PROTECTION AGAINST ARREST AND DETENTION (Article-22)



• Article 22 grants protection to persons who are arrested or detained. Detention is of two types, namely, punitive and preventive. Punitive detention is to punish a person for an offence committed by him after trial and conviction in a court.Preventive detention, on the other hand, means detention of a person without trial and conviction by a court. Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the near future.

• The Article 22 has two parts—the first part deals with the cases of ordinary law and the second part deals with the cases of preventive detention law.

Article 22 :

• The Article 22 has two parts—the first part deals with the cases of ordinary law and the second part deals with the cases of preventive detention law.

• The first part of Article 22 confers the following rights on a person who is arrested or detained under an ordinary law:

i. Right to be informed of the grounds of arrest.

ii. Right to consult and be defended by a legal practitioner.

iii. Right to be produced before a magistrate within 24 hours, excluding the journey time.

iv. Right to be released after 24 hours unless the magistrate authorises further detention.

• These safeguards are not available to an enemy alien or a person arrested or detained under a preventive detention law. The Supreme Court also ruled that the arrest and detention in the first part of Article 22 do not cover arrest under the orders of a court, civil arrest, arrest on failure to pay the income tax, and deportation of an alien.

• The second part of Article 22 grants protection to persons who are arrested or detained under a preventive detention law. This protection is available to both citizens as well as aliens and includes the following:

i. The detention of a person cannot exceed three months unless an advisory board reports sufficient cause for extended detention. The board is to consist of judges of a high court.

ii. The grounds of detention should be communicated to the detenu. However, the facts 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.

• Article 22 also authorises the Parliament to prescribe as:

(a) the circumstances and the classes of cases in which a person can be detained for more than three months under a preventive detention law without obtaining the opinion of an advisory board;

(b)  the maximum period for which a person can be detained in any classes of cases under a preventive detention law; and

(c) the procedure to be followed by an advisory board in an inquiry.

(d) Preventive Detention Act, 1950. Expired in 1969.

(e) Maintenance of Internal Security Act (MISA), 1971. Repealed in 1978.

(f) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974.

(g) National Security Act (NASA), 1980.

(h) Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act (PBMSECA), 1980.

(i) Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985. Repealed in 1995.

(j) Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988.

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

• It is unfortunate to know that no democratic country in the world has made preventive detention as an integral part of the Constitution as has been done in India. It is unknown in USA. It was resorted to in Britain only during first and second world war time.

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