Notes

Article 22

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Article 22

Protection Against Arrest or Detention
Article 22 provides safeguards for individuals who are arrested or detained. There are two types of detention:
  1. Punitive Detention: Punishes a person for an offense committed after a trial and conviction in a court.
  1. Preventive Detention: Detains a person without trial or conviction to prevent future offenses. It is precautionary and based on suspicion.
Rights under Article 22:
➤ For Ordinary Law Cases:
  1. Right to Know: The person must be informed of the reasons for their arrest.
  1. Right to Legal Counsel: The person has the right to consult and be defended by a lawyer.
  1. Right to a Magistrate: The person must be presented before a magistrate within 24 hours (excluding travel time).
  1. Right to Release: The person must be released after 24 hours unless the magistrate allows further detention.
➤ For Preventive Detention Law Cases:
  1. Three-Month Limit: Detention can't exceed three months without an advisory board's approval. The board includes high court judges.
  1. Grounds of Detention: The reasons for detention must be provided to the detainee. However, some facts may not be disclosed if they threaten public interest.
  1. Right to Representation: The detainee must be allowed to contest the detention order.
44th Amendment Act (1978):
  • This amendment reduced the period of detention without an advisory board's opinion from three months to two months. However, this provision has not yet been implemented, so the original three-month period still applies.
 
The preventive detention laws made by the Parliament are:
  1. Preventive Detention Act, 1950: Expired in 1969.
  1. Maintenance of Internal Security Act (MISA), 1971: Repealed in 1978.
  1. Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974.
  1. National Security Act (NSA), 1980.
  1. Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act (PBMSECA), 1980.
  1. Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985: Repealed in 1995.
  1. Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988.
  1. Prevention of Terrorism Act (POTA), 2002: Repealed in 2004.
  1. Unlawful Activities (Prevention) Act (UAPA), 1967: Amended in 2004, 2008, 2012, and 2019.
It's notable that preventive detention is a significant part of the Indian Constitution, unlike most democratic countries around the world.