Protection Against Arrest or Detention
Article 22 provides safeguards for individuals who are arrested or detained. There are two types of detention:
- Punitive Detention: Punishes a person for an offense committed after a trial and conviction in a court.
- 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:
- Right to Know: The person must be informed of the reasons for their arrest.
- Right to Legal Counsel: The person has the right to consult and be defended by a lawyer.
- Right to a Magistrate: The person must be presented before a magistrate within 24 hours (excluding travel time).
- Right to Release: The person must be released after 24 hours unless the magistrate allows further detention.
➤ For Preventive Detention Law Cases:
- Three-Month Limit: Detention can't exceed three months without an advisory board's approval. The board includes high court judges.
- 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.
- 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:
- Preventive Detention Act, 1950: Expired in 1969.
- Maintenance of Internal Security Act (MISA), 1971: Repealed in 1978.
- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974.
- National Security Act (NSA), 1980.
- Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act (PBMSECA), 1980.
- Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985: Repealed in 1995.
- Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPSA), 1988.
- Prevention of Terrorism Act (POTA), 2002: Repealed in 2004.
- 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.