months as per the law made by the State which contained no provision for an Advisory Board as constituted as per clause (a) to Article 22(4) for giving opinion as to whether the detention is with sufficient cause. Therefore, if the State law contains no provision for such Advisory Board, such law will be unconstitutional.43
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Article 22(4).- No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-
a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7). |
While interpreting Art. 22(4), the Supreme Court has spelled out the rule that not only the advisory board should report about its opinion regarding sufficiency of cause for the detention of the detenu within three months of the date of detention order, but that the government should also confirm and extend the period of detention, beyond three months, within the three months time limit.44 Clause (7) of Article 22 confers power on the Parliament to make a law prescribing the maximum period for which any person may, in any class or classes of cases, be detained under any law providing for preventive detention. Article 22 (7)(a) came up for interpretation before the Supreme Court in SambhuNathSarkar vState of West Bengal 45 . Section 17- A of the Maintenance of Internal Security Act that provided five of the six heads mentioned in the Constitution for which a law of preventive detention could be made while dispensing the reference to an advisory board, was declared to be unconstitutional by the Apex Court. It was clarified by the Court that Article 22 (7)(a) being an exception to Article 22 (4) and also being a drastic law by its very nature, should only be used in extraordinary and exceptional circumstances. The Parliament, as per the Hon‟ble Court, was required to prescribe both the “circumstances” under which and the “class of cases” in which the reference to the Advisory Board could be dispensed with. It is to be noted that Artcle 22 (7)(a) empowers only the Parliament and not a State Legislature for making such a law that does away with the requirement of obtaining the opinion of the Advisory Board in appropriate cases.
Article 22 (7).- Parliament may by law prescribe-
a) the circumstances under which, and the class or classes in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);
b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).
Conclusion
In order to maintain law and order, the police being the law enforcement agency have to be given powers. Under the preventive detention legislation a person can be detained without trial merely on the basis of reasonable suspicion in the mind of the executive of having potential of committing prejudicial act. In order to avoid the probable chances of misuse of this power against the accused or the detenue, as the case may be, certain procedural safeguards have been afforded to the accused/detenue. Right to know the grounds of arrest, right to consult and be defended by the lawyer of ones choice, right to be brought before the magistrate within 24 hours, and in case of the detenue in preventive detention the right of representation and the limit of three months detention etc. have been provided as sufficient safeguards.
Summary
Protection is granted to the citizens of India against arrest and detention, as per Art.22. However, in certain cases, in deviation of normal procedure, and subject to the further provisions contained therein, arrest and detention can be effected.46 Arrest and detention indubitably take away the right of personal liberty of a person which is a basic human right. However, for the judicial process to take effect it becomes essential to curtail this precious right. In order to keep a check on the police action and to delimit the power of the state in enacting law relating to preventive detention, it becomes pertinent to have some safeguards to ensure prevention of miscarriage of justice. The trinity of rights as enshrined in Article 22(1) and (2) guarantee three basic rights to ensure fair trial -the right to be made aware of the grounds of arrest as soon as an arrest is made, the right to be produced before a Magistrate within twenty-four hours and the right to be defended by a lawyer of own choice. Art. 22 (3) & (4) enact two exceptions to the fundamental rights otherwise guaranteed to the arrested persons under Clause (1) & (2), i.e., these protections are however, not available in case of an enemy alien and a person arrested or detained under any law providing for preventive detention. Preventive detention means detention of a person without trial and conviction by a court, merely on the basis of suspicion or reasonable probability in the mind of an executive authority that the detenue has the potential of committing prejudicial act. Various safeguards have been provided for the person detained under preventive detention legislations, like right of effective representation, limit of three months period detention and opinion of advisory board to consider cases where detention may be extended beyond three months. However, Clause (7) of Article 22 confers power on the Parliament to make a law prescribing the maximum period for which any person may, in any class or classes of cases, be detained under any law providing for preventive detention, that too without the opinion of the advisory board. This provision is not applicable to state legislations. The Forty-Fourth Amendment sought to change the composition of the advisory board with a view to make the board independent of the executive and to ensure objectivity while dealing with the cases of preventive detention. However, these constitutional amendments have not yet come into effect and Articles 22 (4) to (7) still continue to be the same as they stood before the amendment.