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Legopedia

Article 22 of the Constitution of India

Preventive Detention Law

Introduction –

The Constitution of India has Fundamental Rights not just for ordinary citizens but also for prisoners and the accused who have been charged for some offence. Article 22 is one such Fundamental Right which safeguards the rights of individuals who have been arrested and detained for committing an offence. Fundamental Rights can be found under Part III of the Constitution of India.

Definition –

 Subclause (1) of Article 22 says that "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice."  
This means that if a person has been arrested cannot be detained without knowing his grounds of arrest;
he shall not be denied the right to consult and be defended by a lawyer/legal practitioner of his/her choice.
Subclause (2) of Article 22 says that "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."
This means that the arrested person who has been detained in custody has to be produced before the nearest magistrate within the time-frame of twenty-four hours of such arrest which excludes the time taken to travel from the jail to the court of the magistrate. No detainee shall be kept in custody beyond this time-frame without the approval of the magistrate.

The Right under Article 22 –

As mentioned in the definition, sub-section(1) says that a person who has been arrested must know the grounds of arrest. So if a person has been arrested on charges of Murder under Section 302 of the Indian Penal Code, then he must know the reason for his detention.

Further, subclause(1) stipulates that the arrested or the detained person has the right to be consulted and defended by a legal practitioner, i.e., a lawyer of his/her choice.

Subclause(2) of Article 22 says that an arrested or the detained person has to be produced before the nearest magistrate within the time frame of twenty-four hours of such arrest. This time is exclusive of the time necessary for the journey from the arrested place to the court. The arrested person shall not be allowed to be kept in custody beyond the said period without the authority of the Magistrate. This is known as the Writ of Habeas Corpus. This writ is issued in the nature of an order calling upon the person who has detained another person to produce the latter before the Court of law. This is done in order to let the court know on what grounds he has been confined and to set him free if there is no legal justification for the same. However, it is to be noted that a writ of habeas corpus cannot be issued to secure a release of a person who has been imprisoned by the court of law on a criminal charge.

Preventive Detention Law –

The law of “Preventive Detention” means detention of any person without trial. It is different from punitive detention. The object of punitive detention is to punish an individual for what he has committed and after he is tried by the courts for the illegal acts committed by him/her. Preventive detention, on the other hand, prevents the person from doing something and the detention in such cases takes place due to the apprehension of the fact that he is going to do something wrong which comes within the ambit of the grounds specified by the Constitution of India which includes acts prejudicial to the security of the State, Public Order, Maintenance of supplies and services essential to the community, defence and foreign affairs.

Article 22(3) and Article 22(4) throw light upon the Preventive Detention Law in India.

Sub-clause (3) of Article 22 says that “Nothing in clauses ( 1 ) and ( 2 ) shall apply to –(a) to any person who for the time being is an enemy alien or(b) to any person who is arrested or detained under any law providing for preventive detention.” 

Thus, there are two exceptions here –

a) a person shall not be an enemy alien and;

b) a person shall not be arrested or detained under any law which provides for preventive detention.

These are the exceptions to Article 22(1) and Article 22(2) of the Constitution of India.

Sub-clause (4) of Article 22 says that “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.”

Amendment to Article 22 –

The Janata Part sought to amend Article 22 by effecting changes in Clause (4) and (7) of Article 22 through the 44th Amendment Act of 1978. However, before any such notification could be issued, the Janata Party fell, and Indira Gandhi returned to power, and her Government refused to issue such notifications. Till today, Article 22 clauses relating to Preventive Detention stands as it is.

CONCLUSION –

Human Rights are above all rights. No right can override the basic and fundamental rights of a human being. Article 22, being one of the Fundamental Rights, is extremely important in a country like India, which has a massive population a massive crime rate. Article 22 ensures that each arrested person undergoes trial and is being represented adequately in a legal manner. Article 22 did not exist in the Draft Constitution of India. It was added after the discussions of the Constituent Assembly. This right comes under “Right to Freedom” and is one of the most important safeguards for the arrested and the detainees of India. In other words, it prevents the arbitrary arrest of individuals.

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by mayank barman

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