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Article 22(1) and 22(2) has the below provisions.

 Well, a person cannot be arrested and also detained without being

informed why he is being arrested.
 However, a person who is arrested cannot be denied to be defended by
the legal practitioner of his choice. In fact, this means that the arrested
persons has the right to hire the legal practitioner to defend himself/
herself.
 Well, every persons who has been arrested will be produced before the
nearest magistrate within the 24 hours.
 The custody of the detained person cannot be beyond the said period
except by the authority of magistrate.

However, the Article 22(3) says that the above safeguards are not available to
the following: [i]If the person is at the time being an enemy alien. [ii]If the
person is arrested under the certain law which is made for the purpose of the
“Preventive Detention”.

 Two parts of Article 22: First part deals with the cases of ordinary
law (i.e. when a person is alleged to have committed an offence) and
the second part deals with the cases of preventive detention law [i.e.
when police authorities are suspicious].

The first part of the Article 22 confers the following rights on a person
who is arrested or the detained under the ordinary law: (i) The right to be
informed of the grounds of arrest. (ii) The right to consult and to
be defended by the legal practitioner. (iii) The right to be produced before
a magistrate within 24 hours, excluding the journey of the time. (iv) Right to
be released after 24 hours unless the magistrate authorizes further
detention. In fact, these safeguards are not available to an alien or a person
arrested or to detained under a preventive the detention law. Note:
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 1. In Hussainara Khatoon case, S.C. declared Right to Free Legal Aid as
the Fundamental Right. 2. Constitutional Amendment Act, 1976
provided for Article 39A: Free legal Aid.

Observation: Even Supreme Court can enact a DPSP into a Fundamental

Right. Well, the second part of the Article 22 grants protection to the
persons who are arrested or detained under the preventive detention law.
Well, this protection is available to both the citizens as well as aliens and it
includes the following: (i) The detention of the person cannot exceed three
months unless an advisory board reports sufficient cause for the extended
detention. In fact, the board is to consist of the judges of the high court. (ii)
The grounds of detention should be communicated to the detenu. However,
the facts which is considered to be against the public interest need not be
disclosed. (iii) The detenu should be afforded an opportunity to make a
representation against the detention order. The essence of Article 22(2) is that
this right is available only against illegal detention and not against custody of
person on the basis of a judicial order.

 Safeguards against the misuse of power of Detention

1. The Every case of the preventive detention must be authorized by the

law and not at the will of the executive.
2. In fact, the Preventive detention cannot extend beyond a period of the 3
months .
3. The every case of the preventive detention must be placed before an
Advisory Board composed of the Judges of the High Court (or persons
qualified for Judges of the High Court)
4. In fact, the case must be presented before the Advisory Board approx
within 3 months.
5. A continued detention after 3 months must have consent of the
Advisory Board.
6. In fact, the person will be given the opportunity to afford the earliest
opportunity to make a representation against the preventive detention.
7. No person can be detained indefinitely.

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 Examples of Preventive Detention Laws since Independence

1. Well, the first Preventive Detention Act was passed in the year of
1950.

 The validity of this act was challenged in the Supreme Court in

the Gopalan v/s State of the Madras Court. In fact, the Supreme Court
held this act constitutionally valid except the some provisions. However,
this act expired in the year of 1969, and also before it expired, it was
amended for approx 7 times, each expansion was to make it valid for 3
more years and also this it was extended till 31 December in the year of
1969.

1. Maintenance of Internal Security Act (MISA), 1971.

 Well, the MISA was basically a modified version of the PDA Act. It was
abolished in the year of 1978.

1. The conservation of the Foreign exchange and also the Prevention

of Smuggling Activities (COFEPOSA) was enacted in the year of 1974
and it continued.
2. National Security Act (NASA), 1980.
3. Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985.
Repealed in 1995
4. The prevention of Illicit Traffic in the Narcotic Drugs and also the
Psychotropic Substances Act (PITNDPSA), 1988.

7. Prevention of Terrorism Act (POTA), 2002. Repealed in 2004.

 Demand for notification of Section 3 to Article 22

 Section 3 of the Constitution (44th Amendment) Act, 1978, which
has not been notified, despite passage of more than three and a half
decades of its passing.
 Section 3 substitutes Clauses 4 and 7 in Article 22 of the Constitution
relating to the subject of “preventive detention”, often referred to
as “constitutional tyranny,” much abused during the Emergency
period.
 Salient provisions of the amended clause: [i]The duly amended but
yet-to-be-enforced Clause 4 stipulates that no law providing for
preventive detention shall authorize the detention of a person for more
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 than two months unless an Advisory Board constituted in the
accordance with the recommendations of the Chief Justice of the High
Court has reported before the completions of the two months that there
is sufficient cause for the detentions.
 As of today, in Clause 4, the ‘maximum period’ is three months and
there is no mention of the Chief Justice, much less his assigned role.
[ii]The amended clause also provides that the Advisory Board would
consist of a chairman & not less than two other members with the
former being a serving judge of the appropriate high court and the
latter two being either serving or retired judges of any high court.
 At present, no strength is prescribed for the board. And the executive
government may on its own appoint people on the board who may not
even be serving/retired high court judges, though they have to be
“qualified” for the job.
 Other recommendations:

1. A Constitution Bench of the Supreme Court in December 1981 by a

majority judgment in “AK Roy vs. Union of India” ruled that as the Act
required the executive government to issue the requisite notification so
as to appoint dates for commencement of different sections of the Act.
2. The National Commission to Review the Working of the
Constitution (NCRWC), in its final report of March 2002, had also
strongly recommended its immediate enforcement. It even mooted a
suggestion for incorporating explicitly that the maximum period of
preventive detention should not exceed six months in the amended
Article 22.

Practice Question Question. “Certain Fundamental Rights are

Fundamental curtailments.” Elucidate. Difference between Punitive
Detention and Preventive Detention.

 Punitive detention is to punish a person for an offence committed by

him after trial and conviction in a court.
 The preventive detention, on the other hand, means detention of the
person without trial and also the conviction by the court. In fact, its
purpose is not to punish a person for a past offence but to prevent
him/her from committing an offence in the future. →Thus, preventive
detention is only a precautionary measure and based on suspicion.
which may or may not materialise

Article 22(7) authorises the Parliament to prescribe: (1) the circumstances

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and the classes of cases in which a person can be detained for more than the
three months under the preventive detention law without obtaining the
opinion of an advisory board; (2) the maximum period for which a person can
be detained in any classes of cases under a preventive detention law; and (3)
the procedure to be followed by an advisory board in an inquiry.

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