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Art 22

Preventive detention in India allows authorities to detain individuals without trial based on suspicion of potential harm to national security or public order, governed by Article 22 of the Constitution and specific legislative acts. Safeguards include a maximum detention period of three months without Advisory Board approval, the right to be informed of the grounds for detention, and the opportunity to challenge the detention. While Article 22 provides certain protections, these do not apply to all cases, and the Supreme Court has upheld the constitutionality of preventive detention laws when they adhere to procedural safeguards.

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16 views4 pages

Art 22

Preventive detention in India allows authorities to detain individuals without trial based on suspicion of potential harm to national security or public order, governed by Article 22 of the Constitution and specific legislative acts. Safeguards include a maximum detention period of three months without Advisory Board approval, the right to be informed of the grounds for detention, and the opportunity to challenge the detention. While Article 22 provides certain protections, these do not apply to all cases, and the Supreme Court has upheld the constitutionality of preventive detention laws when they adhere to procedural safeguards.

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Discuss in detail the preventive detention under Constitution of India.

Or
State the safeguards against preventive detention under article 22 of
Constitution

Introduction-
1. Two Types of Detentions:
o Preventive detention is when a person is held in police
custody only on the basis of a suspicion that they would conduct
a criminal act or cause harm to society.
o Punitive detention which means detention as a punishment for a
criminal offence. It occurs after an offence is actually committed,
or an attempt has been made towards the commission of that
crime.
2. Preventive detention in India refers to the detention of an individual
without trial, based on the suspicion that they might engage in
activities harmful to national security or public order.
3. In India, preventive detention is governed by both the Constitution and
various legislative acts.
4. Article 22 of the Indian Constitution provides the basic framework,
while specific laws like the National Security Act (NSA), Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act
(COFEPOSA), and others detail the procedural aspects.

Preventive Detention

 Preventive detention refers to taking into custody an individual who


has not committed a crime yet but the authorities believe him to be a
threat to law and order.
 The Supreme Court in Alijav v. District Magistrate, Dhanbad, stated
that while criminal proceedings relate to punishing of a person for an
offence committed by him, preventive detention does not relate to an
offence.
 The power to make Preventive Detention laws in India comes from the
Constitution itself which empowers the Parliament to make such laws
for reasons connected with Defence, Foreign Affairs or the Security of
India. Parliament has exclusive legislative powers.
 The Union and the States have concurrent legislative powers for
reasons connected with the security of a State, the maintenance of
public order or the maintenance of supplies and services essential to
the community.
 Such detention involves custody without any criminal trial, moreover,
these laws need not follow the procedural guarantees which are
fundamental to the detention of an individual in the normal course.

o Safeguards Available to the Detained Person:


 A person may be taken to preventive custody only for 3 months.
 The period of detention may be extended beyond 3 months,
only after approval by the Advisory Board.
 The detainee has the right to know the grounds of his/her
detention.
 However, the state may refuse to tell the grounds if it is
necessary to do so in the public interest.
 The detainee is provided an opportunity to challenge his/her
detention.

Right to be Informed of Grounds of Detention:


 Clause (1): Article 22(1) stipulates that no person who is detained
under preventive detention can be detained for more than three
months unless an Advisory Board, appointed by the government,
reports that there is sufficient cause for such detention. Additionally,
the person must be informed of the grounds of their detention and
must have the opportunity to make a representation against the
detention.
Right to Legal Representation:
 Although Article 22(1) does not explicitly mention the right to legal
representation, it is generally understood that individuals have the
right to consult a legal practitioner to challenge the grounds of their
detention and to make a representation to the Advisory Board.
Detention Beyond Three Months:
 Clause (3): Article 22(3) states that the protections of Article 22(1)
are not applicable to cases of preventive detention if the detention is
ordered by the executive authority under specific laws related to
preventive detention. However, the detention cannot exceed three
months without the approval of the Advisory Board.
Advisory Board:
 Clause (4): Article 22(4) provides for the formation of an Advisory
Board to review the detention of individuals who have been held for
more than three months. This board is responsible for assessing
whether there is sufficient cause for the detention and is meant to act
as a check on the arbitrary exercise of power.
Constitutional Limitations:
 Article 22(5): This clause clarifies that the provisions related to
preventive detention do not apply to certain categories of detention
under laws enacted by Parliament. Such laws must conform to the
principles laid down by the Constitution and respect the fundamental
rights guaranteed under it.
 The first case to come before the Supreme Court was AK Gopalan v.
State of Madras, in which the Court upheld the validity of the
Preventive Detention Act. Moreover, the Court also held that Article 22
of the Constitution also provides exhaustive procedural safeguards
with respect to preventive detention. Therefore, the Court said that
fundamental rights were not violated by the impugned act because it
met all the procedural safeguards that are provided in Article 22(5).
 In Hussainara Khatoon v. Home Secretary, State of Bihar (1979) the
Supreme Court held that every accused individual lacking the means
to secure legal representation possesses a constitutional entitlement
to receive free legal services from the State. It is the constitutional
duty of the State to provide a lawyer to such individuals if the
demands of justice require it. Failure to offer free legal aid could lead
to the trial being nullified for contravening Article 21.

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