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Article 22 of the Indian Constitution is popularly known as an extension of the right to freedom. This article propounds the rights of an individual in case of arbitrary arrest or punitive detention. It further mentions safeguards against preventative detention. While this article was originally cited with the view of safeguarding society from abuse of the constitution and undermining of its sanctity at the behest of relevant authorities, it has been much debated and termed “controversial”. Because the article has been “open to interpretation and highly subjective, its grounds are arbitrary. It has frequently been attacked in the history of India, with pointers towards the worst excesses of emergency in 1975 as an example of the misuse which Article 22 allows.

This article will further discuss the provisions of Article 22 and its relevant aspects.

Article 22

Article 22 of the Indian constitution stands out for its equal applicability to citizens and non-citizens alike, post-incarceration. It basically enshrines the idea of individuals, shielding them from random detention and arrest.

Per this article, every person should be promptly informed of the reasons for his/her arrest. They also undeniably reserve the right to consult a legal counsel and should be produced before the nearest legal authority within 24 hours of their arrest. And unless there is solid ground or directives by qualified judicial authorities, the preventive detention period for any individual cannot exceed 90 days.

In case an individual has been arrested under a law that necessitates such preventive detention, they must be immediately informed of the grounds they’ve been booked under, alongside giving them a fair, unbiased chance to put forward their case. The only exception to such disclosures is if the person arrested has been charged on serious grounds that go against the security interests of the general public

Preventive Detention Laws

Preventive Detention, as the name suggests, is the act of detaining a person on the grounds of mere apprehension. Thus, an individual can either be detained or jailed if they have been convicted of a crime, or if there is a reasonable belief that they will commit a crime in the near future.

Preventive detention is loosely called a ‘necessary evil’ of the constitution because it facilitates the belief of “prevention is better than cure” and thus, upholds harmony in a society. However, it can also be abused by the authorities in circumstances that aren't just or reasonable. Its nature is contradictory and contentious, as it allows infringement of fundamental rights. The provision only mentions the rights people could exercise when they are detained but speaks nothing about any specific grounds or necessary provisions of detention. This allows the concentration of enormous powers in the hands of authorities which inevitably leads to the curbing of the masses’ freedom.

History of Preventive Detention

The Preventive Detention Act was enacted by India’s provisional parliament in 1950. The act empowered the government to detain without charge in the name of public safety and security. The act was succeeded by the Maintenance of Internal Security Act (MISA) in 1969 because the previous act was condemned on grounds of arbitrariness. MISA was allowed to retire in 1978 following the misuse of preventive detention in the infamous emergency scenarios. After this, the National Security Act was enacted, which is still applicable today.

The Necessity of Such Provision

This provision aims to prevent people from disrupting the peace and stability of society. These disruptions can amount to endangering the security of the state, disturbing relations of India with foreign powers, or hindering the maintenance of public order.

India follows preventive detention even in times of peace, which has been contented for a long time now. While no other civilized nation has this proposition during peacetime.

Constitutional safeguards against Preventive Detention Laws

Per Article 22, certain remedial and protective rights have been accorded to the detainees, they are:

  1. Advisory Board: Under Clause 4 of the article, no authority has been given leeway to detain a person for a period exceeding 3 months, without review and consequent approval for the same by an advisory board. The constituents of this advisory board will be judicial officers, holding the qualifications of a high court judge. Moreover, the report is mandated to be submitted before the expiration of said 3 months.
  2. Communication of grounds of detention to detainee: Under Clause 5 of the article, authorities detaining a person under any preventive detention law, are required to clearly communicate the grounds for the same, to the detenu.The ground of detention should have a rational and direct connection with the object which the detainee is prevented from attaining. The aforementioned communication should consist of relevant material facts and should not be a mere statement of facts.
  3. Detainee’s Right of representation: Under Clause 5 of the article, a detainee has the right to representation upon hearing the grounds of such detention. The authority providing the detention would be obliged to offer the earliest opportunity to attain such representation against the order.

Case laws

1. Nand Lal Bajaj Vs The state of Punjab and Anr. [1981 AIR 2041 ,1982 SCR (1) 718]

In the case, the Supreme Court commented that the structure of the legislative and the preventive detention legislation was incompatible together. It further propounded that any frequent Court action in such circumstances could be deemed an infringement on the

legislative and executive branches of government.

2. AK Gopalan Vs State of Madras [AIR 1950 SC 27,]

A.K Gopal was a communist leader who was sentenced in 1947, via a criminal procedure. While his conviction was later overturned, during her sentence in jail, he was served with an order under Section 3(1) of the Preventive Detention Act, 1950. Gopalan sought a writ of habeas corpus against his incarceration but under the prevalent law, was barred from divulging the grounds for his detention, even in the court of law. This was a landmark case wherein the supreme court limited personal liberty enshrined in Article 21, to merely the immediate physical body. This interpretation was however later broadened and overturned in the case of Maneka Gandhi.

3. Joginder Kumar Vs State of Uttar Pradesh [1994 AIR 1349, 1994 SCC (4) 260]

In this case, the Apex court established concrete grounds for an individual’s arrest. This case thus gave firm “guidelines for arrest ” and is colloquially called the” guidelines of arrest case”.Due to the rise in crime rates and indiscriminate arrests over time, the Supreme Court sought to strike a balance between the two in this decision.


The preventive detention provision has always lacked the element of ‘check and balance’ over its establishment and practice. This infringes on people’s rights and goes in contravention of the principle of natural justice. A major concern of preventive detention is that it is a very wide provision, without any mention of specifications and limitations, which exposes it to a wider context of interpretation thereby vesting major power in the hands of authority.

For any recourse, the provision must be looked into from an analytical perspective and amended accordingly.

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